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HIGH COURT OF MADHYA PRADESH : JABALPUR (i)
Criminal Appeal No.162/2015 Shabbir Sheikh and others -VersusState of Madhya Pradesh
(ii)
Criminal Appeal No.452/2015 Bhikari Mukhiya -VersusState of Madhya Pradesh
(iii)
Criminal Appeal No.453/2015 Rajendra Shah and another -VersusState of Madhya Pradesh
---------------------------------------------------------------------------------CORAM : Hon'ble Shri Justice Hemant Gupta, Chief Justice. Hon’ble Shri Justice Vijay Kumar Shukla, Judge. ---------------------------------------------------------------------------Shri Ajay Jain, Advocate for the appellants. Shri Siddarth Datt, Advocate for appellant No.2 Abdul Rauf @ Hafiz Khan and appellant no.3 Ramnarayan Parmar in Cri.Appeal No.162/2015. Smt.Namrata Agrawal, Government Advocate for the State.
Whether approved for Yes reporting? Law laid down
Recovery of large number of counterfeit currency notes from an accused in public place are sufficient to establish the mens rea and knowledge or reasons to believe the same to be forged or counterfeit and intending to use the same as genuine. Thus, the
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case is not of mere dormant possession, but it is a case of active transportation of currency notes which would fall with the expression traffics in currency notes under Section 489-B of IPC. Significant paragraph Nos.
JUDGMENT (Jabalpur dt.:___.05.2018) Per : V.K. Shukla, J.All the appeals are arising out of the common order of conviction and sentence dated 07-01-2015, passed by 5th Additional Sessions Judge, Bhopal in S.T.No.260/2010, whereby the appellants have been convicted and sentenced as under : Criminal Appeal No.162/2015 Conviction
Sentence
Under Section 489-B of IPC.
Imprisonment for life and fine of Rs.1000/-, in default of payment of fine to suffer further R.I. for 6 months, each
Under Section 489-C of IPC
R.I. for 7 years and fine of Rs.500/-, in default of payment of fine to suffer further R.I. for 6 months, each.
Under Section 120-B of IPC
Imprisonment for life and fine of Rs.1000/-, in default of payment of fine to suffer further R.I. for 6 months, each (Substantive sentences to run concurrently)
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Criminal Appeal No.452/2015 Conviction
Sentence
Under Section 120-B Imprisonment for life of IPC. and fine of Rs.1000/-, in default of payment of fine to suffer further R.I. for 6 months.
Criminal Appeal No.453/2015 Conviction
Sentence
Under Section 489-B of IPC.
Imprisonment for life and fine of Rs.1000/-, in default of payment of fine to suffer further R.I. for 6 months, each
Under Section 489-C of IPC
R.I. for 7 years and fine of Rs.500/-, in default of payment of fine to suffer further R.I. for 6 months, each.
Under Section 120-B of IPC
Imprisonment for life and fine of Rs.1000/-, in default of payment of fine to suffer further R.I. for 6 months, each.
(Substantive sentence to run concurrently) 2.
The case of the prosecution is that the appellants
hatched
a
criminal
conspiracy
for
using
counterfeit
currency notes or bank notes and possessed forged or counterfeit currency notes or banknotes.
3.
The facts leading to the present appeals to the extent
that they are necessary are that on 22-01-2010, Shahid
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Ahmed (PW-15) Inspector, Special Task Force (STF) Bhopal received
secret
information
through
an
informer
on
telephone that near Sehore Bus-stand Booking Office, one black colour motor-cycle No.MP-04-BA/9802 was standing, by which two persons were going to Khardoun for exchanging counterfeit notes. On the basis of the said information, the said officer alongwith subordinate staff; Naresh Malivya, constable Kaleem Khan, Sunil Amolia, Ashok Yadav, Ramdarshan Dubey, Parmal Singh Bais and witnesses Asfar S/o Mohd. Yaseen and Bawi Shahwar S/o Sirin Khan alongwith investigation articles reached Sehore Bus-stand in Police vehicle Bolero Jeep No.MP-03-7318 and kept watch on the said motor-cycle. At about 12.30 hours, two persons as per the description disclosed by the informant, came from the side of shops at Bus-stand, the person having beard started the motorcycle and another person sat on the motorcycle as a pillion rider and reached village Khardoun via Mandi and Shyampur Kurawar. They were chased by the team watchfully and carefully.
4.
Thereafter, it is further alleged that at the crossing of
village Khardoun, one fat person was standing, seeing him both the persons stopped. On being seen by telescope by police party, it is alleged that after having discussion between the person standing at the crossing and the
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persons on motor-cycle, the person who was pillion rider of the motor-cycle took out some bundle of notes from his right shoe and showed to the person standing at the crossing, at that very time police party intercepted the three persons and took them under custody and on being interrogated, it is alleged that the person who took out the notes from his shoe disclosed his name as Rajendra Shah, S/o Motor Shah, who was having in his hand 100 notes of Rs.1000-1000 denomination.
