Partly allowed

Rabiul Islam Humayu Shaikh v. the State of Maharashtra

Bombay HC16 Feb 2017APEAL/587/2012

Case brief

AI extract

What is this about?

In a criminal appeal, the High Court held that while the Appellant's possession of fake notes proved infringement of Section 489-C IPC, evidence of intent to circulate or traffic was missing for Section 489-B IPC. Consequently, the conviction and sentence for Section 489-B were quashed, but the conviction for Section 489-C was upheld.

What did the court decide?

Conviction and sentence under Section 489-B IPC quashed; sentence under Section 489-C IPC affirmed; fine refunded.

Rabiul Islam Humayu Shaikh Vs the State of Maharashtra — Cheque Dishonour | Bombay HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.587 OF 2012 WITH CRIMINAL APPLICATION NO.1099 OF 2016

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Rabiul Islam Humayu Shaikh Aged 43 years, Indian Inhabitant Occ: Service, R/o.A/3-4, Transit Camp, in front of Wadala RTO Office, Mumbai Permanent resident of At and Post Metekona, Mohalla Machpada, Ilham Bazar, Builati, Birbhaum, West Bengal, (Presentely lodged at Kolhapur Central Prison as a convicted prisoner in the above matter) )...Appellant

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V/s. State OF Maharashtra (At the instance of Kandivali Police Station vide there C.R.No.377 of 2010 corresponding to C.R.No.109 of 2010 of DCB, CID ,Mumbai )...Respondent

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Mr. Kartik Garg Advocate appointed by Court for the Appellant Mr. P.H.Gaikwad-Patil APP for the Respondent - State.

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CORAM : A. M. BADAR, J. DATE : 16^th FEBRUARY 2017.

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ORAL JUDGMENT:

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By this appeal, the Appellant/Original Accused No.1 is challenging the judgment and order dated 11.5.2012 passed by the learned Assistant Sessions Judge, Greater Bombay, Mumbai in Sessions Case No.221 of 2011 thereby convicting the Appellant/Accused no.1 for the offences punishable under Section 489-B read with Section 34 of the IPC and under Section 489-C read with Section 34 of the IPC. For the offence punishable under Section 489-B read with Section 34 of the IPC, the Appellant/Accused No.1 is sentenced to suffer RI for 10 years apart from payment of fine of Rs.20,000/- in default to suffer SI for one year. For the offence punishable under Section 489-C read with Section 34 of the IPC, he is sentenced to suffer RI for 7 years apart from payment of fine of Rs.10,000/- in default to undergo further SI for six months.

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Facts projected from police report leading to the prosecution of the Appellant/Accused No.1 can be summarised thus:

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Nitin Dinkar Uttekar Police Sub-Inspector attached to DCB CID, Unit No.XI, Kandivali received secret information from his informant to the effect that some persons are bringing fake currency notes from the West Bengal to Mumbai and are selling them at low price. The informant gave sample of two fake currency notes of Rs.500/- denominations to P.W.1-Nitin Uttekar, who transmitted this information to his superior officer Phiroj

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Patel. Then P.W.8-Sanjiv Bhole Police Inspector came to be deputed for taking necessary action in the matter. Two pancha witnesses were called and they were shown fake currency notes. Three teams of police officers were then prepared. Pancha witnesses accompanied those police team and a trap was led in front of Raghuleela Mall. This happened on 28.11.2010 at about 10.45 a.m. On that day, all three teams of police personnels reached the spot and waited for accused to come on the spot. At about 11.45 a.m., the Accused no.1-Rabiul Shaikh came in front of Raghuleela Mall in Poisar area. Secret informant pointed out Accused No.1Rabiul Shaikh to police. He was carrying black coloured plastic bag. His movements were found to be suspicious by police personnels. After waiting for 10 minutes as nobody came to approach Accused No.1-Rabiul Shaikh, police apprehended Accused No.1-Rabiul Shaikh. In the black coloured plastic bag carried by Accused No.1-Rabiul Shaikh, three bundles of fake currency notes of Rs.500/-denominations were found. Two bundles were containing 100 fake currency notes each whereas third bundle was containing 84 currency notes. In his personal search, 4 fake currency notes of Rs.500/- denominations were found in his wallet. Those fake currency notes were seized and sealed on the spot. Panchanama of the event which took place came to be prepared. Accused No.1-Rabiul Shaikh was then taken to the office of the DCB, CID Unit No.XI at Kandivali. He confessed that he had procured those currency notes from West Bengal with

