(Per : HONOURABLE MR.JUSTICE N.V. ANJARIA) State has filed Misc. Criminal Application No.11851 of 2011 for condonation of delay of 60 days in preferring Criminal Appeal No.1019 of 2011. Misc. Criminal Application No.11850 of 2011 is filed for leave to appeal. Both the applications as well as the main Criminal Appeal are placed on Board.
1.1 The Criminal Appeal is directed against judgment and order dated 23rd February 2011 by the learned Additional Sessions Judge, Court No.13, Ahmedabad City in Sessions Case No.301 of 2010, whereby both the respondents-accused No.1 and accused No.2 respectively are acquitted of charge of offence under section 489(A), 489(B) and section 114 of The Indian Penal Code.
2. Learned Additional Public Prosecutor having made available copies of the evidence adduced before the trial Court and having taken us through the relevant evidence, we examined the appeal itself on merits and heard learned Assistant Public Prosecutor in extenso.
3. The prosecution case was that one Pathan Mehboobkhan, son-in-law of accused No.1 Fatimabibi (A-1), and who was in jail, had earlier taken loan for autorikshaw from New Indian Bank. Amount of Rs.6,000/- had become due towards loan because of non payment of monthly installments. For purpose of depositing and paying that sum of Rs.6,000/-, one Mustaq Jumbhai Shaikh had gone on 10.03.2009 to Union Bank of India, Delhi Chakla Branch with total 12 notes of denomination of Rs.500/- bearing different numbers. It is case of the prosecution that said notes were counterfeit currency which were obtained by accused No.2 Laik Ahemad from one Nasrinbanu Rafiq Anis Mohamed Ansari, one absconding accused, and given to A-1 Fatimabibi and that the accused persons despite knowing that the currency was fake, sought to deposit the same in the bank and thus committed offence and/or abetted in commission of offence.
3.1 The complaint (Exh.16) was lodged by Branch Manager Nanakbhai Joshi on the next day on 10.03.2009, which was registered at No.41/09 as FIR at Shahpur Police Station for the offences under section 489(A), 489(B) and 114 of the Indian Penal Code. Panchnama was carried out, statements of witnesses concerned were recorded, Muddamal currency notes were sent for examination to Forensic Science Laboratory and charge sheet was filed before the Metropolitan Magistrate Court No.11. The case being Sessions triable, it was committed to Court of Sessions under section 209 of Code of Criminal Procedure, 1973. In course of trial, the prosecution examined 14 witnesses and adduced documentary evidence of Panchnama etc., which all are listed in paragraph 6 and paragraph 8 respectively of the impugned judgment.
4. Adverting to the relevant evidence which we have considered, the prosecution examined Nanakbhai Goardhanbhai Joshi, Branch Manager, Union Bank of India, Dlehi Chakla Branch (PW-2, Exh. 15) and Ashok Ramdin, working as cashier in the bank concerned on the date of incident (PW-3, Exh.
18). PW-2 deposed in his examination in chief that on 09.03.2009, cashier Ashokbhai brought a person named Mustaqbhai in his cabin stating that he had come to deposit money and appeared to be possessing 12 fake notes of denomination of Rs.500/-. On being asked wherefrom the notes were obtained, he called two-three other persons, amongst whom one was accused No.1 Fatimaben. According to PW-2, A-1 stated to him that the money was for repayment of loan and brought from another person. The Branch Manager further stated that in the bank account No.85185, transactions were done since long and no problem had arisen earlier. It was admitted by PW-2 that the 12 notes in question were found in possession of Mustaqbhai and they were not recovered from accused No.1. Similarly, Ashokbhai Ramdin Koshti, Cashier (PW-3, Exh. 18) corroborated the facts stated by PW-2 Manager regarding occurrence of incident and events in the bank. PW-3 further stated that the notes were sent to Forensic Laboratory next day for examination.
4.1 What is culled out to be relevant from the testimonies of PW-2 and PW-3 is that both these witnesses stated, while narrating the incident, that neither Mustaqbhai nor accused No.1 who was later called by Mustaqbhai in the bank tried to run away when given to know that the notes they had brought were fake currency. Both PW-2 and PW-3 deposed to state that the notes in question looked like genuine on first impression and PW-2 stated that the same were sent for examination on the next day as he was not sure about genuineness when they first saw them.
4.2 Witness Mustaq Jumabhai Shaikh (PW-5, Exh. 21) who had come to bank to deposit the money, stated that he had been residing since 16 years in Shahpur and doing TV repairing work in the shop on the ground floor and had relationship with Mehboobbhai and his family who had been staying in the same flat; that on 09.03.2009 sister of Mehboobbhai came in the shop and requested to deposit Rs.6,000/- towards autorickshaw loan in the bank as PW-5 was used to go to Dariapur in the noon; that Mehboobbhai was in jail and hence earlier two-three times also money was given for depositing. The witness further deposed that when the cashier told that the notes were fake, he called the sister as well as mother-in-law (A-1) of Mehboobhai and told to cashier that they were cheated and asked to call the police. He stated that the notes were such as would give impression of being genuine.
