Patna High Court
Dhirendra Kumar Mandal vs State Of Bihar on 13 December, 2013
Author: Rajendra Kumar Mishra
Bench: Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.1123 of 2010
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(Against the Judgment/Order dated 26.10.2010/28.10.2010 passed by the
Additional District and Sessions Judge, Fast Track Court No.VI, Araria, in
Sessions Trial No.915 of 2003/Trial No.169 of 2009).
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Dhirendra Kumar Mandal, son of Suganlal Mandal, resident of village-
Hingana, P.S. Raniganj, District-Araria.
.... .... Appellant.
Versus
The State of Bihar
.... .... Respondent.
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Appearance :
For the Appellant : M/s. Radhan Mohan Singh, Ramesh Kumar Singh,
Sudish Kumar and Sanjay Kumar Singh, Advocates.
For the State : Mr. S.N. Prasad, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA
ORAL JUDGMENT
Date: 13-12-2013:
............
This appeal is directed against the Judgment/Order dated
26.10.2010/28.10.2010 passed by the Additional District and Sessions Judge, Fast Track Court No.VI, Araria, in Sessions Trial No.915 of 2003/Trial No.169 of 2009, whereunder the sole appellant, Dhirendra Kumar Mandal, has been convicted under Sections 489B and 489C of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and fine of Rs.10,000/- for the offence under Section 489B of the Indian Penal Code, in default of payment of fine further simple imprisonment for two years, rigorous imprisonment for five years for the offence under Section 489C of the Indian Penal Code, with direction to run both the sentences Patna High Court CR. APP (SJ) No.1123 of 2010 dt.13-12-2013 2/11 concurrently.
2. The prosecution case, as set out in the written report (Ext.7) of S.I. Abhay Kumar Singh (P.W.17), is that on 18.6.2003 at about 14.45 hours, he received secret information to the effect that a person in the name of Dhirendra Mandal of village-Hingana, P.S. Raniganj, is moving with counterfeit currency note of denomination of Rs.500/- in Simraha Bazar. On the said information, he alongwith A.S.I. Jai Prakash Mandal, Constables, Abu Rooman, Raj Kumar Rajak, Kaushal Kishore, Mani Kant Yadav and Chaukidar, Mohan Das, proceeded for verification and reached at about 14.50 near Priyanka Pay Phone Booth situated at Simraha Bazar. In course of verification, he stopped one person in presence of the two independent witnesses, Arun Kumar Paswan and Dinesh Mandal and searched him. In that course, 7 currency notes of the denomination of Rs.500/- were recovered from the right pocket of his full pant, which apparently appeared to be faked and different with the original currency notes. He prepared the seizure list of the aforesaid recovered currency notes in presence of the aforesaid two independent witnesses, who put their signatures on the seizure list. The apprehended person disclosed his name Dhirendra Mandal, son of Suganlal Mandal of village-Hingana, P.S. Raniganj, District-Araria and on query, he disclosed that the seized notes had been given to him Patna High Court CR. APP (SJ) No.1123 of 2010 dt.13-12-2013 3/11 by Manoj Yadav, resident of village-Manikpur, P.S. Simraha, District- Araria, who used to do the business of groundnut, and he had sold the groundnut to Manoj Yadav. He has also stated that Manoj Yadav had given the said notes to him to use the same in the market.
3. On the basis of the aforesaid written report of S.I. Abhay Kumar Singh (P.W.17), Forbesganj (Simraha) P.S. Case No.169 of 2003 dated 18.6.2003 was instituted under Sections 489A, 489B, 489C, 120(B), 34 of the Indian Penal Code against the appellant and one Manoj Yadav.
4. After investigation of the case, police submitted the chargtesheet dated 13.9.2003 against the appellant under Sections 489A, 489B, 489C and 120(B) of the Indian Penal Code, continuing the investigation against Manoj Yadav.
5. After submission of the chargesheet, the cognizance of the offence was taken and the case was committed to the court of sessions for trail, where charges under Sections 489B and 489C were framed against the appellant, which resulted in his conviction and sentence as indicated above.
6. Assailing the conviction and sentence of the appellant, learned counsel for the appellant submits that no case under Section 489B of the India Penal Code stands established against the appellant even if the entire case of the prosecution is taken to be correct as there Patna High Court CR. APP (SJ) No.1123 of 2010 dt.13-12-2013 4/11 is no evidence on the record to the effect that the appellant was selling, buying or receiving from another person or otherwise trafficking the counterfeit currency notes or using as genuine. Learned counsel for the appellant further submits that so far as the offence under Section 489C of the Indian Penal Code is concerned, while there is evidence on the record that the alleged seven counterfeit currency notes were recovered from the possession of the appellant but the prosecution has not been able to establish that the appellant had any knowledge that notes were counterfeits. It is also submitted on behalf of the appellant that if the conviction of the appellant is to be maintained under Section 489C of the Indian Penal Code, a lenient view should be taken as the appellant was in custody since 19.6.2003 to 11.3.2004 during trial and is in custody since 26.10.2010 after conviction and appellant has no criminal antecedent.