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aid of other persons. Thereafter, P.W.1-Nitin Uttekar PSI lodged report to Kandivali Police Station which has resulted in registration of Crime No.377/10 for the offence punishable under Sections 489(A), (B), (C), 120-B read with Section 34 of the IPC against apprehended accused Rabiul Shaikh as well as wanted accused persons. Thereafter, during the course of investigation, Accused No.2 Yasin Haurn Limbuwalla came to be arrested. During the course of investigation, on the basis of disclosure statement made by the Appellant/Accused No.1 Rabiul Shaikh, 400 fake currency notes each of Rs.500/- denomination came to be seized from room in the Wadala Transit Camp. Statement of witnesses were thereafter recorded. Seized muddemal was sent to the Government Currency Note Press at Nashik with carrier Head Constable Baban Sanap. Subsequently, P.W.6 Anil Vitthal Ranpise Head Constable brought report of the Government Currency Note Press, Nashik, which concluded that referred suspected notes of Rs.500/- denominations are counterfeit currency notes. Muddemal was also brought back from the Government Currency Note Press. Ultimately, on conclusion of investigation, both accused persons were charge-sheeted for commission of offence punishable under Section 489A, B and C read with Section 34 of IPC and 120-B of IPC. After due trial by the impugned judgment and order dated 11.5.2012 passed by the Assistant Sessions Judge, Greater Bombay, Mumbai in Sessions Case No.221 of 2011, the Appellant-Accused No.1 came to be convicted for the offence

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punishable under Section 489-B and 489-C read with Section 34 of IPC and he is sentenced as indicated in the opening paragraph of this judgment. Accused No.2-Yasin Haurn Limbuwala came to be acquitted of all the offences alleged against him.

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I heard learned Advocate appearing for the AppellantAccused. He argued that for making out offence punishable under Sections 489-B and C of the IPC, proof of mens rea is absolutely essential. In the absence of mens rea, such type of offence cannot be made out and evidence of the prosecution is not pointing out mens rea of the Appellant-Accused. For this purpose, reliance is placed on the judgment of the Hon'ble Apex Court in the matter of Umashanker v. State of Chhattisgarh reported in AIR 2001 SC 3074 . The learned Advocate further argued that P.W.8-Sanjiv Bhole. Police Inspector was member or infact leader of the police sqad, which apprehended the Appellant-Accused, allegedly with counterfeit currency notes. Thereafter, FIR came to be lodged with Kandivali Police Station. In submission of the learned Advocate for the Appellant-Accused, as P.W.8-Sanjiv Bhole, Police Inspector was member of the team which apprehended the Appellant-Accused, investigation of the crime in question ought not to have been entrusted to P.W.8-Sanjiv Bhole. Therefore, for want of fair and impartial investigation, the Appellant-Accused is entitled to acquittal. To buttress his submission, reliance is placed on the judgment of the Hon'ble Apex Court in the matter of State by

