Allowed

Jatinder Singh and Another v. State of Punjab

Punjab & Haryana HC1 May 2014CRA-S/1542/2003

Case brief

AI extract

What is this about?

High Court of Punjab and Haryana acquitted appellants convicted for counterfeiting currency notes. Trial court's finding was set aside due to failure to examine key witnesses, lack of link between seized computer and fake notes, non-disclosure of evidence under Section 313 CrPC, and contradictory convictions.

What did the court decide?

Accused acquitted, conviction set aside, sentences quashed, bail bonds discharged, and deposited fines refunded.

Jatinder Singh and Another Vs State of Punjab — Cheque Dishonour | Punjab & Haryana HC (2014)

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CRA-S-1542-SB-2003

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IN THE HIGH COURT OF PUNJAB AND HARYANA, AT CHANDIGARH

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CRA-S-1542-SB-2003 Date of Decision : 01.05.2014 Jatinder Singh and another ... Appellants

Versus

State of Punjab

... Respondent

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

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Present : Mrs. G.K.Mann, Advocate, for the appellants.

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Mr. A.P.S.Gill, Assistant Advocate General, Punjab, for the 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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This is an appeal under sub-section (2) of Section 374 of the Criminal Procedure Code, 1973 (Cr.P.C., for short). On the target is judgment of conviction and order of sentence dated 05.08.2003 passed by learned Additional Sessions Judge, Amritsar (trial court, for short) in Sessions Case No. 32 of 2002, State versus Jatinder Singh and another, convicting and sentencing the appellants, Jatinder Singh aka Sonu and Hardip Singh aka Deepa, each, to rigorous imprisonment for a term of four years in addition to fine amounting to Rs.400/- and in default of payment of fine to further rigorous

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imprisonment for a term of two months under Sections 489A and 489D of the Indian Penal code, 1860 (IPC, for short), and rigorous imprisonment for a term of two years in addition to fine amounting to `200/- and in default of payment of fine to further rigorous imprisonment for a term of one month under Sections 489C, IPC.

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Prosecution story :

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Put as concisely as one may, prosecution story, as discernible from the report submitted in terms of sub-section (2) of Section 173, Cr.P.C., is that on 11.05.2002 a police party, comprising Sub Inspector (SI) Gurdev Singh, Station House Officer (S.H.O.), Police Station, Chheharta, Amritsar (hereinafter referred to as the Investigating Officer) and other police officials, was present at Naraingarh bye-pass in connection with usual patrol duty. Investigating Officer received a telephonic message from Ashwani Kapoor DSP (Rural-I) to the effect that the appellants were running a computer centre with the name of “Rim Zim Computer Centre” in Guru Bazar, Chheharta and were preparing fake currency notes for using the same in the market as original. He wrote a note (commonly called a ruqa), Exhibit PG, on the basis of which First Information Report (FIR, for short), Exhibit PA, was registered. Investigating Officer joined Natha Singh as a public witness, raided the disclosed place, found that appellant Hardip Singh aka Deepa was preparing fake currency notes by operating the computer, and appellant Jatinder Singh aka Sonu was preparing bundles thereof. Investigating Officer, apprehended the appellants; recovered from appellants’ possession, vide memorandum,

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Exhibit PB, one Central Processing Unit (CPU), Exhibit P2, Monitor, Exhibit P1, Printer, Exhibit P3, Scanner, Exhibit P4, Key Board, Exhibit P6, Mouse, Exhibit P5, computer leads, Exhibits P7 and P8, 34 fake currency notes in the denomination of 1000/-, each, printed on both sides, 22 currency notes of the same denomination printed on one side only, one currency note in the denomination of 100/- and 123 currency notes in the denomination of 100/-, each, printed on one side only, (Exhibits P9 to P188 -with face value of 68400/-), after making the recovered fake currency notes into a parcel and sealing that parcel with his seal bearing impression “GS”; handed over the seal, after use, to Assistant Sub Inspector (ASI) Gurinderpal Singh; drew site-map of the place of occurrence, Exhibit PH, and recorded statements of the witnesses. Recovered fake currency notes were examined by experts at Reserve Bank of India and vide report dated 09.07.2002. Exhibit PJ, it was opined that the notes sent for examination were forged currency notes.

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Proceedings before the jurisdictional magistrate :

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Soon after investigation was complete, officer-in-charge of the Police Station forwarded to the learned jurisdictional magistrate, a report as required by sub-section (2) of Section 173, Cr.P.C. Learned jurisdictional magistrate complied with the provisions of Section 207, Cr.P.C., and on perusal of the report it having appeared to him that offence involved in the case was triable exclusively by the Court of Session, he committed the case to the Court of Session at Amritsar.

