Uttarakhand High Court
Lalit Mohan Bhagat And Another ..... ... vs State Of Uttarakhand And Another on 11 May, 2022
Author: Ravindra Maithani
Bench: Ravindra Maithani
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Criminal Miscellaneous Application No. 1856 of 2019
Lalit Mohan Bhagat and Another ..... Petitioners
Vs.
State of Uttarakhand and Another ..... Respondents
Mr. Bhagwat Mehra, Advocate for the petitioner.
Mr. Lalit Miglani, A.G.A. for the State of Uttarakhand.
JUDGMENT
Hon'ble Ravindra Maithani, J.(Oral) The challenge in this petition is made to the Charge Sheet No. 13 of 2018, cognizance order dated 13.08.2019 as well as the entire proceedings of Session Trial No. 19 of 2019, State Vs. Lalit Mohan Bhagat and Another (Initially, the challenge was made to the proceedings of the Criminal Case No.93 of 2019 pending in the court of Judicial Magistrate, Ranikhet, but subsequently, it is argued that now that case has been committed which is now Sessions Trial No. 19 of 2019, pending before the court of Additional Sessions Judge, Ranikhet, District Almora) under Section 498C IPC pending before the court of Additional Sessions Judge, Ranikhet, District Almora (for short, "the case"). 2
2. Heard learned counsel for the parties and perused the record.
3. The facts, briefly stated, are as follows. The currency notes sent from the State Bank of India ("SBI"), Branch Ranikhet to the Reserve Bank of India ("RBI") were found counterfeit. Therefore, Reserve Bank of India directed lodging of an FIR in the matter. Accordingly, on 22.11.2017, an FIR under Sections 489A, 489B, 489C, 489D and 489E IPC was lodged against the petitioners.
4. The matter was investigated and finally chargesheet has been submitted against the petitioners under Section 489 IPC. In its chargesheet, the Investigating Officer (for short, "the IO") records the result of investigation in two lines. According to it, after investigation, the Investigating Officer could get sufficient evidence that the petitioners were in possession of counterfeit currency notes. Based on this chargesheet, on 13.08.2019, cognizance has been taken against the petitioners for the offences punishable under Section 489C. This is the basis of the case.
5. Learned counsel for the petitioners would submit that no prima facie case is made out against the petitioners. The continuance of the case against the 3 petitioners is nothing but abuse of the process of law. Petitioners were working in the State Bank of India, Branch Ranikhet. Petitioner no. 1 was Deputy Manager Cash and Petitioner No.2 was working as an Accountant. They were not receiving any money as such from the customers. The money at the respective counters were being received by the cashiers and the cashiers would forward the received money to the petitioner no.1 who happened to be the Deputy Manager Cash. It is argued that the role of Deputy Manager Cash was just to keep the money in safe custody of the Bank. The money was also being received from other Banks. Since it was a period of demonetization, there was huge rush. The money, as received, was transmitted to the Reserve Bank of India where it was detected that some of the currency notes were counterfeit.
6. Learned counsel for the petitioners has referred to the statement of the witnesses recorded during investigation to argue that no prima facie case is made out against the petitioners even if the prosecution case is accepted in its entirety.
7. On the other hand, learned State Counsel would submit that the petitioners were in possession of the currency notes; It was their duty to ensure that no 4 counterfeit currency notes are received in the Bank; It was their responsibility; They were responsible officers.
8. This petition was filed on 05.09.2019. On 05.11.2019, notices were issued and some interim orders were also passed but it appears that in between, the interim order could not remain in force and the proceeding of the case progressed.
9. Today, a statement is given that three witnesses have already been examined in the case. Such statement of the witnesses may not be useful for the purpose of determining the petition under Section 482 of the Code because essentially what is to be examined is as to whether there is any prima facie case.