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Inspector of Police, NIB, Madurai, Tamil Nadu v. Rajangum reported in (2010) 15SCC 369 as well as Megha Singh v. State of Haryana (1996) 11 SCC 709 . It is further argued that though the Appellant-Accused was allegedly apprehended at 11.45 a.m. of 28.11.2010, the FIR of this crime was lodged belatedly by P.W.1Nitin Uttekar at about 4.30 p.m. of 28.11.2010. There is no explanation to this belated FIR and, therefore, in submission of the learned Advocate for the Appellant-Accused, on the basis of ratio of the judgments of the Hon'ble Apex Court in the matter of State of Andhra Pradesh v. Punati Ramulu and Others reported in AIR 1993 SC 2644 and Om Prakash v. State of Haryana reported in AIR 2006 SC 894 , the Appellant-Accused is entitled for acquittal. It is further argued that there are several defects in investigation. While leaving the unit office for laying down trap, no entry in the station diary was taken. In fact, no panchanama was prepared and rough notes were taken. It is further argued that P.W.1-Nitin Uttekar and P.W.8-SanjIv Bhole are not consistent in stating as to who has prepared panchanama. They are naming different officials as authors of panchanama. P.W.1-Nitin Uttekar has stated that after apprehending the Appellant-Accused, he was taken to Kandivali Police Station whereas in fact as admitted by P.W.8-Sanjiv Bhole, Police Inspector, the Appellant-Accused was taken initially to unit office of DCB, CID. The muddemal was not recorded and it was not deposited in the head office. No record of malkhana was produced before the Court to demonstrate deposit

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of muddemal in the malkhana. Therefore, in submission of the learned Advocate for the Appellant-Accused, because of defects in the investigation, conviction of the Appellant-Accused cannot be sustained. He placed reliance on the judgment of the Hon'ble Apex Court in the matter of Surajit Sarkar v. State of West Bengal reported in AIR 2013 SC 807 as well as Lalita Kumari v. Government of UP & Ors. reported in AIR 2014 SC 187 to substantiate this contention.

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As against this, according to the learned APP, evidence of the prosecution so far as seizure of fake currency notes from the Appellant-Accused is concerned, is consistent and cogent. Mens rea is reflected from the very fact that the Appellant-Accused was found in possession of fake currency notes of Rs.500/denominations in huge quantity. The learned APP argued that conviction of the Appellant-Accused is based on clear, cogent and consistent evidence and as such, it cannot be upset.

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I have carefully considered the rival submissions and also perused the Records and Proceedings including deposition of witnesses and documentary evidence placed on record by the prosecution.

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At the outset, it needs to be mentioned here that despite acquittal of the Accused No.2 Yasin Haurn Limbuwala, the learned trial Court was pleased to convict remaining accused i.e.,

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the Appellant-Accused No.1 Rabiul Shaikh for the offences punishable under Sections 489-B and 489-C with the aid of Section 34 of the IPC. This seems to be without justification as the learned Trial Court has not come to conclusion that the offence has been committed by the Appellant-Accused along with other accused persons in furtherance of their common intention. Be that as it may, as conviction for the offences punishable under Sections 489-B and 489-C of IPC is recorded against the Appellant-Accused, it is necessary to reproduce the provisions of those two Sections, which read thus:

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“489-B. Using as genuine, forged or counterfeit currency-notes or bank-notes.-

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Whoever sells to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

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489-C. Possession of forged or counterfeit

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currency-notes or bank-notes -Whoever has in his possession any forged or counterfeit

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currency-note or bank-note, knowing or having reason to believe the same to be forged, or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both”

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Bare perusal of these provisions makes it clear that Section 489-B of IPC relates to using as genuine, forged or counterfeit currency notes. The object of the legislature in enacting this Section is to stop circulation of counterfeit currency notes by punishing those, who sells, buys or receives from any other person or otherwise traffics in or uses as genuine, any forged or counterfeit currency notes or bank notes, knowing or having reason to believe the same as forged or counterfeit. Mere possession of counterfeit currency notes knowingly or having reason to believe the same as forged or counterfeit and intending to use the same as genuine is made punishable under Section 489C of IPC.

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At the outset, let us examine whether prosecution has proved the fact that the Appellant-Accused was in possession of about 688 fake currency notes of Rs.500/- denominations as per its case reflected from the charge-sheet.

