Allowed

Dev Raj etc. v. State of Pb.

Punjab & Haryana HC1 May 2014CRA-S/1253/2003

Case brief

AI extract

What is this about?

The High Court allowed an appeal by convicts challenging a conviction for counterfeiting currency notes. The Court found the prosecution evidence unreliable due to the Investigating Officer's bias, contradictions in witness testimony, absence of an independent witness, and failure to scientifically test the recovered computer to prove it produced the fake notes. The conviction was set aside.

What did the court decide?

Impugned judgment and order convicting and sentencing the appellants were set aside. Appellants were acquitted and discharged from bail bonds; fine refunded.

Dev Raj etc. Vs State of Pb. — Cheating and Forgery | Punjab & Haryana HC (2014)

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CRA-S-1253-SB-2003

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IN THE HIGH COURT OF PUNJAB AND HARYANA, AT CHANDIGARH

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CRA-S-1253-SB-2003 Date of Decision : 01.05.2014

Dev Raj and another

... Appellants

Versus

State of Punjab

... Respondent

CORAM: HON’BLE MR. JUSTICE MAHAVIR S. CHAUHAN .

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Present : Mr. Suram Singh Rana, Advocate for appellant -Dev Raj.

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Mr. K.S. Dhillon, Advocate for appellant -Bikram Singh.

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Mr. G.S.Sidhu, Assistant Advocate General, Punjab for respondent-State.

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Whether Reporters of local papers may be allowed to see the judgment? Yes

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To be referred to the Reporter or not? Yes

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Whether the judgment should be reported in the Digest? Yes

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MAHAVIR S. CHAUHAN, J.

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Prorogue:

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Convicts Dev Raj and Bikram Singh are before this court by way of this appeal under sub-section (2) of Section 374 of the Criminal Procedure Code, 1973 (for short, 'the Code') to assail the correctness and sustainability of judgment of conviction and order of sentence dated June 13, 2003 of the Court of learned Additional Sessions Judge (Adhoc), Fast Track Court, Sangrur (here-in-after referred to as, 'the trial court') in Sessions Case No. 03 of May

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Virendra singh adhikari 2014.05.09 11:15 I attest to the accuracy and integrity of this document High Court Chandigarh

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CRA-S-1253-SB-2003

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23, 2002 (wrongly written as 2001 in the impugned judgment/order)/ Sessions Trial No. 157 of September 05, 2002 whereby they have been convicted and sentenced to undergo rigorous imprisonment for a term of seven years in addition to payment of fine amounting to 1000/- and in default of payment of fine to undergo further rigorous imprisonment for a term of one year, each, under Section 489-A of the Indian Penal Code, 1860 (for brevity, IPC) and to undergo rigorous imprisonment for a term of seven years in addition to payment of fine amounting to 1000/- and in default of payment of fine to undergo further rigorous imprisonment for a term of one year, each, under Section 489-D, IPC. Both the substantive sentences have been ordered to run concurrently.

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Factual Matrix:

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As emerging from a report submitted before learned Chief Judicial Magistrate, Sangrur, under sub-section (2) of Section 173, of the Code, on March 02, 2002, while stationed at Patiala Gate Chowk, Sangrur, Sub Inspector (SI) Harwinder Singh, the Investigating Officer (IO), received a secret information that the appellants were indulging in counterfeting of Indian currency notes, with the help of a computer, in their rented room in the house of Pritam Singh in Hargobindpura Basti, Sangrur. Believing the information to be true, he wrote a note (commonly called “Ruqa”), Exhibit PW4/A, which led to registration of a formal First Information Report (FIR, in short), Exhibit PW4/B.

