(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeals have been preferred by the original accused nos. 2 and 3 against their conviction recorded and the sentence imposed by the learned Sessions Judge in Sessions Case No. 23/2008. It may be recorded that the learned Sessions Judge has found original accused nos. 1,2 and 3 guilty for the offence under section 489B and 120B of IPC and has imposed the sentence of 10 years R/I with the fine of Rs. 2500/- and one month's R/I for default in payment of fine upon each of the accused.
2. As per the prosecution case, a complaint was filed by Dipakbhai Ramdas Adalja PW-1 stating that he was working as Branch Manager, Bank of Baroda, Kalol. That, on 31.3.2008, cashier of the bank Arunbhai Dalpatbhai Shrimali PW-5, informed him that Raghvendra Rajput A-1 had asked him to exchange 100 notes each denomination of Rs. 100/- against currency notes of Rs. 500/-, but when he verified, he found certain notes doubtful in the bundle of the currency notes of Rs. 100/ each which was offered for exchange, and therefore, he informed to Smt. Nishiben Gohel PW-4, who was the officer of the Bank. Thereafter, A-1 was called as to who had given 100 currency notes, each denomination of Rs. 100/- to him, and in response thereto, A-1 informed that one person had come for exchange of these currency notes. A-1 was asked to call the said person or to produce but he could not. It was found that out of 100 currency notes, each denomination of Rs. 100/-, 50 currency notes were fake and not genuine, and therefore, a complaint was filed with Kalol City Police Station Exh. 20.
3. The said complaint was investigated, and ultimately, charge-sheet was filed against four accused including A-2 and A-3, who are appellants herein. Since the case was exclusively triable by the Court of Sessions, it was committed to the Court of Sessions being Sessions Case No. 23/2008.
4. The prosecution, in order to prove the guilt of the accused, examined nine witnesses, the details of whom is mentioned by the learned Sessions Judge at para-5 of the judgment. The prosecution has also produced documentary evidence of 14 documents, the details of which has been mentioned by the learned Sessions Judge at para-6 of the judgment.
5. The learned Sessions Judge, thereafter, recorded the statements of the accused under section 313 of CrPC, wherein, all the accused denied the evidence against them. It may also be recorded that in the further statement, each of the accused had given separately in writing that they have been wrongly involved in the offence.
6. Original accused no. 1 entered the witness box as DW-1 and he was also cross-examined. In his evidence, he deposed that he had acted as a bonafide to help the customers.
7. The learned Sessions Judge, thereafter, heard the prosecution and the defence and found that the prosecution has been able to prove the case against A- 1, A-2 and A-3, but has not been able to prove the case against A-4, and thereafter, A-4 was acquitted. Thereafter, the learned Sessions heard the A-1 to A-3 as well as the prosecution on the aspects of sentence, and thereafter, has imposed the sentence, as referred to hereinabove. Under the circumstances, A-2 and A-3 have preferred the present appeals before this Court. It may also be recorded that A-3 has preferred Criminal Appeal No. 1164/2009, whereas, A-2 has preferred Criminal Appeal No. 1503/2009.
8. We have heard the learned counsel appearing for the appellants as well as learned APP for the State. Learned counsels appearing for both the sides have taken us through the entire evidence on record. We have considered the judgment and the reasons recorded by the learned Sessions Judge.
9. The evidence of complainant PW-1 Dipakbhai Ramdas Adalja Exh. 19, supports the case of the prosecution for making out the case against A-1, as stated in the complaint. PW-2 Malek Iqbalhusen Usmanbhai Exh. 21 has supported the case of the prosecution for recovery of the currency notes, which, as per the prosecution case, was tendered by A-1. The evidence of other two officers of the Bank, namely Nishiben Ashokbhai Gohel PW-4 Exh. 26 and cashier Arunbhai Dalpatbhai Shrimali PW-5 Exh. 32 support the case of the prosecution to the extent that the currency notes were tendered and thereafter there was inquiry for fake currency notes, but A-1 could not produce the person from whom the currency notes were recovered. The officer of mobile company Dhiren Jayantilal Ladiya PW-6 Exh. 33 and Shyamsunder Keshavprasad Prajapati PW-7 Exh. 37, support the case of the prosecution only to the extent of the issuance of mobile phone and mobile print out. There is no material for the inter-se talk between the mobile holder, including the accused herein. The evidence of FSL officer Shailesh Jagjivandas Mistry PW-8 Exh. 42 supports the case of the prosecution to the extent that 50 currency notes, each denomination of Rs. 100/-, were found as not genuine. The evidence of PW-9 Hetubha Govindsinh Zala, I.O. examined at Exh. 57, shows the manner in which the investigation was made. The evidence of A-1, who was examined as DW-1 Exh.67, shows only to the extent that as per A-1, he acted in bonafide to help the customers to exchange the currency. Even in his evidence also, there is no reference specifically for A-2 or A-3.