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8 P.W.1-Nitin Uttekar, PSI and P.W.8-Sanjiv Bhole, PI of DCB, CID Unit No.XI are star witnesses for the prosecution on the aspect of seizure of fake currency notes from possession of the Appellant-Accused. P.W.3-Anand Aashar is the pancha witness, who had witnessed seizure of fake currency notes from the Appellant-Accused at Raghuleela Mall at Poisar. Evidence of P.W.1Nitin Uttekar, PSI shows that he received secret information from his informant on 28.11.2010. Secret information was to the effect that some persons are selling counterfeit currency notes in the market at low price and the Appellant-Accused No.1 Rabiul Shaikh is bringing fake currency notes from West Bengal to Mumbai for selling them at low price. After necessary formalities, as seen from the evidence of P.W.1-Nitin Uttekar, three teams of police personnels were formed by P.W.8-Sanjiv Bhole, P.I., who was entrusted with the job of undertaking further enquiry by Senior PI. Similar is the evidence of P.W.8-Sanjiv Bhole. They, in unison deposed that two pancha witnesses were called for aiding the police party. P.W.3-Anand Aashar is one of the pancha witnesses called by the police. He also accompanied police team to Raghuleela Mall where the trap was led.

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Congruous evidence of P.W.1-Nitin Uttekar, PSI, P.W.8Sanjiv Bhole, PI and P.W.3-Anand Aashar, Panch witness goes to show that police personnels reached Raghuleela Mall at about 10.30 a.m. of 28.11.2010 and waited for the Accused. At about

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11.45 a.m., the Appellant-Accused No.1-Rabiul Shaikh came in front of Raghuleela Mall and informant pointed out police team the fact of arrival of the Appellant-Accused No.1 on the spot. It is seen from the evidence of all these three witnesses that police personnel waited for 10 minutes to watch the movements of Appellant-Accused-Rabiul Shaikh and to check whether somebody contacts him. However, as none except Rabiul Shaikh came there, he was nabbed by the police teams headed by P.W.8-Sanjiv Bhole.

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P.W.1-Nitin Uttekar, PSI, P.W.8-Sanjiv Bhole, PI and panch witness P.W.3-Anand Aashar further deposed that from the plastic bag carried by the the Appellant-Accused-Rabiul Shaikh, 284 fake currency notes of Rs.500/- denominations were recovered. From his personal search, 4 fake currency notes were recovered. As seen from their evidence, those currency notes were seized and packed.

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Though the learned Advocate appearing for the Appellant-Accused attempted to demonstrate that evidence of P.W.1-Nitin Uttekar, PSI shows that thereafter the AppellantAccused was directly taken to Kandivali Police Station, paragraph 10 of the evidence of P.W.1-Nitin Uttekar, in terms shows that thereafter police team along with the Appellant-Accused went to Kandivali Unit No.11 of the DCB, CID. Hence, I do not find any substance in the contention of the learned Advocate for the

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Appellant-Accused that evidence of P.W.1-Nitin Uttekar shows that the Appellant-Accused was taken to Kandivali Police Station whereas evidence P.W.8-Sanjiv Bhole shows that he was taken to Unit No.XI of DCB CID. Both these witnesses are consistent in stating that firstly, the Appellant-Accused was taken to their unit and subsequently, as seen from the evidence of P.W.1-Nitin Uttekar, FIR Ex.15 came to be lodged by him.

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True it is that P.W.1-Nitin Uttekar and P.W.8-Sanjiv Bhole are stating names of different police personnels as authors of panchanama but one will have to keep in mind the fact that they entered into witness box about two years after the incident in question took place. In the matter of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat reported in AIR 1983 SC 753 principles of appreciation of evidence of witnesses are enunciated by the Hon'ble Apex Court. The Hon'ble Apex Court has given guidelines in this regard stating that by and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. The Hon'ble Supreme Court has stated that witness is not a video tape to be replayed. It is further stated by the Hon'ble Apex Court that powers of observation differs from person to person and discrepancies which do not go to the root of the matter and change basic version of the prosecution case therefore, cannot be annexed with undue importance, particularly, when “probability factor” echoes in favour of their version. If

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appreciated in the light of these principles laid down by the Hon'ble Apex Court in the matter of Bharwada (Supra) then it cannot be said that merely because there are few minor discrepancies in the evidence of P.W.1-Nitin Uttekar, P.W.8-Sanjiv Bhole and P.W.3-Anand Aashar needs to be jettisoned in toto. Basic version of the prosecution case is not shaken from their searching cross-examination and there is no material on record to disbelieve version of these three witnesses as in all 284 fake currency notes of Rs.500/- denominations each came to be seized from the Appellant-Accused at Raghuleela Mall of Poisar on 28.11.2010.

