(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. As all the appeals arise from the common judgment and order passed by the learned Sessions Judge in Sessions Case No.258/05, they are being considered simultaneously.
2. The short facts are that the complaint (Exhibit 98) was filed by G.V. Desai, p.w.10 in capacity as Police Inspector, Task Force, Surat City stating that he had received information from his reliable sources that one Apoorva Shukla, accused no.1, belonging to Raipur Chattisgarh has come to Surat and he is to deliver fake currency notes of denomination of Rs.100 each to his other known brokers Rambhai Nakrani, accused no.5, Dayaram Mochi, accused no.7 and Hardas Vadaliya, accused no.6 at the rate of 20% and they were also known to the informant and such fake currencies are to be handed over at 3.00 in the morning at a place located opposite to Jayvijay Lodging Boarding for the purpose of putting into circulation. After verifying the information, he arranged for the raid and panchas were also brought for such purpose. After search of each other, the police officers as well as the panchas proceeded in jeep to Surat Railway Station near Jayvijay Lodging Boarding and they segregated and arranged a watch. In the meantime within 15 minutes, one black coloured Kinetic motorcycle with two persons came from Delhi Gate and they parked their vehicle near hotel Jayvijay and were waiting for somebody and thereafter, within 3 minutes, one person came walking from Sufibaug Road and they started talking with the person having kinetic motorcycle. In the meantime, within 5 minutes, another person came from Surat Railway Station having black coloured bag with him and he also started talking with the person having kinetic and all the four wanted to exchange certain material from their pocket and at that time, the informant told the raiding officer that all the four persons are the same having fake currencies and therefore, the police officers with the panchas cordoned all the four persons and thereafter, upon further inquiry, the first person named himself as Apoorva Ramakant Shukla, accused no.1, originally residing at 16/804, Shukla colony, Jail Road, Raipur Chattisgarh and upon search, it was found that he was having black coloured rexin bag containing certain cloths and also currencies of Rs.100 each in 5 bundles. The currencies were prima facie found to be fake. The total numbers of currencies found were 477 each of Rs.100, i.e., 47,700 and upon further inquiry, it was found that the said person was also having driving licence and certain other genuine currencies. Thereafter, upon inquiry by panchas, the other person described himself as Rambhai Haribhai Nakrani, accused no.2 and upon his search, from his left pocket, three bundles were found of the currency notes of Rs.100 each, prima facie appearing to be fake currency, and in all, 300 fake currency notes of Rs.100 each, total of Rs.30000 were found from his possession. The third person described himself as Hardasbhai Laxmanbhai Vadalia, accused no.6 and upon search, from the pocket of his pants, the currencies of Rs.100 prima facie appearing to be fake, were found in one bundle, total 100 notes of Rs.100 each, i.e. Rs.10000/. One mobile and genuine currencies were also found. The fourth person described himself as Dayaram Dhannuji Purushottam, accused no.7 and upon his search, one bundle of Rs. 100 each, prima facie appearing to be fake currencies were found containing 100 notes, total Rs.10000. The other mobile and genuine currencies from his pocket were also found. Upon further inquiry by him, accused no.1 informed that he had bought the currencies from Madhu Nair (absconding accused at the relevant point of time) at the rate of 20% and he was to handover to Rambhai accused no.5, the fake currency notes of Rs.30000 against Rs.6000, to Hardas, fake currency notes of Rs.10000 against Rs.2000, and to Dayaram, fake currency notes of Rs.10000 against Rs.2000. All the currencies were seized, and the complaint was filed for the alleged offence under sections 489A, 489B and 489C read with sections 120B and 114 of the IPC. The complaint was filed on 23.08.2005.