10. This is a petition under Section 482 of the Code. At this stage, deeper scrutiny of the material, in order to appreciate its credibility, truthfulness is to be avoided. At this stage the Court may not undertake a mini trial. It is the jurisdiction which is much wide but also strictly guided by principles of law as laid down by the Hon'ble Supreme Court in a catena of decisions in the case of State of Haryana and Others Vs. Bhajan Lal 5 and Others, 1992 Supp (1) SCC 335. The Hon'ble Supreme Court illustratively gave a list of circumstances under which such jurisdiction may be exercised. In paragraph 102 of the judgment of Hon'ble Supreme Court observed as hereunder:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the 6 institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
11. The petitioners are being proceeded under Section 489 IPC. This Section reads as hereunder:
489. Tampering with property mark with intent to cause injury.--Whoever removes, destroys, defaces or adds to any property mark, intending or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.]
12. The bare reading of this Section reveals that in order to prove an offence under Section 489 C, first and foremost, it has to be shown that the wrong doer was in possession of false or counterfeit currency notes or Bank notes. Thereafter, it has also to be shown that such wrong doer was doing so knowingly or he has had reasons to believe the same to be false or counterfeit and intending to use the same as genuine.
13. Admittedly, the petitioners were not receiving money at the Bank counters. Petitioner no.1 was Deputy Manager Cash and Petitioner no.2 was an Accountant. The Investigating Officer has recorded the 7 statement of Satya Kumar, an officer of RBI. He has given general statement about counterfeit currency notes that were received in the RBI at the relevant time.
14. Shekhar Chand Kandpal, Chief Manager S.B.I. was also interrogated by the Investigating Officer. He has categorically stated the positions of petitioner no.1 as Deputy Manager Cash and petitioner no.2 as Accountant. This witness has told it to the Investigating Officer that during that period, there was heavy rush in the Bank. Cash was being deposited from other Banks also and from post offices. The currency notes were being stored in the Bank after counting them in the shorting machine. The Bank had no record as to who deposited which notes. The details of notes could not be maintained and there were no directions for that purpose also.
15. Khajan Chand Pandey & Savitri Arya were cashiers at the relevant time in the Bank. They were receiving money and according to them, the money was then handed over to the Cash Officer. Both these witnesses have told it to the IO that cash from other Banks and institutions were also deposited in the Bank. 8
16. Witnesses Kishan Ram, Nitin Prakash, Smt. Hemlata Tiwari, Kundan Sing, Chandan Singh Manral, Ajeet Negi, Manish Shah have also stated about the working of the Bank at the relevant time.
17. In fact, witness Chandan Singh Manral was working in the Almora Urban Corporative Bank. He would also tell it to the IO that they would deposit the money to SBI, Ranikhet. Witness Ajeet Negi was working as Assistant Manager, IDBI. He also told that they would deposit the money to SBI, Ranikhet. Similarly, witness Manish Shah, working in Purvanchal Nagar Sehkari Bank, has also stated that during demonetization, they deposited the cash to SBI, Ranikhet.
18. The IO has, in fact, correctly stated the position in conclusion when he said that there were sufficient evidence that the currency notes were in possession of the petitioners. It is denied by none. Petitioners were storing the cash which the Bank was receiving at the relevant time. The cash was being received either at the counter of the Bank or it was being received from other Banks and post offices as well. Witnesses have stated that there was huge rush. Merely 9 because the petitioners were the officers, who were forwarding the money to the RBI, can they even, prima facie, be held liable for the offence under Section 489C? There cannot be vicarious criminal liability unless it is stipulated in the statute itself. There were other officers also in the Bank, may be the Chief Manager. Was not he also responsible for the activities in the Bank? But he has not been made an accused.
19. This is one part of the case. The other part is more significant. It is the intention. Mens rea is one of the essential element of offence under Section 489C.
20. This Court is cautious that the present petition is under Section 482 of the Code. The Court is not evaluating or examining the evidence. The Court is taking the evidence as it is.
21. In order to attract the provision of Section 489C, the mens rea of the wrong doer has to be established and proved and the required mens rea is, "knowing or having reason to believe the same to be false or counterfeit and intending to use the same as genuine or that it may be used as genuine." Can it be presumed that the petitioners had the mens rea or they 10 knew that the currency notes, which they were receiving and which they, according to the prosecution, finally forwarded to the RBI, were false or counterfeit?