10. The aforesaid entire evidence even if considered as it is, goes to show that the prosecution has proved the following aspects.
1. The existence of fake currency notes of Rs. 5000/- being 50 notes, each denomination of Rs. 100/-;
2. Such fake currency notes were tendered by A-1 for exchange against currency of Rs. 500/- to the cashier of the bank.
3. A-1 could not produce the customer who had given him the said currency notes, as per the say of A- 1, for exchange.
4. The existence of mobile phone, including that of accused and the mobile print out showing the talk between the accused, but there is no evidence for the contents of the talks or otherwise.
11. The evidence as produced by the prosecution can broadly be classified into two categories, one would be against A-1 and another against A-2 and A-3- appellants herein. Since A-4 has been acquitted, we are not required to consider his case since the State is, in any case, not in appeal against the order of acquittal.
12. We need not to discuss elaborately the evidence against A-1 since he is also not in appeal in the present group of appeals nor it is informed to this Court that any appeal is preferred and is pending against conviction. Therefore, we find that it is not necessary for us to elaborately consider the aspect of the guilt and the involvement of A-1 leaving it open.
13. As we are only concerned in the present appeal qua the evidence of A-2 and A-3 who have been convicted, we need to concentrate only to that extent. Even as per the evidence of I.O., the involvement of A-2 and A-3 was found during interrogation in the police statement of A-1. However, such statement of the co-accused namely A-1, as per the well settled principle of law, read with the Evidence Act, cannot be taken into consideration for tracing the guilt. The learned Sessions Judge has relied upon the provisions of Sec. 10 of the Evidence Act for the purpose of tracing the conspiracy, which also, in our view, is erroneous approach inasmuch as section 10 of the Evidence Act can be considered for tracing the conspiracy provided some material evidence has come on record for the alleged conspiracy, and thereafter, independent evidence also available against the co- accused. In the present case, no evidence worth the name is produced showing even through A-1 that A-2 and A-3 were involved in supply of fake currency notes. On the contrary, as per the evidence of I.O. PW-9 Hetubha Govindsinh Zala Exh. 57, it was only during the interrogation and in the police statement of A-1, involvement of A-2 and A-3 was stated. It is hardly required to be stated that the said statement of A-1 in police custody, cannot be taken into evidence. In any case, no such statement came on record. Further, even if it is to be considered, it is a statement of co-accused, which also per-se, cannot be taken into consideration unless there is any independent evidence connecting the link produced by the prosecution for the guilt of A-2 and A-3. There is absolutely no evidence produced. It was not a case where the statement of A-1 was recorded under section 164 CrPC before the Magistrate and the evidence had come of A-
1. Further, in the evidence of A-1 as DW-1, there is not a whisper for involvement of A-2 and A-3. Therefore, it can be said that the reliance placed upon the police diary or the clue found during the investigation by the police, by the learned Sessions Judge was not at all warranted in law. Further, in any case, there was no independent evidence for involvement of A-2 and A-3 for commission of crime. Even as per the deposition of I.O. PW-9 Hetubha Govindsinh Zala Exh. 57, the raids were carried out at the residence of other accused, but it was not fruitful, and therefore, no evidence has come in this regard. In our considered view, the prosecution has not been able to produce any material evidence whatsoever for connecting the guilt of A-2 and A-3 with A-1 or involvement of A-2 and A-3 in putting fake currency notes in circulation as per the charged offence under section 489B of IPC. Under the circumstances, in absence of any evidence against A-2 and A-3, the conviction recorded by the learned Sessions Judge cannot be sustained in the eye of law and hence the same deserves to be quashed and set aside.
14. In view of the aforesaid observations and discussions, both these appeals are allowed. The impugned judgment and order dated 20.6.2009 passed by the learned Sessions Judge in Sessions Case No. 23/2008, so far as the conviction of A-2-Thakor Kalaji Ishaji appellant of Criminal Appeal No. 1503/2009 and A-3-Thakor Manaji Sukhaji appellant of Criminal Appeal No. 1164/2009 is quashed and set aside. Consequently, the sentence imposed upon A-2 and A-3 shall also stand set aside. A-2 and A-3 shall be put to liberty forthwith, unless their presence is required for any other lawful purpose. The amount of fine, if any, paid by A-2 and A-3, shall also be refunded.
15. It is also observed that the aspects of conviction and sentence imposed upon A-1 shall remain open in the event he challenges it before this Court and the present judgment shall be for conviction and sentence of A-2 and A-3 only.
16. Both the appeals are allowed to the aforesaid extent.
(JAYANT PATEL, J.) (PARESH UPADHYAY, J.) mandora/