3. Thereafter, the aforesaid complaint was investigated by the police and the chargesheet was filed before the competent court and ultimately, the case was committed to the Sessions Court being Sessions Case No.258/05. The learned Sessions Judge, framed the charges against all the accused and since the accused did not plead guilty, the trial was conducted. The prosecution in order to prove the guilt of the accused, examined 12 witnesses, details of who are mentioned by the learned Sessions Judge at para 7 of the judgment. The prosecution also produced documentary evidences of 22 documents, details of which are also mentioned by the learned Sessions Judge at para 8 of the judgment. The learned Sessions Judge thereafter found that the prosecution has been able to prove the case of the accused for the offence under section 489A and 114 of IPC, but found that the prosecution has been able to prove the case against the original accused nos. 1,5, 6 and 7 for the offence under sections 120B, 489B and 489C read with section 114 of the IPC. The learned Sessions Judge also found that the prosecution has not been able to prove the case against the original accused nos. 2, 3,4 and 8 for the offence under sections 120B, 489B, 489C and 114 of IPC. Therefore, the learned Sessions Judge acquitted the accused nos. 2,3,4 and 8 but convicted accused nos.1, 5, 6 and 7 for the offences which were proved. The learned Sessions Judge thereafter, heard the prosecution as well as the defence on the aspect of sentence and imposed sentence upon accused nos.1, 5, 6 and 7 of life imprisonment with the fine of Rs.5000 and further 30 days SI for default in payment of fine for the offence under section 489B of IPC. The learned Sessions Judge also imposed sentence of 5 years SI upon accused nos.1, 5, 6 and 7 for the offence under section 489C of IPC with the fine of Rs.5000 and 30 days further SI for default in payment of fine. The learned Sessions Judge imposed sentence of 3 years SI upon the accused nos.1, 5, 6 and 7 for the offence under section 120B of IPC and it was further observed that all sentences shall be undergone concurrently and the period as undertrial prisoner shall be given set off. It is under these circumstances, the present appeals before this Court.
4. It may be recorded that Cr.Appeal No.2080/08 has been preferred by the original accused no.1, Criminal Appeal No.2155/08 preferred by the original accused no.7, Criminal Appeal No.2252/08 has been preferred by the original accused no.5 and Criminal Appeal No.2545/08 has been preferred by the original accused no.6 and all the aforesaid appeals are against the judgment and order of conviction whereas State has preferred Criminal Appeals No. 2246/08 against the acquittal granted by the learned Sessions Judge to original accused nos. 2, 3,4 and 8.
5. It may be recorded that on behalf of original accused no.1, learned counsel Mr.Abiraj R. Trivedi declared before the Court that his client is reported as absconding and he tried to contact his client but the phone number has also changed since as per the record he belongs to Chattisgarh, he has not been able to get any further instruction. So far as other accused nos.5, 6 and 7 are concerned, Ms.Sadhna Sagar has appeared on their behalf. Therefore, we have heard Ms. Sadhna Sagar for original accused nos. 5, 6 and 7. We have also heard learned APP for the State in the appeals preferred by the original accused who have been convicted as well as in the appeal preferred by the State against the judgment and order of acquittal. Mr.Baghel, learned counsel has appeared for the original accused no. 3, 4 and 8 in the appeal preferred by the State and so far as original accused no.2 is concerned, Mr.Pandey has filed his appearance. We have considered the judgment and reasons recorded by the learned Sessions Judge. The learned counsel appearing for both the sides have taken us to the entire record and proceedings and we have considered the same.
6. It may be recorded that so far as appellant of Criminal Appeal No.2080/08 (original accused no.1 is concerned) since he is absconding, the matter may be required to be considered in light of the decision of this Court in the case of Ganeshbhai Virji Rabari v. State of Gujarat 2009(2)GLR 1513 wherein one of us (Jayant Patel, J.) was party. Therefore, similar direction as was issued by this Court in the case of Ganeshbhai Virji Rabari (supra) will be required to be issued and the merits of the matter may be considered at a later stage in the event such contingency arises after restoration of the appeal.
