Bhisham Yadav Vs State of Chhattisgarh

The present appeal arises out of the impugned judgment of conviction and order of sentence dated 28.03.2008 passed by the learned 12^th Additional Sessions Judge (FTC), Durg (C.G.), in Sessions Trial No. 127/2007 whereby, the learned Sessions Judge has convicted and sentenced the appellant as under :-

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Digitally signed by HEERA LAL SAHU Date: 2025.02.18 10:27:42 +0530

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Conviction	Sentence
U/s 489B of IPC	R.I. for 5 years and fine of Rs.
	100/-, in default ofpayment of

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fine amount additional R.I. for 3 months.

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Brief facts of the case are that complainant Dilip Jaiswal was having a milk dairy at Camp-1, Bhilai where he, his brother Rajkumar, and servant Nandu, sit and take care of the dairy. On 26.04.2004 the niece of the present appellant, Vijay Laxmi, came to the dairy and purchased milk by giving a note of 100 denomination. In the night when Dilip checked his cash box, he found a currency note of 100 denominations counterfeit. Thereafter, Dilip and Rajkumar mutually resolved to see who came with the fake currency note of 100 denominations to purchase milk. On 28.04.2004 at about 9:00 pm in the night, while Dilip, Rajkumar and Nandu were sitting in the dairy, Vijay Laxmi came with a currency note of 100 denomination for purchasing milk, on which Dilip matched the earlier note and the note given by Vijay Laxmi and found that numbers of both the currency notes were the same. Both were counterfeit. Thereupon, Vijay Laxmi was questioned as to who had given her the said note, then she informed them that both the currency notes were given to her by the present appellant. Thereafter, Rajkumar took Vijay Laxmi to the house of the present appellant but he was not found at home. Then Rajkumar went to police station Chhawani and lodged an FIR vide Ex. P-1. During the investigation the currency notes were seized from the possession of complainant Rajkumar and sent for examination to the India Security Press, Nasik where the same were found counterfeit. After investigation, the offence under Section 489B of IPC was registered against the present appellant and the challan was submitted before the learned Magistrate after committal the case was transferred to the

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Sessions Court, from where learned XII Additional Sessions Judge (FTC), Durg (C.G.) received the case for trial.

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So as to hold the accused/appellant guilty, the prosecution has examined as many as 10 witnesses and exhibited 8 documents. The statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence and false implication in the case.

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After hearing the parties, vide impugned judgment of conviction and order of sentence dated 28.03.2008, learned Sessions Judge has convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. Hence, the present appeal.

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Learned counsel for the appellant submits that the learned trial Court has not appreciated the fact that the seizure of the currency notes vide Ex.P-2 was not seized from the possession of the present appellant but the same was seized from the possession of complainant Rajkumar (PW1). He further submits that the independent witness as also the panch witness Mannu Udiya (PW-10) has turned hostile and has not supported the case of the prosecution. He also submits that the learned trial Court has also not appreciated the evidence of Vijay Laxmi (PW-6) who has clearly deposed that as the complainant was teasing her, some altercation took place on this count between the present appellant and the complainant and therefore, he has falsely implicated the present appellant in the aforementioned crime. Further, even she has turned hostile and has not supported the case of the prosecution. The prosecution has failed to prove that the seized counterfeit currency notes have been given to the complainant by the present appellant. Even as per the prosecution story itself,

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the fake currency notes have been given to the complainant by Vijay Laxmi (PW-6) who has turned hostile. As such, the case against the appellant is not proved beyond a reasonable doubt, and the learned trial Court has erred in convicting the present appellant only on the basis of evidence of complainant Rajkumar (PW-1), Dilip (PW-2) and Nandu (PW-3) who are highly interested witnesses and had threatened the present appellant to implicate him in a false case. Hence, the appeal is liable to be allowed and the appellant is liable to be acquitted.

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Per contra, learned counsel appearing for the State, supporting the impugned judgment, opposed the arguments advanced on behalf of the appellant.

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Heard learned counsel for the parties and perused the material on record including the impugned judgment.

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It is appropriate to reproduce Section 489B of IPC herein which states as under:-

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“ 489B. Using as genuine, forged or

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counterfeit currency-notes or bank-notes. - Whowever 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 gorged or counterfeit, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extent to ten years, and shall also be liable to fine.”