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Proceedings before the trial court :

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Learned Sessions Judge, Amritsar assigned the case for disposal to the learned trial court.

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Upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the appellants and the prosecution, learned trial Court formed an opinion that there was ground for presuming that the appellants had committed an offence punishable under Sections 489-A, 489-B, 489-C and 489-D, IPC, and the offence being triable exclusively by the Court of Session, framed in writing a charge against the appellants, to which the appellants pleaded not guilty and claimed to be tried.

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Prosecution examined ASI Ranjit Singh as PW1, Constable Dara Singh as PW2, ASI Amlok Singh as PW3, SI Gurdev Singh as PW4, Head Constable (HC) Surinder Pal Singh as PW5 and HC Sher Jang as PW6.

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After witnesses for the prosecution had been examined and before the appellants were called on for their defence, learned trial Court questioned the appellants generally on the case so as to afford them an opportunity to explain the incriminating circumstances brought on record by the prosecution. Appellants denied all these circumstances and reiterated plea of their innocence and false implication.

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On being called upon to enter on their defence, appellants examined DWI Narinder Singh, Record Keeper, Sessions Court, Amritsar, and DW2, HC Suraj Pal.

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When examination of witnesses of defence was complete, learned Public Prosecutor summed up his case and the learned defence counsel replied

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to it.

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Learned trial court, in view of the submissions made for and against the charge, formulated following question for determination:-

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“ Whether on 11.05.2002 at 02.00 p.m. the appellants were found counterfeiting the currency notes and were found in possession of 180 fake and forged currency notes of the value of Rs. 68,400/-which were recovered from their possession? ”

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On hearing the submissions made at the bar and appraisal of the evidence available on record, learned trial court answered the formulated question vide judgment dated 05.08.2003, as under:

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“ In view of the above discussion, I am of the opinion that the prosecution has been able to prove its case beyond reasonable doubt against the appellants as such both the appellants are held guilty and are convicted under sections 489A, 489C and 489D of the Indian Penal Code. Let they be taken into custody and be heard on the question of sentence .”

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The appeal :

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As aforesaid, judgment and order dated 05.08.2003, are under challenge in this appeal brought by the appellants.

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Respondent-State is contesting the appeal.

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I have heard learned counsel for the parties, besides scanning the record requisitioned from the learned trial court.

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Learned counsel for the appellants has assailed the impugned judgment and order primarily on the following five counts, namely,

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a. the computer centre from where the fake currency notes are stated to have been recovered, was located in a busy market. Still no witness from the market was joined with the

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raid and recovery;

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b. computer and its accessories statedly recovered from the computer centre, were neither identified by the make of the machine nor sealed on the spot;

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c. DSP Ashwani Kumar from whom Investigating Officer claims to have received information about stated involvement of the appellants in the act of counterfeiting of Indian currency notes, Natha Singh, a public witness, statedly joined while proceeding to the place of occurrence, and ASI Gurinder Pal Singh, to whom seal after use was statedly handed over by the Investigating Officer, have been kept away from the witness stand;

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d. numbers of the “recovered” fake currency notes were not recorded in the memorandum of recovery, police diary, malkhana register or in any other record which makes it doubtful if the fake currency notes referred to in the report, Exhibit PJ, were the same fake currency notes which were statedly recovered from the spot of occurrence; and

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e. the computer was not got examined by a computer expert to connect the “recovered” fake currency notes with it.

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Learned State counsel, nonetheless, has defended the impugned judgment and order saying that act of counterfeiting of the Indian currency notes by the appellants and recovery thereof from their possession have been

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sufficiently proved in the evidence of PWs ASI Amolak Singh and SI Gurdev Singh and, therefore, the contentions raised on behalf of the appellants are unnecessary and inconsequential.

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No other or further point has been urged on either side.

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Burden of proof :

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The word “proof” needs to be understood in the sense in which it is defined in the Indian Evidence Act, 1872 (Evidence Act, for short) because proof depends upon the admissibility of evidence. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or consider its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word “proved” in Section 03 of the Evidence Act. What is required is production of such materials on which the court can reasonably act to reach the supposition that a fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him.