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Investigating Officer, accompanied by his fellow officials, after

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joining PW Bhupinder Singh and Head Constable (HC) Mohinder Singh from near Government Ranbir College, Sangrur, reached the disclosed place, viz. a room in House No. 14/77, Hargobindpura Basti, Sangrur and found that appellant Bikram Singh was operating the machine (say computer) and appellant Dev Raj was collecting the “currency notes” after printing; apprended both the appellants; sealed the counterfeit currency notes numbering 158, Exhibits P23 to P180 (in the denomination of 100/- each, printed on one side only and total amounting to 15,800/-) in a parcel with his seal bearing impression “HS”, handed over the seal, after use, to PW Bhupinder Singh; took the sealed parcel, the computer and its components, Exhibits P1 to P22, in police possession vide memorandum, Exhibit PW4/D; recovered a genuine hundred-rupee Indian currency note from the scanner and took it in police possession vide memorandum, Exhibit PW4/E; drew a site plan, Exhibit PW4/C, of the scene of occurrence; recorded statements of witnesses; and on return to the police station deposited the case property with Muharrir Head Constable (MHC) Avtar Singh. The recovered fake currency notes and genuine currency note were sent, for examination, to Reserve Bank of India, Chandigarh from where a report, Exhibit PW3/A, was received stating that the currency notes in question were found to be forged.

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Proceedings before the Courts below:

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On completion of investigation, Officer-in-charge of the Police Station, prepared a report and forwarded it to the learned Chief Judicial Magistrate, Sangrur, as required by sub-section (2) of Section 173 of the Code

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but from a perusal of the report it appeared to the learned Chief Judicial Magistrate that the offences involved therein were triable exclusively by the Court of Session. Therefore, after complying with the provisions of Section 207 of the Code, learned Chief Judicial Magistrate committed the case to the Court of Session at Sangrur and it was ultimately entrusted to the learned trial Court.

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Upon consideration of the record of the case and the documents appended therewith, and after hearing the submissions of the appellants and the prosecution, the learned trial Court formed an opinion that there were grounds for presuming that the appellants had committed offences punishable under Sections 489-A, and 489-D, IPC, and framed in writing, a charge against the appellants.

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The appellants pleaded not guilty to the charge and claimed to be

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tried.

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In a bid to substantiate the charge, prosecution examined the Investigating Officer, SI Harwinder Singh as PW4, Assistant Sub Inspector (ASI) Gurcharan Singh as PW6, HC Dalbara Singh as PW 5, HC Avtar Singh as PW1, Draughtsman Dharminder Singh as PW2, and R.P. Jain, Assistant General Manager, Reserve Bank of India, Chandigarh Branch, as PW3.

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After the witnesses for the prosecution had been examined, learned trial Court questioned the appellants generally on the case, found acquittal of the appellants unwarranted and, accordingly, called upon them to enter on their defence and adduce any evidence they might have in support thereof. The

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appellants, however, did not adduce any evidence in defence.

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After evidence in defence was closed, the learned Prosecutor summed up the case and learned defence counsel replied it.

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Upon appraisal of the evidence in the light of submissions made on behalf of the prosecution and the defence, learned trial Court found that guilt of the appellants was proved beyond reasonable doubt; and accordingly, vide judgment of conviction and order of sentence dated June 13, 2003, convicted and sentenced them as here-in-before stated.

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Submissions for and against the impugned judgment and order:

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Aggrieved by the judgment of conviction and order of sentence dated June 13, 2003, appellants have preferred the instant appeal, which the respondent-State is contesting.

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I have examined the record of the case in the light of the submissions made for and against the impugned judgment and order.

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Learned counsel representing the appellants have very strenuously argued that appellant Dev Raj had made a complaint against the Investigating Officer (PW5) when the latter was posted at Police Station, City, Sunam and to settle his vendatta he has falsely implicated the appellants, who happen to be related to each other, in the case under adjudication by himself preparing the fake currency notes and it is for this reason that no independent witness has been examined and even Bhupinder Singh, who, according to the prosecution story, was associated with the raid and recovery, has been kept away from the witness stand for fear of the truth coming to light.

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It is also contended on behalf of the appellants that the fake currency notes, though are stated to be sealed on the spot, but the currency notes and the seal, statedly used for sealing the same, remained in possession of the Investigating Officer. This, according to learned counsel for the appellants, should suffice to doubt veracity of the prosecution story, for, in the given circumstances tampering of the currency notes while in police possession cannot be ruled out.