On being searched made of
the said persons, it is alleged that 54 notes of Rs.1000-1000 denomination were taken out from his left shoe and as disclosed by accused Rajendra, beneath the seat of motorcycle 179 notes of Rs.500-500 denomination, which were not having written R.B.I. and having different paper, were recovered. Accused Rajendra Shah disclosed that he taken the said notes from Mukhtar, R/o Betia Behar. On the spot itself, the said notes were seized and sealed and accused Rajendra Shah was arrested as per due legal procedure in presence of the witnesses.
5.
It is further alleged that the person accompanied with
accused Rajendra Shah, on being interrogated, disclosed his name as Hafiz Rauf, S/o Abdul Gaffar, R/o Kalapeepal and the person standing at Khardoun crossing disclosed his name Shabbir, S/o Yaseen, R/o Khardoun. All the aforesaid
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three accused persons on being interrogated having the business of counterfeit notes, prior to taking them to police station Kalapeepal, oral information was given to family members of accused Shabbir to be taken and at the time when they were being taken by police vehicle to police station Kalapeepal, at 5.15 at village Bakayan, village people and family members of accused Shabbir stopped the police vehicle and committed MARPEET with them and took away accused Shabbir and Hafiz alongwith weapons and mobile and also took away alongwith them accused Rajendra Shah and seized notes, of which report was lodged by the police party at police station Kalapeepa. On the basis of which, offence vide Crime No.19/2010 under sections 353, 395 and 397 of IPC was registered. On being returned back
to
police
rojnamcha sanha
station
STF,
vide Ex.P-25
arrival
and
departure
and P-26 was registered
and against all the three accused persons, first information report vide Ex.P-28 for the said offence vide Crime No.01/2010, under section 489-B and 489-C of IPC was recorded at police station STF Bhopal.
6.
As stated Shabir Sheik and Rauf fled away after
scuffle between police personnel and family members of Shabbir. On 27-01-2010 Rajendra Shah stated under section 27 of the Evidence Act on memorandum
that he
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procured fake currency from Naresh and sold to Shabbir and Rauf. On 28-01-2010 Shabbir was arrested from Kala Peepal Railway Station and in his disclosure statement he stated that he purchased fake currency from Rajendra Shah and gave Rs.20,000/- to Rauf also. However, no discovery of fact was made pursuant to that. On 30-01-2010 on the discovery statement of Shabbir, fake currency was seized which was kept at almirah and also the fact was disclosed that Naresh stayed at Bharat Lodge. One currency note of Rs.1000/-
recovered from almirah of Sheik Shabbir was
seized vide Ex.P-15. The said currency note seized from Shabbir was found counterfeit in the report by the Reserve Bank of India, which is marked as Ex.P-32. On the same day Naresh was arrested from Sehore Bus Stand on identification by Shabbir. Rs.8000/- were seized from Naresh on personal search.
The details were 1000x1,
100x40 and 500x4 in which RBI was not written. In the same manner in 1000x1 note, RBI was not written. As per report of RBI, this currency was also found to be counterfeit. The prosecution further produced the Visitor Register of Bharat Lodge (Articles A to C) on memorandum of Shabbir in which there was an entry in respect of stay of Naresh on 27-01-2010. The seizure of the said document was proved by two witnesses PW-7 Mohd. Jameel (Manager
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of Bharat Lodge and PW-10 Farook Ansari (Owner of Bharat Lodge).On 08-03-2010, Rauf who had absconded from the police custody was arrested at Railway Station, Bhopal on tip by an informer. He was accompanied by Ramnarayan. Total amount of Rs. 2050/- was seized from Rauf on personal search. The details are 1000x1, 500x1, 100x5 and 50x1. Rs.1700/- was seized from Ramnarayan on personal search. The details are 500x2, 100x5 and 50x4. The seizure was proved by seizure witnesses PW-2 Vijay Yadav and PW-3 Sunil Mishra. As per the prosecution, Rauf deposited Rs.25,000/- on
25-11-2009 in the account of
Bhikari Mukhiya held at Bank in Bihar. Ramnarayan had deposited Rs.25,000/- on 12-12-2009 in the account of Kamruddin held at Bank in Bihar. The deposit slips were seized from the branch of State Bank of India, Sehore, which were also proved by PW-4 Bharat Dalas, Branch Manager of the said bank. Vide Ex.P-66 hand writing on the deposit slips were got examined by the expert who opined that hand writing in deposit slip (Q1) matched with specimen signature of
Ramnarayan. The hand writing
expert was examined as PW-22 Rajendra Verma and the hand writing expert report is Ex.P-66. Another deposit slip (Q4) was also matched with the specimen signature of Rauf and the hand writing expert report is Ex.P-66A proved by
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handing
writing
expert
PW-22
Rajendra
Verma.