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To put it otherwise, the word “proof” ordinarily has one of two meanings: either the conviction of the judicial mind on a certain fact, or the means which may help towards arriving at that conviction. Use of the word “strict” seems to be to point to the second of these two meanings, and “strict proof”, therefore, means anything which may serve directly or indirectly to convince a Court and has been brought, before the Court in legal form and in

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compliance with the requirements of the law of evidence. (per Abed Khondkar vs Mahendra Lal De , 1915 ILR 42 Cal 830)

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Further, realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged appellants and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be, is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between “may be true” and “must be true” and this basic and golden rule only helps to maintain the vital distinction between “conjectures” and “sure conclusions” to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record (per Ashish Batham v. State of M.P. , (2002) 7 SCC 317).

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It, therefore, has to be found out if the prosecution has been able to discharge the burden that lay very heavily upon it.

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Can the findings recorded by the trial court be sustained ?

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Prosecution’s story is that the Investigating Officer received a

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telephonic message from DSP Ashwani Kapoor to the effect that the appellants were preparing fake currency notes at “Rim Zim Computer Centre” in Guru Bazar, Chheharta, whereupn he joined Natha Singh as a public witness; raided the disclosed place; found the appellants indulging in the act of counterfeiting the Indian currency notes; recovered from appellants’ possession a computer and its accessories, and fake currency notes, Exhibits P9 to P188; after making the recovered currency notes into a parcel and sealing that parcel with his seal bearing impression “GS”, vide memorandum, Exhibit PB; and handed over the seal, after use, to Assistant Sub Inspector (ASI) Gurinderpal Singh. However, DSP Ashwani Kapoor, from whom the information was alleged to be received, Natha Singh, who, according to prosecution story, remained present throughout the raid and recovery and ASI Gurinder Pal Singh, to whom the seal, after use, was statedly handed over, have been kept away from the witness box. Examination of these witnesses was necessary to provide necessary links in the prosecution’s chronicle. DSP Ashwani Kapoor, perhaps, could throw light on how he came to know that the appellants were counterfeiting Indian currency notes and why he himself could not nab them. While it has remained unexplained why seal after use was not handed over to the public witness, Natha Singh, and why ASI Gurinder Pal Singh, a junior of the Investigating Officer, was preferred, non examination of ASI Gurinder Pal Singh has kept shrouded in mystery when the seal was returned by him to the Investigating Officer-whether before or after the recovered fake currency notes had been sent to Reserve Bank of India for examination. Time of return of the seal gains

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importance because the Investigating Officer, for incomprehensible reasons, preferred ASI Gurinder Pal Singh to hand over the seal to him and neither made a mention of the numbers of the recovered fake currency notes in the memorandum of recovery, nor in the police diary or anywhere else, nor affixed some identification mark thereon. This circumstance, in my opinion, creates doubt if the currency notes referred to in report, Exhibit PJ, as forged currency notes were, in fact, recovered from the spot and contents of the sealed parcel containing the recovered currency notes remained free from tampering till it was sent to Reserve Bank of India.

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Learned trial court may be right in its observation that by joining Natha Singh with the raid and recovery, requirement of Section 100(4), Cr.P.C., stood satisfied, but examination of this witness was necessary in view of what has been said hereinabove. May be, Natha Singh was summoned but was not examined by the defence as a witness but this could not be used by the learned trial court to raise an adverse presumption against the defence because initial burden to prove its case lay upon the prosecution and till this burden was discharged, the appellants could not be expected to prove their innocence. At least, ASI Gurinder Pal Singh could be examined as a witness to dispel the doubt that the seal of Investigating Officer did not come into hands of the Investigating Officer till after despatch of the sealed parcel containing recovered fake currency notes to Reserve Bank of India. It may also be added that examination of an independent/public witness may not be a rule of law but it certainly is a rule of prudence so as to drive out any doubt about the veracity

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of case of the prosecution.

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Learned trial court has ruled out false implication of the appellants by saying that 180 notes of the denomination of 100 and 1000/- were recovered, details whereof have been given in the memorandum of recovery, Exhibit PB, and their numbers have also been given in the report of Reserve Bank of India, Exhibit PJ, no suggestion has been given to the prosecution witnesses that the case property has been planted upon the appellants, there is no such plea taken by the appellants in their statements recorded under section 313, Cr.P.C., such a huge quantity of fake currency notes could not be planted upon the appellants, there is nothing in the statement of the appellants or in the evidence of defence witnesses that the police had enmity with them, and, as such there was no motive for the police for falsely implicating them in this case, recovery witnesses PW3 ASI Amolak Singh and PW4 SI Gurdev Singh have said that the case property was sealed at the spot after converting the same into sealed parcel with a seal bearing impression “GS” and sealed parcel containing fake currency notes was opened in the court. The reasoning, in my opinion, is evidently fallacious. Sealing of the recovered currency notes on the spot loses its significance in view of what has been said in the foregoing paragraphs of this judgment. Mention of numbers of the currency notes in Reserve Bank’s report, Exhibit PJ, cannot be read to dispel the doubt as referred to hereinbefore. The finding that the sealed parcel containing the recovered fake currency notes was opened in the Court is factually incorrect because the parcel was opened by the experts at Reserve Bank of India for

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examination of the “notes” and absence of motive is not, at all, material.