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Learned counsel for the appellants have also pointed out various contradictions/variations in the evidence of prosecution witnesses to support their contention that the witnesses have told lies on oath.

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Learned Assistant Advocate General, Punjab appearing for the respondent-State, nonetheless, has defended the impugned judgment and order and has submitted that in the depositions of PWs SI Harwinder Singh and ASI Gurcharan Singh printing by, and recovery from, the appellants, of the fake currency notes, have been established, beyond reasonable doubt; and that the appellants were apprehended while preparing counterfeit currency notes with the help of a scanner and computer and the currency notes, Exhibits P23 to P180, have been found to be fake as per report, Exhibit PW3/A. According to him both the witnesses of recovery have withstood the test of crossexamination and, as such, their evidence cannot be discarded either because certain negligible variations have creeped in into their depositions or because no public witness has been examined to corroborate their evidence.

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Nothing more has been urged on either side.

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Findings in appeal:

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Main plank of appellants’ challenge to the case of the prosecution is that it is the brainchild of SI Harwinder Singh, the Investigating Officer, against whom (and a few other police officials) appellant Dev Raj had once made a complaint. The submission seems to carry weight. SI Harwinder Singh appeared as PW4 before the learned trial Court. Defence, in the first instance, attempted to know from him if he admitted to his posting at Sunam. He readily admitted that he remained posted at Police Station, City, Sunam and knew appellant Dev Raj but strongly denied that an FIR was recorded in that Police Station on August 10, 2000 (involving appellant Dev Raj as an accused) and that said appellant had filed a complaint against him alleging his false implication in that FIR. But he could not withhold the truth for long and under the strain of cross examination, almost immediately, admitted that appellant did file a complaint against him before the Court and higher police authorities alleging his false implication in a criminal case. At the same time he could not deny that appellant Bikram Singh is related to appellant Dev Raj. Learned counsel has referred to a judgment dated February 19, 2010 of this Court rendered in Criminal Appeal No. 707-SB of 2003, Dev Raj versus State of Punjab, whereby conviction of appellant Dev Raj in a case arising from an FIR dated August 10, 2000, recorded at Police Station, Sunam, has been set aside. In the situation, evidence of the witnesses examined by the prosecution in support of the charge against the appellants needs to be analyzed with great caution.

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No evidence, in the form of rent deed or deposition of the landlord, namely Pritam Singh or anyone else, has been brought forth to establish that the appellants were tenants in a room in House No. 14/77, Hargobindpura Basti, Sangrur, owned by Pritam Singh. Even arrest of the appellants from that room is highly suspect. According to PW4, SI Harwinder Singh, the house consisted of seven rooms, its gate had a simple bolt which he opened by crossing (the wall) but according to PW6, ASI Gurcharan Singh, the only other witness examined by the prosecution in proof of the raid and recovery, there were only 4 or 5 rooms in the house; and gate of the room where the appellants were working, as also that of the house, opening in the courtyard, was open. He (PW6) also did not know how many storeys the house consisted of. This contradiction is significant in view of the assertion of the witnesses that they stayed on the spot of recovery for about five hours and, presumably, must have entered the house from the main gate before finding out the room where the operation of counterfeiting Indian currency, statedly, was being carried on, and renders apprehension of the appellants from there doubtful.

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As per prosecution story, when recovered, the fake currency notes, Exhibits P23 to P180, were printed on one side only but when shown to PW4, SI Harwinder Singh during cross-examination, 5 or 6 of these currency notes were found to be printed on both the sides. PW3, R.P. Jain has also admitted that some of the fake currency notes were printed on both the sides, though he did not make a mention of this fact in his report, Exhibit PW3/A.

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Claim of the prosecution that the appellants were caught while

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printing the fake currency notes with the help of a Colour Printer, Exhibit P1, Monitor, Exhibit P2, Central Processing Unit (CPU), Exhibit P3, Scanner, Exhibit P4, Key Board, Exhibit P5, Mouse, Exhibit P6 and Pneumatic Mercury Machine, Exhibit P7, also has remained unproved because no effort has been put in to get these components of the computer tested from an expert to show that these were useable and fake currency notes, Exhibits P23 to P180, were, in fact printed with the help of the recovered computer and its accessories. PWs SI Harwinder Singh and ASI Gurcharan Singh admitted before the learned trial Court that they did not know how to run a computer. In the today’s world it is not difficult to connect a particular task accomplished with the help of a computer, with the machine used for doing so. Examination of the hard disc can decipher every word typed from a computer. Soft-wares to track and retrieve even deleted data are available, aplenty. Unfortunately, no such effort has been made.