7. However, so far as the remaining accused who have been convicted and who have preferred appeal against the order of conviction are concerned, Ms.Sadhna Sagar raised the only contention for quantum of sentence imposed upon the original accused nos. 5, 6 and 7. She categorically declared before the Court that original accused nos.5, 6 and 7, though have challenged the judgment and order of conviction, but are not pressing the challenge and are accepting the conviction and in her submission, even if the conviction is maintained for the offences which are found to be proved by the learned Sessions Judge, the sentence imposed, more particularly of life imprisonment, for the offence under section 489B is excessive and therefore, this Court may consider the said aspect. She also relied upon the decision of this Court dated 27.03.2012 in Criminal Appeal No.618/09 wherein as per her submission, the currency notes were found from the possession of original accused nos.1 and 2 amounting to Rs.39,800 and Rs.60,000 respectively but the Court found that the appropriate sentence would be 8 years RI and not life imprisonment or even 10 years. Therefore, she submitted that this Court may reduce the sentence appropriately by interfering with the sentence imposed by the learned Sessions Judge.
8. Whereas, learned APP submitted that the offence is a serious offence and it has direct bearing upon the economy of the nation and therefore, the discretion exercised by the learned Sessions Judge of imposition of life imprisonment for the offence under section 489B may not be interfered with.
9. In the appeal preferred by the State against the judgment and order of acquittal of original accused nos. 2, 3, 4 and 8, it was submitted by the learned APP that the Sessions Court has committed error in acquitting the said accused in a serious case though evidence had come on record, may be by way of statement of the other coaccused that they were involved in the circulation of fake currency with accused nos. 1, 5, 6 and 7 who have been convicted. It was submitted that there was also charge of section 120B and section 114 of IPC. The learned Sessions Judge ought not to have acquitted those accused.
10. Whereas, Mr.Baghel for original accused nos. 3, 4 and 8 submitted that the learned Sessions Judge has rightly appreciated the evidence on record and has acquitted the accused since except statement of coaccused, no other evidence has come on record. He submitted that the coaccused cannot be convicted by the learned Sessions Judge based on the statement of another accused. There was no independent material available and therefore, the learned Sessions Judge has rightly taken the view considering the evidence on record which may not be interfered with by this Court in the appeal against the order of acquittal.
11. Examining the matter first for the consideration of the judgment and the order of acquittal of original accused nos.2, 3, 4 and 8 are concerned, it is hardly required to be stated that the scope of the appeal against the judgment and order of acquittal is limited to the extent that unless the view taken is not possible at all considering the evidence on record or unless the view taken is perverse to the record, the appellate court against the judgment and order for acquittal by the trial court would not interfere with. The learned Sessions Judge after considering the evidence has found that the prosecution has not been able to prove the case for the offence under section 489A. He has also found that what role has been played by them for the offence under section 489A is concerned, no evidence has come on record for showing the involvement of original accused nos.2, 3, 4 and 8. So far as other offences are concerned, in our view, even if evidence is considered, the view taken by the learned Sessions Judge for holding that the prosecution has not been able to prove the case against the original accused nos.2, 3, 4 and 8 cannot be said as erroneous since no fake currency is found from the possession of such accused nor any reliable material evidence has come on record for showing that they have played role in circulation of any fake currency. The statement of the coaccused even if involves accused nos.2, 3, 4 and 8, neither can be relied upon for tracing the guilt of the other co accused nor can be a valid base for recording the conviction. The prosecution has to prove by independent evidence for the commission of offence by accused nos.2, 3, 4 and 8 which has not been shown to this Court. Therefore, we find that it cannot be said that the only possible view was for holding accused nos.2, 3, 4 and 8 as guilty, rather it could be said that the prosecution has not been able to prove the case against accused nos.2, 3, 4 and 8 by any reliable material evidence which may lead the Court to hold them guilty. Therefore, it cannot be said that the learned Sessions Judge has committed any error which may call for interference in exercise of the power in the appeal against the judgment and order of acquittal. Under the circumstances, the appeal preferred by the State against acquittal of original accused nos.2, 3, 4 and 8 can be said as meritless and deserves to be dismissed.