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Evidence of P.W.1-Nitin Uttekar-PSI is gaining further corroboration from the FIR lodged by him on 28.11.2010 itself. No doubt, the Appellant-Accused was apprehended at about 11.45 a.m. on 28.11.2010 and the FIR came to be lodged on the very same day at about 4.30 p.m. but this few hours delay cannot be said to be inordinate to disbelieve the prosecution version. After all evidence of P.W.1-Nitin Uttekar and P.W.8-Sanjiv Bhole shows that initially the Appellant-Accused was taken to the unit office of the DCB, CID. The Court is not oblivious of the fact that considering the huge quantity of the fake currency notes seized from the Appellant-Accused, few formalities were necessary such as noting down numbers, etc. before lodging FIR.

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It is attempted to demonstrate that there are repetitions of numbers of fake currency notes in the FIR and,

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therefore, prosecution case becomes suspected. It is argued that this mistake is repeated in all documents where numbers of currency notes are referred. Even if this fact that number 7AP 331919 is repeated in all four columns where numbers of currency notes are mentioned in the FIR and other documents then also this cannot be considered as factor which can throw doubt on the prosecution case. Ultimately, what is material is the fact that currency notes were not genuine but fake. Their number is not material.

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Evidence of P.W.2-Parvej Shaikh, pancha witness so also that of P.W.8-Sanjiv Bhole PI, shows further seizure of fake currency notes at the instance of of the Appellant-Accused. Both these witnesses have consistently stated that disclosure statement of the Appellant-Accused was recorded on 28.11.2010 itself that is on the day of the incident itself. It is in the evidence of both these witnesses that on the basis of confessional statement of the Appellant-Accused, at his instance, they went to Wadala Transit Camp. As stated by both these witnesses, the Appellant-Accused obtained key of room from a woman residing in the neighbourhood (P.W.4-Amina Juneja). By opening the lock of that room as stated by both these witnesses, from a white coloured bag kept in that room, the Appellant-Accused took out 4 bundles of currency notes of Rs.500/- denominations and each bundle was containing 100 currency notes. Contemporaneous document, i.e.

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memorandum of disclosure and recovery panchanama at Exhibit 21 corroborates the version of both these witnesses. It is thus, seen that 400 more currency notes each of Rs.500/denominations came to be seized at the instance of the AppellantAccused.

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P.W.7-Baban Sanap, Head Constable carried seized currency notes to the Government Currency Note Press at Nashik. Exhibit 19 is the forwarding letter addressed to the Manager of the Government Currency Note Press. It is seen from the evidence of P.W.7-Baban Sanap, Head Constable that he delivered muddemal in sealed condition to the Government Currency Note Press at Nashik and officer from that press opened sealed packets and verified muddemal. Acknowledgment obtained by this witness from the Currency Note Press is at Exhibit 29. This acknowledgment also shows that muddemal in sealed condition was received by the Government Currency Note Press, Nashik.

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When evidence of P.W.1-Nitin Uttekar, P.W.8-Sanjiv Bhole and P.W.3-Anand Aashar as well as that of P.W.2-Parvej Shaikh goes to show that seized notes were sealed at the time of seizure and when evidence of carrier Head Constable shows that muddemal was deposited with the Government Currency Note Press in sealed condition so also the fact that acknowledgment issued by the Currency Note Press shows that muddemal was

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received in sealed condition, the argument that movement of muddemal was not brought on record pales into insignificance. Ultimately what is required is proof beyond reasonable doubt and not proof of mathematical precision. Standard is that of prudent person. This evidence, in my opinion, satisfies the test of satisfaction of a prudent person.