22. The Hon'ble Supreme Court has discussed this aspect in the case of Umashanker Vs. State of Chhattisgarh (2001) 9 SCC 642 and K.Hashim Vs. State of Tamil Nadu (2005) 1 SCC 237.
23. In the case of Umashanker (supra), the Hon'ble Supreme Court, inter alia, observed that mere possession of false or counterfeit currency notes may not attract the provisions of Section 489 IPC unless mens rea is proved. The Hon'ble Supreme Court observed as hereunder:
8. A perusal of the provisions, extracted above, shows that mens rea of offences under Sections 489-B and 489-C is "knowing or having reason to believe the currency notes or banknotes are forged or counterfeit".
Without the aforementioned mens rea selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit currency notes or banknotes, is not enough to constitute offence under Section 489-B IPC. So also possessing or even intending to use any forged or counterfeit currency notes or banknotes is not sufficient to make out a case under Section 489-C in the absence of the mens rea, noted above. No material is brought on record by the prosecution to show that the appellant had the requisite mens rea. The High Court, however, completely missed this aspect. The learned trial Judge on the basis of the evidence of PW 2, PW 4 and PW 7 that they were able to make out that the currency note alleged to have been given to PW 4 was fake, "presumed" such a mens rea. On the date of the incident the appellant was said to be an eighteen-year-old student. On the facts of this case the presumption drawn by the 11 trial court is not warranted under Section 4 of the Evidence Act. Further it is also not shown that any specific question with regard to the currency notes being fake or counterfeit was put to the appellant in his examination under Section 313 of the Criminal Procedure Code. On these facts, we have no option but to hold that the charges framed under Sections 489-B and 489-C are not proved. We, therefore, set aside the conviction and sentence passed on the appellant under Sections 489-B and 489-C IPC and acquit him of the said charges (see: M. Mammutti v. State of Karnataka [(1979) 4 SCC 723 : 1980 SCC (Cri) 170 : AIR 1979 SC 1705] ).
(emphasis supplied)
24. In the case of K.Hashim (supra), the Hon'ble Supreme Court observed that, "Possession and knowledge that the currency notes were counterfeited notes are necessary ingredients to constitute offence under Sections 489-C and 489-D."
25. The question is that merely because the petitioners were responsible officers in the Bank where counterfeit currency notes were deposited, can it be presumed that the petitioners have that mens rea as required for bringing home guilt under Section 489C? There cannot be presumption of either intention or for any other fact, unless statute provides for it. Under certain statutes, some presumptions havebeen provided. For example, Section 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 30 of the Protection of Children from Sexual Offences Act, 2012. They are as hereunder:
12
The Narcotic Drugs and Psychotropic Substances Act, 1985
35. Presumption of culpable mental state.--
(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation.--In this section "culpable mental state"
includes intention motive, knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section , a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.
The Protection of Children from Sexual Offences Act, 2012
30. Presumption of culpable mental state.--
(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
Explanation.--In this section, "culpable mental state"
includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.
26. There is no such provision in the IPC by which the mens rea may be presumed on a wrong doer, who is found in possession of counterfeit currency notes.
Even otherwise, can it be presumed that a Senior Officer of a Bank would forward counterfeit currency notes to the Reserve Bank of India knowing that such currency notes are counterfeit?
27. In view of the foregoing discussion, this Court is of the view that even if the prosecution case is 13 taken at its face value and accepted in its entirety, it does not, prima facie, constitute under Section 489C IPC Therefore the petition deserves to be allowed.
28. The petition is allowed.
29. The Charge Sheet No. 13 of 2018, cognizance order dated 13.08.2019 and the entire proceedings of Session Trial No.19 of 2019 are hereby quashed.
(Ravindra Maithani, J.) 11.05.2022 Ravi Bisht