7. Learned A.P.P. for the State, on the other hand, submits that the appellant was found to be in possession of counterfeit currency notes without there being any explanation regarding its possession and the currency notes were found to be counterfeit, which is duly established by Ext.4, the report of the Assistant General Manager, Reserve Bank of India, Patna, there is no escape from the conclusion that the appellant has violated the provision of Sections 489B and 489C of the Indian Penal Code and, therefore, the Patna High Court CR. APP (SJ) No.1123 of 2010 dt.13-12-2013 5/11 conviction and sentence as awarded to the appellant do not warrant any interference. Learned A.P.P. for the State while conceded that there is no evidence on the record to the effect that the appellant was buying or receiving from another person or otherwise trafficking the counterfeit currency notes or using as genuine but submits that the appellant was found in the market at the alleged time of occurrence with the counterfeit currency notes.
8. In support of its case, the prosecution has examined altogether seventeen witnesses. P.W.1, Anwar Ahamd, P.W.2, Rati Lal Rishideo and P.W.3, Basudeo Prasad Yadav, are the Advocate's Clerks and they have formally proved the signature of Raj Kumar Prasad, Officer Incharge of Forbesganj Police Station on the formal F.I.R., the signature of Raj Kumar on the written report and the signature of the informant, S.I. Abhay Kumar Singh (P.W.17), on the forwarding notes of the written report, respectively as Exts. 1, 1/2 and 1/3. P.W.16, Rajendra Prasad, is the Malkhana Incharge of the Police Station-Simraha, who has produced the 7 seized currency notes of the denomination of Rs.500/- in the court during trial. P.W.4, Rajesh Kumar Singh, P.W.6, Jeevanand Yadav, P.W.7, Vidyanand Yadav, P.W.8, Ramanand Biswas, P.W.10, Mohan Das, Chaukidar and P.W.13, Ravindra Prasad Sah, have not supported the case of the prosecution and they have been declared hostile.
Patna High Court CR. APP (SJ) No.1123 of 2010 dt.13-12-2013 6/11
9. P.W.5, Dinesh Mandal, is the seizure list witness and has proved his signature on the seizure list as Ext.1/4. While he has stated in his evidence that on the date and time of the occurrence, he was returning to his house from Simraha Market and when reached near Priyanka Pay Phone Booth, there was gathering and police was also there and Darogaji took his signature on the paper which was already written from before but he has denied the suggestion about seeing the occurrence in his cross examination. As such, this witness has clearly admitted in his evidence that he did not see the occurrence but he put his signature on the seizure list.
10. P.W.12, Arun Kumar Paswan, has stated in his evidence that on 18.6.2003, he was working as a staff at Priyanka Telephone Booth and was present there. He has proved the signature as a witness on the seizure list as Ext.1/5, saying that Dinesh Mandal has also put his signature there but he has denied the search of the counterfeit currency notes in his presence.
11. P.W.17, S.I. Abhay Kumar Singh, has stated in his evidence that the occurrence is of the year 2003. On receiving secret information about moving a person with currency notes near Simraha Bank, he alongwith police officials reached near Priyanka Telephone Booth, appellant, Dhirendra Kumar Mandal, was seen moving there, he was stopped and he was searched in presence of the two Patna High Court CR. APP (SJ) No.1123 of 2010 dt.13-12-2013 7/11 independent witnesses, Arun Kumar Paswan (P.W.12) and Dinesh Mandal (P.W.5) and in course of search, 7 currency notes of the denomination of Rs.500/- were recovered from the right pocket of the paint of Dhirendra Kumar Mandal, which apparently appeared to be counterfeit as the colour was different from the original, photograph of Gandhiji and the digit of Rs.500/- was not visible. In presence of both the independent witnesses, the notes were recovered, seized and seizure list of the same was prepared. Seizure list was written by A.S.I. Jai Prakash Mandal (not examined) on which he put his signature and the independent witnesses also put their signatures on the seizure list. He has proved the seizure list as Ext.5. This witness has proved the seized currency notes as Exts.6, 6/1, 6/2, 6/3, 6/4, 6/5 and 6/6. This witness has further stated that the accused Dhirendra, on query, disclosed that he used to do the business of groundnut. He had sold the groundnut to Manoj Yadav of village-Manikpur and Manoj Yadav had given the said notes to him with an instruction to use the same in the market. This witness has also proved his written report as Ext.7, saying that the same was written by Jai Prakash Mandal (not examined) on his instruction. There is nothing in his cross examination to discredit his examination in chief.