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Failure of the prosecution to get the recovered computer examined to know if it was used to print the recovered fake currency notes, gains significance in view of admission of PW3 R.P. Jain that the fake currency notes produced before him had been copied with the help of a photocopier and that such type of notes cannot be reproduced by a computer. It is a matter of common knowledge and has been admitted by PW R.P. Jain, that these days computers and photocopiers are installed almost in every office.

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The requirement of joining an independent witness may not be based upon rule of law but it is certainly based upon rule of prudence.

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Particularly in the cases where there is allegation that the Investigating Officer is biased against the accused and the investigation is not impartial, corroboration to the evidence of official witnesses by independent public witness(es) should be brought in so as to wash off the allegation of biased and partisan approach of the official witnesses. In the instant case though PW Bhupinder Singh was, statedly, joined with the raid party but for inexplicable reasons he has been kept away from the witness box in spite of the fact he was an important witness because he is shown to have attested Exhibit PW4/D, whereby the fake currency notes and the machine and its components, used for preparing the same were taken in police possession, Exhibit PW4/E, whereby a genuine hundred-rupee note was taken in possession, Exhibit PF, where-under persons of the appellants were searched, and Exhibit PG, whereby the appellants were arrested. Not only this, according to Exhibit PW4/D, seal after use was handed over to him and he alone could say whether or not the seal was, in fact, handed over to him and if yes, whether or not it remained with him till after receipt of report, Exhibit PW3/A, from Reserve Bank of India. This gains more importance, for, PWs SI Harwinder Singh and ASI Gurcharan Singh have maintained calculated silence as regards handing over of the seal to this witness and the date on which this seal came back to the Investigating Officer. Reluctance of the prosecution to bring PW Bhupinder Singh before the Court, in the situation, attracts illustration (g) appended to Section 114 of the Evidence Act, 1872 and leads to an inference that PW Bhupinder Singh, who could be but has not been produced as witness, if produced would have

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demolished case of the prosecution that the fake currency notes and machine etc. were recovered from possession of the appellants and that the seal was handed over to him and remained in his custody till after receipt of report, Exhibit PW3/A, from Reserve Bank of India.

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Even the report, Exhibit PW3/A, declaring the recovered currency notes as fake, is not free from doubt. Author of this report, namely R.P. Jain (PW3) has admitted under the stress of cross examination that he has no diploma or/and experience in examination of currency notes and has not ever been to the Security Press where the currency notes are printed. He also administered a fatal blow to the case of the prosecution by stating that the kind of the currency notes produced before him could not be reproduced on a computer. Though under Section 138 of the Evidence Act, 1872, a right was available to the prosecution to re-examine the witness to seek a clarification on this point but it thought it wasteful to avail itself of the opportunity. This silence of the prosecution also works against its plea.

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Result:

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In view of the above, finding of the learned trial Court that the prosecution has been able to prove guilt of the appellants, beyond reasonable doubt, cannot be sustained and is hereby set aside and reversed.

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As a consequence, the appeal succeeds and is accepted, impugned judgment and order dated June 13, 2003 convicting and sentencing the appellants, are set aside and the appellants are acquitted of the offences of which they been convicted.

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The appellants are on bail. Their bail/surety bonds are discharged. Amount of fine, if already deposited by them, shall be refunded to the appellants.

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(MAHAVIR S. CHAUHAN) JUDGE

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01.05.2014 adhikari

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Virendra singh adhikari 2014.05.09 11:15 I attest to the accuracy and integrity of this document High Court Chandigarh

Dev Raj etc. v. State of Pb.

Case brief

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Dev Raj etc. v. State of Pb.

Case brief

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