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Report of Currency Note Press upon forensic examination of seized currency notes from and at the instance of Appellant-Accused No.1-Rabiul Shaikh is at Exhibit 41. The conclusion arrived at by the expert needs reproduction and it reads thus:

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“Conclusion:

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The referred suspected notes of Rs.500/denominations are “ COUNTERFEIT NOTES” due to the above mentioned reasons and absence of other covert security features of relevant design.

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Rubber stamp of CNP is affixed on each note in token of examination and signed intermittently and on top and bottom note of each exhibit.”

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With this evidence, the only conclusion which can be arrived at is that the Appellant-Accused was found in possession of

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fake currency notes of Rs.500/- denominations which were ultimately seized by the police team comprising of P.W.1-Nitin Uttekar and P.W.8-Sanjv Bhole. When the Appellant-Accused was found to be in possession of about atleast 688 counterfeit currency notes of Rs.500/- denominations each then inferential finding which needs to be given is that he was certainly having knowledge so also the reason to believe that such currency notes in huge quantities must be counterfeit currency notes. Therefore, I do not find that the learned trial Court committed any error in convicting the Appellant-Accused for the offence punishable under Section 489-C of IPC for having in his possession counterfeit currency notes of 688 in number of Rs.500/- denominations with requisite mens rea.

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Now let us examine whether the Appellant-Accused has committed offence punishable under Section 489-B of IPC which is held to be proved by the learned trial Court. In paragraph 32 of its judgment, the learned trial Court has concluded the issue by holding that the Deputy General Manager of Currency Note Press,Nashik came to conclusion that all of those 690 notes were counterfeit currency notes. The learned trial Court further held that possession of 4 notes of Rs.500/- denomination in his wallet with other currency notes worth Rs.1,650/- shows that he is intending to use those notes for circulation along with other notes. It is thus clear with the reasoning that 4 fake currency notes of Rs.500/- denominations each were found in the wallet of the

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Appellant-Accused, the learned trial Court jumped to the conclusion that fake/counterfeit currency notes were intended to be used for circulation along with other currency notes. With this reasoning, the learned trial Court convicted the Appellant-Accused for the offence punishable under Section 489-B of IPC. In order to sustain conviction of the Appellant-Accused for the offence punishable under Section 489-B of the IPC, prosecution is required to prove that the Appellant-Accused had possession of counterfeit currency notes with a reason to believe that those currency notes were counterfeit. The second factor which is required to be proved is that the Appellant-Accused had possession of counterfeit currency notes with intention to use those counterfeit currency notes on the public by circulating those fake currency notes. The second aspect is missing from the evidence of the prosecution. In trial of criminal cases, prosecution is obliged to prove each and every ingredient of alleged offence. To establish the offence punishable under Section 489-C of the IPC, the prosecution has relied on the evidence of P.W.1-Nitin Uttekar, P.W.8-Sanjiv Bhole and P.W.3-Anand Aashar. Evidence of these witnesses shows that the Appellant-Accused arrived at the spot near Raghuleela Mall. Informant transmitted to the police secret information to the effect that there is syndicate of people bringing fake/counterfeit currency notes from West Bengal and selling those counterfeit/fake currency notes in Mumbai at low price. Information was to the effect that the Appellant-Accused is coming

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for selling fake/counterfeit currency notes. Evidence of all these three witnesses goes to show that they waited in order to ascertain whether the Appellant-Accused is transacting some business of sale of fake/counterfeit currency notes. But despite waiting for 10 minutes, nothing of this sort happened. This resulted in apprehending the Appellant-Accused without further wait. It is thus seen that evidence of the prosecution is scanty so far as the offence punishable under Section 489-B is concerned and it does not reflect the fact that the Appellant-Accused was possessing fake/counterfeit currency notes with an intention to use those currency notes on the public either by selling them or by other means. As such, the Appellant-Accused is certainly entitled for benefit of doubt so far as the offence punishable under Section 489-B is concerned and to that extent, the impugned judgment and order of conviction and sentence recorded by the trial Court needs interference.

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Hence, the following order:

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(1) The Appeal is partly allowed.

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(2) The conviction and consequent sentence imposed upon the Appellant-Accused for the offence punishable under Section 489-B of the IPC is quashed and set aside.

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