12. The aforesaid would lead us to examine the appeal against the conviction and imposition of sentence upon original accused nos.1,5, 6 and 7. Since as observed earlier, original accused no.1 is absconding, we find it proper not to deal with the aspect of his conviction and the sentence imposed upon him at this stage unless he surrenders with the jail and presses the appeal thereafter. Therefore, his case will be separately required to be considered as per the above referred decision in the case of Ganeshbhai Virji Rabari (supra) for which the directions shall be issued hereinafter. However, so far as accused nos.5, 6 and 7 are concerned, as recorded earlier, they have not challenged the conviction and have rather accepted the conviction and therefore, we find that no further discussion would be required on the said aspect, but suffice it to state that considering the evidence on record, it cannot be said that the learned Sessions Judge has committed any error in convicting the accused nos.5, 6 and 7 for the offence under sections 489B, 489C and 120B of IPC.
13. The aspect of imposition of sentence by the learned Sessions Judge upon accused nos.5, 6 and 7, even if considered that they are rightly convicted for the offence under sections 489B, 489C and 120B, deserves consideration. It may be recorded that the learned counsel Ms.Sadhna Sagar for the said accused declared before the Court that the accusedher clients by now have already undergone the sentence of about 7 years and therefore, the aspect of proportionality of sentence for the offence under sections 489C and 120B would be of no consequence and therefore, she has not pressed for reduction of the sentence for the offence under section 489C and 120B of IPC. However, she submitted that this Court may consider the aspects on sentence for the offence under section 489B since life imprisonment has been imposed with the fine of Rs.5000. Under these circumstances, we find that the only aspect to be considered now is as to whether the sentence imposed for the offence under sections 489B of IPC upon the accused nos.5, 6 and 7 could be said as proper or not.
14. The principles of imposition of sentence are by now well settled. Apart from the aspect of personal circumstances of the accused, the Court cannot loose sight of the deterrent effect to be created while imposing sentence, but at the same time, the gravity of the offence and the consequential effect arising on account of the commission of the offence would also be one of the relevant circumstance while imposing sentence. At this stage, it may be recorded that section 489B does provide for the maximum sentence of life imprisonment or a term which may extend to 10 years in a case when fake currency is used as genuine. Therefore, as such, the offence can be said as with more gravity in the event the prosecution has been able to show that not only the accused possessed fake currencies but they intended to use it as genuine currencies and further they had actually used the currencies, may be in past or in future as genuine currencies. In a given case, if the prosecution proves that the fake currencies were not only intended to be used as genuine but were also used as genuine, adversely affecting the persons who accepted the currency as genuine and the adverse effect so already created and may be created in the society including the economy, is huge, the maximum sentence may be called for. But in a case where the person is found to be in possession of fake currencies and is intended to be used as genuine currency but has actually not used the currency as genuine, the gravity of the offence under section 489B could be said as diluted in comparison to a case where fake currencies are intended to be used as genuine and is also in past used as genuine. If the facts of the present case are considered, no evidence has come on record showing that in past any of the accused had used fake currency as genuine nor there is any evidence brought to our notice showing that the fake currencies were actually used as genuine by any of the accused nos.5, 6 and 7. It may be stated that the role of accused no.1 is as a middleman and his role may stand on different footing and different consideration even if the aspects of gravity of the offence is to be considered. But since his appeal is not to be examined on merits at this stage, we need not express our further view on the said aspects. However, so far as accused nos.5, 6 and 7 are concerned, the fact remains that as per the evidence produced by the prosecution they purchased fake currencies from accused no.1 for using it as genuine currency but there is no evidence that they have in past used any fake currency as genuine currency or have actually used fake currency as genuine which has been recovered by the police. Under these circumstances, it appears to us that taking into consideration, the gravity of the offence, the appropriate sentence would be 8 years RI and not life imprisonment as imposed by the learned Sessions Judge. So far as the fine imposed by the learned Sessions Judge is concerned, we find that the same cannot be said to be excessive even if the gravity of offence is considered as observed hereinabove. At this stage, we may also refer to the decision of this Court in the case of Haresh Kalubhai Vaghasiya vs. State of Gujarat dated 27.03.2012 in Criminal Appeal No.618/09 and allied appeals wherein this Court observed at paragraph 23 as under:
“23. In view of the aforesaid observations and discussion, we find that the conviction of A2 for the offence under Section 489A, Section 489B and Section 489C by the learned Sessions Judge in view of the reasons recorded by us herein above cannot be said to be illegal and no interference is called for. However, since as per the evidence of I.O., no evidence transpired for actual circulation of the fake currencies as genuine, the gravity of the offence could be said as diluted to some extent. The learned Sessions Judge has imposed sentence for the offence under Section 489A and Section 489B for 10 years' R.I., for each of the offences, which we find that the same deserves to be modified by reducing the same to 8 years' R.I., for A2. However, so far as the fine imposed and the default sentence imposed by the learned Sessions Judge upon A2 is concerned, we are not inclined to interfere with the same.”
We find that similar view deserves to be taken even in the present case since the facts are more or less same and no evidence has come on record showing that any of the accused had actually used fake currency as genuine in past or out of the fake currency any of the currency was used as genuine currency by any of the accused.
15. In view of the aforesaid observations and discussions, following order
1) Criminal Appeal No.2246/08 preferred by the State shall stand dismissed.
2) In Criminal Appeal No.2080/08, preferred by the original accused no.1, Apoorva @ Monu Ramakant Shukla,as per the view taken by this Court in the case of Ganeshbhai Virji Rabari (supra), there shall be following directions
i. Nonbailable warrant shall be issued against the appellantconvict who is reported absconding, so as to bring him to the custody/jail. The Director General of Police shall assign the work of enforcement of the warrant to the concerned Police Officer not below the rank of P.I. for tracing the accused and to put him to the custody.
ii. If the appellantconvict is not found inspite of the effort by the police, his property shall be attached and the appropriate action shall be taken for attachment and disposal of the property as per the Code of Criminal Procedure.
iii. The officer who may be marked by the Director General of Police will also undertake the aforesaid action for attachment and for disposal of the property in accordance with law.
iv. The report shall be submitted for compliance to the aforesaid direction by the Director General of Police to this Court within a period of 6 months from today and such report shall be placed before the Registrar(Judicial) of this Court. If the Registrar(Judicial) is of the view that the proper action is not taken, he will place the matter before the Court, taking up conviction appeal where the sentence is 10 years and above, for appropriate orders.
v. In the event, the appellantconvict surrenders to the jail or he is put to the custody by putting him in jail, it will be open to him to move this Court for restoration of the appeal, which shall be considered in accordance with law.
3) Criminal Appeal Nos.2155/08, 2252/08 and 2545/08 shall stand allowed to the extent that the conviction made by the learned Sessions Judge upon original accused no.5 Rambhai Haribhai Nakrani, original accused no.6 Hardas Laxmanbhai Vadaliya and original accused no.7 Dayaram Dhanji Purshottam for the offence under sections 489B, 489C and 120(B) is not interfered with. However, the sentence imposed with the fine by the learned Sessions Judge for the offence under section 489C and 120(B) are also not interfered with. But, so far as the sentence imposed upon the aforesaid accused for the offence under section 489B is concerned, the same is modified to the extent that the sentence shall be of 8 years RI instead of life imprisonment. The fine imposed and the default sentence for the said offence are not interfered with.
4) Other directions issued by the learned Sessions Judge for undergoing the sentence concurrently and the setoff of the period as undertrial prisoners are not interfered with.
16. All the appeals shall stand disposed of accordingly.
(JAYANT PATEL, J.) (N.V. ANJARIA, J.) *bjoy