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As per the above-reproduced provision, the prosecution must prove that the accused used the note as genuine knowing or having reason to believe that it was forged or

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counterfeit.

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10.The examined witnesses in this case, Rajkumar (PW-1) and Dilip Jaiswal (PW-2) are brothers who owned the Jaiswal Milk Dairy firm in Bhilai where Nandu (PW-3) worked. It is noteworthy that these three witnesses are interested witnesses as they are brothers and look after Jaiswal Milk Dairy firm and as per the entire prosecution case, neither fake notes have been seized from the appellant nor did the appellant himself come to their shop to buy milk with the alleged forged notes. Thus, there is no direct and clear evidence against the appellant-accused.

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11.According to the prosecution case, Rajkumar (PW-1), Dilip Jaiswal (PW-2) and Nandu (PW-3) have certainly confirmed the prosecution case according to which the appellant's niece Vijay Laxmi (PW-6) had come with forged notes of Rs. 100 each on two days dated 26.04.2004 and 28.04.2004 respectively and had bought milk. But the appellant must have given those notes to Vijay Laxmi (PW-6) to buy milk and the appellant's intention must have been to use the fake note as genuine, there is no direct evidence in this regard.

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12.Complainant Rajkumar (PW-1) has confirmed the FIR vide Ex.P-1 and according to the seizure Ex.P-2, the investigating officer K.K. Nag (PW-8) has stated that he has seized two fake notes of the same number. V.G. Maru (PW9), who is the assistant workshop manager in the currency note press, Nasik, has given a report vide Ex.P-7 stating that the note seized by the police was fake after examining it. But this note is not the note seized from the appellant and it is also not the case of the prosecution that the appellant himself has dishonestly and intentionally used the said note as genuine.

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13.According to the contention of the counsel for the appellant, it is also noteworthy that in the statement recorded under Section 313 of the Code of Criminal Procedure, the appellant has stated that complainant Rajkumar (PW-1) was taking his niece and when he objected, there was a dispute between them and complainant Rajkumar (PW-1) threatened him. Vijay Laxmi (PW-6), niece of the appellant, examined on behalf of the prosecution, has confirmed the defence of the appellant and said that she was molested by complainant Rajkumar (PW-10), due to which there was a dispute between her uncle, the appellant-Bhishma Yadav and complainant Rajkumar (PW-1), then her uncle Bhishma slapped Rajkumar two-three times and Rajkumar threatened him. In such a situation, it is clear that there was a reason for dispute between them and in such a situation, the contention of the appellant that he has been falsely implicated due to previous enmity cannot be ignored.

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14.It is also noteworthy that as per the statement of complainant Rajkumar (PW-1), on the first day when Vijay Laxmi (PW-6) had gone after giving a note of Rs. 100/- and buying milk, he had given that note to Bhasra Gujarati (not examined), the milkman at the dairy, who came the next day and told that the note was fake. In such a situation, the question arises that how did the complainant know that the note which had been given to Bhasra Gujarati was brought by the niece of the appellant, Vijay Laxmi. Vijay Laxmi has not confirmed the fact that she had gone to the dairy of the complainant and purchased milk after the appellant gave her the said note. There is also a lack of clear evidence in this regard that the alleged notes which were seized from Rajkumar (PW-1) were given by the

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appellant and there is also no evidence in this regard that the appellant knew that the notes were fake and deliberately used them as genuine. No notes have been seized from the appellant and considering the nature of the dispute between the parties, this Court finds that the conviction of the appellant is not based on clear, sufficient and convincing evidence. Hence, the judgment in question is not found sustainable in the eye of the law and the appellant is liable to be acquitted on the basis of benefit of doubt.

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15.In the result, the appeal is allowed . The impugned judgment is set aside and the accused-appellant is acquitted of the said charge. Fine, if any, deposited by the appellant shall be refunded to him.

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16.The appellant is on bail. He need not to surrender in this case. His bail bond shall remain in force for a period of six months in view of the provisions contained in Section 437A of the CrPC.

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17.Record of the Trial Court be sent back along with a copy of this judgment forthwith for information and necessary action, if any.

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Sd/- (Sanjay Kumar Jaiswal) JUDGE

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H.L. Sahu

Bhisham Yadav v. State of Chhattisgarh

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Bhisham Yadav v. State of Chhattisgarh

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