The
prosecution has produced the report of Press note Dewas to prove the currency seized from these persons found to be counterfeit currency. The report of Press note Dewas
is
Ex.P-52 and the details of the counterfeit currency are 2,43,500 from Rajendra Shah (Article 9 and 10), 1650 from Rauf
(Article 11), 1000 from Shabbir (Article 12), 1400
from Ramnarayan (Article 13) and 3000 from Naresh (Article 14). The report of the Press note Dewas
is
admissible under Section 293 of Cr.P.C.
7.
Apart from this evidence, the prosecution has also
proved the call details of the accused persons. Mobile No.8002046413 was used by Rajendra Shah was in the name of Sanjay Prasad. He had twice talk with Mobile No.9826432779 belonging to Rauf. Again on 22-01-2010 he had talk on Mobile No.9977611910 used by Shabbir. From the call details, it was also found that on 22-01-2010 he had talk on Mobile No.9973205257 used by Naresh. Call details were filed vide Ex.P-49-A. In the same manner Mobile No.9973205257 was used by Naresh held in the name of Sunil Kumar. On 22-01-2010 he talked with Rauf, Ramnarayan and Rajendra. Calls were made from the state of Bihar.. The call details are
Ex.P-47-A.
Other accused
Shabbir used Mobile No. 9977611910, which was in the
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name of Dinesh. He also talked with Rauf, Naresh and Rajendra.Call details are Ex.P-44-A. Mobile No.9826432779 belongs to Rauf. 8.
On appreciation of the facts and evidence, the
trail
court convicted the accused persons as mentioned in the preceding paragraphs. One accused person Hasmat was acquitted whereas one accused person Kamruddin Miya S/o Ismile Miya remained absconded. 9.
The contention of the learned counsel for the
appellants is that the prosecution could not prove the case under Section 489-B of IPC regarding use of forged or counterfeits notes or banknotes and the possession of the forged or counterfeit notes or banknotes is offence under Section 489-C of IPC, for which the appellants have already undergone the sentence of 7 years. It is submitted by the learned counsel for the appellants that the prosecution at the most could prove only possession of the counterfeit currency but could not prove that the appellants had any intention to use the said money having knowledge of it being forged. It is also
submitted
that the
prosecution
has failed to prove the mens rea. Learned counsel for the appellants referred the judgment passed by the Apex Court in the case of Uma Shankar Vs. State of Chhattishgarh
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(2001)9 SCC 642, to submit that Mens rea i.e. (" knowing or having
reason to believe
the same to be
forged or
counterfeit") which are the essential ingredients to constitute the offence under Sections 489-B and 489-C have to be proved by the prosecution. A reference has also been made to the judgment passed
in the case of M.Mammutti Vs.
State of Karnataka (1979)4 SCC 723 in support of their arguments that a mere recovery of currency notes from them would itself not be sufficient to prove the offence where the prosecution has not shown that the appellants had knowledge or reason
to believe that the notes were
counterfeit and therefore, the conviction in the case of M.Mammutti (supra) was set aside. Learned counsel for the appellants also referred the judgment passed in the case of Panna Lal Gupta Vs. State of Sikkim decided on Sept. 02, 2009 (unreported judgment). 10.
Per contra, learned counsel for the State submitted
that the prosecution has proved its case beyond any doubt. It is submitted that in the present case the seizure of the counterfeit notes and the conduct of the accused persons of absconding from the police custody
after scuffle and
thereafter again arrested on the information coupled with the seizure of fake currency, bank deposits and call details have established prosecution case beyond any doubt.
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11. Before we proceed to discuss the evidence of the present case, it is apposite to refer the provisions of Section 489-B and 489-C. The provisions of Section 489-A to 489-C deal with various economic offences in respect of forged or counterfeit currency notes or banknotes. The object of the legislature in
enacting these provisions is not only to
protect the economy of the country but also to provide adequate protection to currency notes and banknotes. The currency notes are, in spite of growing accustomedness to the credit card system, still the backbone of the commercial transactions
by
the
multitudes
in
our
provisions of Sections 489-B and 489-C
country.The
are quoted as
under : "489B.
Using
as
genuine,
forged
or
counterfeit currency-notes or bank-notes.— Whoever sells to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currencynote or bank-note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
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"489C.