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What compounds the situation further for the prosecution is its failure to connect the recovered fake currency notes with the recovered machine and the machine with the appellants. Make and identification nuumber of the computer, printer and scanner etc. have not been recorded anywhere in the record of investigation. No evidence has been brought in to prove that the computer etc. were owned/acquired and possessed by the appellants. Why the machine and its accessories were not sealed on the spot, is another question that has been left unanswered. Above this all, no effort has been made to get the computer examined by a computer expert to establish that the recovered fake currency notes were, in actual, printed by it, even though techniques are available, aplenty, to track and retrieve even the data deleted from a computer and to know that a particular document has been created or produced with the aid of a particular machine.

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Evidence not put to the appellants under Section 313, Cr.P.C. :

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Further, evidence that the Investigating Officer joined Natha Singh as a public witness, raided the disclosed place, found that appellant Hardip Singh aka Deepa was preparing fake currency notes by operating the computer and appellant Jatinder Singh was preparing bundles thereof, apprehended the appellants, number (say quantity) and denominations of the recovered fake currency notes, as also sides thereof which were printed, made the recovered fake currency into a parcel, sealed that parcel with his seal bearing impression “GS”, and handed over the seal, after use, to Assistant Sub Inspector (ASI)

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Gurinderpal Singh, has not been put to the appellants in their examination under Section 313, Cr.P.C. It should be borne in mind that the provision (Section 313, Cr.P.C.) is not intended to nail an accused to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem . The word "may" in clause (a) of sub-section(1) in Section 313, Cr.P.C., indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain, cannot be used against him (per Asraf Ali v. State of Assam , Criminal Appeal No. 174 OF 2001 , decided by the Hon’ble Supreme Court on July 17, 2008). That being so this part of the evidence, which incidentally happens to be very material part, cannot be read against the appellants and in the absence of this evidence case of the prosecution is bound to fall to the ground.

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Section 354(1), Cr.P.C. not complied with :

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What a judgment should contain has been stated in Section 354, Cr.P.C., Sub-section (1) of Section 354, Cr.P.C., reads as under:

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“ 354. Language and contents of judgment.

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(1) Except as otherwise expressly provided by this Code, every judgment referred to in section 353,-

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(a) shall be written in the language of the Court;

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(b) shall contain the point or points for determination, the

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decision thereon and the reasons for the decision;

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(c) shall specify the offence (if any) of which, and the section of the Indian Penal Code (45 of 1860 ) or other law under which, the appellants is convicted and the punishment to which he is sentenced;

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(d) if it be a judgment of acquittal, shall state the offence of which the appellants is acquitted and direct that he be set at liberty. ”

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A perusal of the cited provision brings out that the court is required, amongst other things, to specify the offence of which, and Section of the Indian Penal Code or other law under which the accused is convicted, as also the offence of which the accused is acquitted. Even otherwise, the court is obliged to either convict or acquit the accused of the offences of which he has been charged. In the instant case charge against the appellants was framed under Sections 489A, 489B, 489C and 489D, IPC, but they have neither been convicted under, nor acquitted of, the offence of Section 489B, IPC. Impugned judgment is liable to be set aside for this reason alone.

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In view of the above, for a moment I thought of remitting the case back to the learned trial Court for fresh decision but then found it to be unnecessary in view of the inherent deficiencies in the case of the prosecution, as here-in-before pointed out, which cannot be made good if the learned trial Court is asked to write a judgment afresh. However, failure of the learned trial Court to record a finding under Section 489B, IPC, renders the impugned judgment unsustainable.

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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

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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 05.08.2003 convicting and sentencing the appellants, are set aside and the appellants are acquitted of the offences of which they have 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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Jatinder Singh and Another v. State of Punjab

Case brief

What is this about?

What did the court decide?

Jatinder Singh and Another v. State of Punjab

Case brief

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What did the court decide?

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