4.3 The next witness Rehanabanu Shaikh, sister of Mehboobkhan (PW-7, Exh. 23) stated that her brother Mehboobkhan was previously in Sabarmati Central Jail in connection with mobile telephone case and had taken loan for running autorikshaw which he rented out on going behind the bars. PW-7 except so stating, pleaded ignorance as regards payment of loan and the incident in question. She was declared hostile as she did not support prosecution case. Another witness Mahetabbanu Pathan, wife of Mehboobkhan (PW-8, Exh. 24) also pleaded ignorance about the incident and she too was declared hostile by the prosecution. Witness Firoz Abdulkhalid Rangrej, who was a convicted prisoner in Sabarmati Jail (PW-9, Exh. 25) stated that he did not know anything about the incident nor did know anybody related to the incident. This witness was also declared hostile. Yet another witness Sarafarazkhan Pathan (PW-10, Exh. 26) in his testimony only stated that he had been staying in Danilimda area and knew accused No.2 Laik, and in cross examination he inter-alia denied what he had stated in his statement before police. Nothing comes out from the deposition of this witness who too was declared hostile. Mehboobkhan Ahmedkhan Pathan (PW-11, Exh. 27), in whose bank account the fake currency notes were brought for depositing, stated that police had taken his statement in the Sabarmati Jail; that he was running auto rikshaw since last 8-10 years and had taken loan for rickshaw. This witness was also declared hostile.
4.4. Ganeshbhai Ramabhai Parmar (P.W.:12, Exh.28) and Ajaykumar Vidhyagar Thakkar (P.W.:14, Exh.33) were the investigating officers, whereas Dalabhai Dhanabhai Parmar (P.W.:13, Exh.29) was P. S.O. at the concerned police station who registered the complaint. These witnesses, in their respective depositions, stated only with regard to procedural steps they took in registering the complaint and in process of investigation. P.W.12 states inter alia that he took into custody the currency notes from the Bank. Nothing material came out from the testimonies of these witnesses to help the prosecution.
4.5 Dahyalal Karsandas Makwana (P.W.: 1, Exh.8) was panch witness, who stated that upon being called for drawing panchnama, he had gone to the Bank and that the Branch Manager took into his possession twelve currency notes of domination of 500 in his presence. He further stated in cross examination that panchnama was drawn in his presence. He also stated that it was not possible to distinguish between real and fake currency notes at first sight. Another panch witness Mahebubbhai Karimbhai Rangrej (P.W.:6, Exh.22), stated that he put his signature in the panchnama which was already prepared. This witness was declared hostile having not supported the prosecution.
4.6 The above set of evidence, both oral and documentary, before the trial Court was to be appreciated in light of the ingredients essential for the purpose of establishing offences under sections 489A, 489B and 114 of the IPC. The trial Court framed the issue as to whether it was proved that inspite of having knowledge about the currency notes being fake, accused No.1 sought to deposit the same in the Bank account for repayment of loan of her son-in-law who obtained those currency notes from accused No.2, who in turn had got the same from one Nasrinbanu, and whether the accused abetted each other in commission of the offences.
5. It is well settled that mere buying or receiving or using or even possessing forged currency notes is not enough to make out offence under section 489B or 489C of the IPC. Pertinent observations are made in this regard by Hon'ble Supreme Court in Umashanker vs. State of Chhattisgarh (AIR 2001 SC 3074), as under:
" mens rea of offences under Section 489-B and 489-C is, "knowing or having reason to believe the currency-notes or bank-notes are forged or counterfeit". Without the afore-mentioned mens rea selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit currency-notes or bank-notes is not enough to constitute offence under Section 489-B of I.P.C. So also possessing or even intending to use any forged or counterfeit-notes or bank-notes is not sufficient to make out a case under Section 489-C in the absence of the mens rea, noted above. No material is brought on record by the prosecution to show that the appellant had the requisite mens rea."
5.1 The prosecution has, in the present case, failed to establish 'mens rea', in other words 'criminal intention', on the part of either of the accused that they obtained fake currency notes knowing them or having reason to believe them to be counterfeit with such knowledge tried to use for being deposited in the Bank. Mere receipt of the notes in question by accused No.1 would not make out offence against her when there is no evidence suggesting that she had received them with knowledge or had reason to believe that they were counterfeit. Similarly, there is no connecting evidence worth the name to establish or impute element of mens rea on the part of the accused No.2 as well that he knew the currency notes to be fake and wanted to use them as genuine. There is no evidence on record to prove the charge of offence under Section 489A of the IPC.
5.2 It has also come in evidence on record from the testimonies of Branch Manager and the Cashier of the Bank concerned (Exhs.15 and 18 respectively) and also from evidence of P.W. No.1 that the currency notes in question had such appearance that they looked like genuine at first sight. In light of such evidence, decision of Hon'ble Supreme Court in M. Mammuti vs. State of Karnataka (AIR 1979 SC 1705) is relevant. The Apex Court has held that, if the notes were of such nature that mere look at it would not convince anybody that it was counterfeit, then presumption that accused knew that the notes in possession were counterfeit would not be drawn.
6. In view of the above discussion, findings recorded by the trial Court on appreciation of evidence before it are reasonable and plausible. No error is committed by the trial Court in recording the order of acquittal.
7. Since appeal itself is found to be not deserving admission, no prejudice will be caused to the respondent if delay is condoned ex parte. Therefore, delay of 60 days' is condoned ex parte by allowing Criminal Miscellaneous Application No.11851 of 2011. Application for leave to appeal is rejected and the appeal itself stands summarily dismissed for the reasons recorded hereinabove.
[D.
H. WAGHELA, J.] [N.
V. ANJARIA, J.] Amit Top