12. P.W.9, Kaushal Kishore, P.W.14, Mani Lal Yadav and P.W.15, Abu Rooman, are the constables, who were present with Patna High Court CR. APP (SJ) No.1123 of 2010 dt.13-12-2013 8/11 P.W.17 at the time of search of the appellant near Priyanka Pay Phone Booth and they have stated that on search 7 currency notes of the denomination of Rs.500/- were recovered from the pocket of the pant of the appellant, Dhirendra Kumar Mandal.
13. P.W.11, Reyaz Akhtar, is the Investigating Officer of the case. He has stated in his evidence that on 18.6.2013, he was posted as Sub Inspector at Simraha Police Station and he was handed over the charge of investigation of Forbesganj P.S. Case No.169 of 2003 registered on the basis of the information of S.I., Abhay Kumar Singh, of Simraha Police Station. After taking over the charge of investigation, he recorded the statement of the informant (P.W.17) and A.S.I. Jai Prakash Mandal (not examined) and inspected the place of occurrence situated near Priyanka Pay Phone Booth in Simraha Bazar. He also recorded the statements of Rajesh Kumar Singh (P.W.4), Dinesh Mandal (P.W.5), Jeevanand Yadav (P.W.6), Vidyanand Yadav (P.W.7) and Ramanand Biswas (P.W.8). He also recorded the confessionals statement of the accused Dhirendra Kumar Mandal on the same day. He has further stated that he sent the seized currency notes for its examination vide forwarding letter dated 24.9.2003 (Ext.3). After completing the investigation, he submitted the chargesheet.
14. From the evidence of the informant, S.I. Abhay Patna High Court CR. APP (SJ) No.1123 of 2010 dt.13-12-2013 9/11 Kumar Singh (P.W.17), Kaushal Kishore (P.W.9), Mani Lal Yadav (P.W.14) and Abu Rooman (P.W.15), it is apparent that on search 7 currency notes of the denomination of Rs.500/- were recovered from the pocket of the accused-appellant. P.W.17, S.I. Abhay Kumar Singh, has also stated in his evidence that the appellant, on query, disclosed that the said notes were given to him by one Manoj Yadav to whom he had sold the groundnuts and he had instructed him to use the same in the market. P.W.5, Dinesh Mandal and P.W.12, Arun Kumar Paswan, who are the seizure list witnesses, while have denied about the recovery of the said notes in their presence but they have admitted their signature on the seizure list. Ext.4, the report of the Assistant General Manager, Reserve Bank of India, Patna, shows that the 7 seized notes, as sent for their test through letter dated 24.9.2003 by P.W.11, Reyaz Akhtar, the Investigating Officer of the case, were found to be counterfeit notes.
From the statement of the accused-appellant recorded under Section 313 of the Code of Criminal Procedure, it appears that the appellant has pleaded his false implication but without explanation. In the case when the appellant was found to be in possession of counterfeit notes, the onus would instantly shift to him and he would be under an obligation to explain as to how he was in possession of the same but the appellant has not explained the Patna High Court CR. APP (SJ) No.1123 of 2010 dt.13-12-2013 10/11 possession satisfactorily. In that circumstances, inference regarding his knowledge and intent to keep the counterfeit currency notes as genuine could be safely presumed against him. As such, the conviction of the appellant under Section 489C of the Indian Penal Code is justified. So far as the conviction of the appellant under Section 489B of the Indian Penal Code is concerned, from the evidence of the witnesses, as discussed above, it appears that the prosecution has failed to establish the ingredients thereof as there is no evidence to the effect that the appellant, who was found in possession of the counterfeit currency notes, was intending to sell or buy or receive from any other person or otherwise traffic in or use as genuine.
15. Having considered the aforesaid facts and the circumstances of the case as discussed above, the conviction of the accused-appellant under Section 489B of the Indian Penal Code is liable to be set aside upholding his conviction under Section 489C of the Indian Penal Code, for which the appellant has been sentenced to undergo rigorous imprisonment for five years.
16. It appears from the record of the case that the appellant was in custody from 19.6.2003 to 11.3.2004 during trial and since 26.10.2010, after conviction and his total period of custody is about four years. Taking into consideration the facts and the Patna High Court CR. APP (SJ) No.1123 of 2010 dt.13-12-2013 11/11 circumstances of the case and also that the appellant has no criminal antecedent, it would be in the interest of justice to modify his sentence under Section 489C of the Indian Penal Code from five years to the period which he has already undergone.
17. In the result, this appeal is allowed partly. The conviction and sentence of the appellant under Section 489B of the Indian Penal Code is set aside and he is acquitted of the said charge, whereas the conviction of the appellant under Section 489C of the Indian Penal Code is upheld. The sentence of the appellant awarded for the offence under Section 489C of the Indian Penal Code for five years is modified to the period which he has already undergone. The appellant is in jail custody, hence, is directed to be released forthwith, if not wanted in any other case.
(Rajendra Kumar Mishra, J) P.S./N.A.F.R.