Possession of forged or counterfeit
currency-notes or bank-notes.— Whoever has in his possession any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. An ordinary reading of both the above quoted sections would go to show that to constitute an offence under Section
489B,
following
essential
ingredients
are
necessary:(i)
The note in question is a currency note or a bank note;
(ii)
It was forged or counterfeited;
(iii)
The accused sold to, or bought from, or received it
from any person; (iv)
That the accused knew or had reason to believe it to be
forged or counterfeited. Similarly, the ingredients which are required to constitute an offence under Section 489C are as follows: (i)
The note in question is a currency note or bank note;
(ii)
Such note was forged or counterfeited;
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(iii)
The accused was in possession of the currency note or
bank note; (iv)
The accused intended to use the same as genuine;
(v)
the accused knew or had reason to believe the note to
be forged. 12. On behalf of the appellants their conviction and sentence under Section 489-B IPC has been challenged on the ground that mere possession would not be enough to convict them under Section 489-B IPC. On behalf of the appellants in support of this argument following cases have been referred :(i)
K.
Hasim
Vs.
State of
Tamil Nadu
[2005(1)
Supreme Court Cases 237]. In paras 48 and 49 of the report difference between the ingredients constituting offence punishable under Section 489-B & 489-C IPC have been enumerated. We can refer these two paras gainfully for our consideration, they read as under: "48.Similarly Section 489-B relates to using as genuine
forged
or
counterfeited
currency
notes or bank notes. The object of Legislature in enacting
this section
is to
stop the
circulation of forged notes by punishing all persons who knowing or having reason to believe the same to be forged do any act which
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could lead to their circulation. 49.Section 489C deals with possession of forged or counterfeit currency notes or bank notes. It makes possession of forged and counterfeited currency notes or bank notes punishable." (ii)
Umashanker Vs. State of Chhattisgarh [2001 (9)
Supreme Court Cases 642]. In support of his argument learned counsel for the appellants has placed reliance on para 7 of the report, which reads as under: "7. Sections 489-A to 489-E deal with various economic offences in respect of forged or counterfeit currency-note or bank-notes. The object
of
Legislature
in
enacting
these
provisions is not only to protect the economy of the country but also to provide adequate protection to currency-notes and bank-notes. The currency-notes are, in spite of growing accustomedness to the credit cards system, still
the
backbone
of
the
commercial
transactions by multitudes in our country. But these provisions are not meant to punish unwary possessors or users."
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(iii)
M. Mammutti Vs. State of Karnataka [1979 (4)
Supreme Court Cases 723]. This case has been referred in support of the argument that the appellants were not specifically asked about their knowledge whether recovered currency notes were fake or not. 13. In support of his argument, learned Government Advocate has referred the provisions contained in Sections 106 and 114(h) of the Evidence Act. Before proceeding further we would like to reproduce the provisions contained in Sections 106 and 114(h) of the Evidence Act, they read as under: Section 106 - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Section 114. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The illustration(h) reads as under:
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"(h) That, if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be un-favourable to him. As to illustration (h) -
A
man
refuses
to
answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;"
14. To elaborate the thrust of the argument advanced by the learned `Government Advocate is that it was for the appellants to explain how they come in possession of counterfeit currency notes and they had no knowledge that those are counterfeit notes.
15. The case law referred by the learned counsel for the appellants is of no help to the appellants because here the question is whether conviction of the appellants in addition to Section 489-C IPC in Section 489-B IPC is legal or not ? None of the cases referred by him throws any light on this point as against that we find that the evidence of recovery of counterfeit currency notes from the appellants is relevant
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and admissible in this reference also. Simple discovery of counterfeit notes from the appellants does not stand proved from the evidence of recovery but also their knowledge and their state of mind that is knowledge about fake currency is also established from that evidence. On this point our view stand fortified by the explanation given by the Apex Court in the case of State of Maharashtra Vs. Damu Gopi Nath Shinde and others [AIR 2000 SC 1691] wherein Apex Court has observed as under: "36. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used
as
evidence
by
restricting
the
admissible portion to the minimum. It is now
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well settled that recovery of an object is not discovery of a fact as envisaged in the section. The decision of the Privy Council in Pulukuri Kottaya v. Emperor AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the "fact discovered"
envisaged
in
the
section
embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. 37. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted
should
be
consistent
with
understandability. In this case, the fact discovered by PW 44 is that A-3 Mukinda Thorat had carried the dead body of Dipak to the spot on the motorcycle.
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38. How did the particular information led to the discovery of the fact? No doubt, recovery of dead body of Dipak from the same canal was antecedent to the information which PW 44 obtained. If nothing more was recovered pursuant to and subsequent to obtaining the information from the accused, there would not have been any discovery of any fact at all. But when the broken glass piece was recovered from that spot and that piece was found to be part of the tail lamp of the motorcycle of A-2 Guruji, it can safely be held that the Investigating Officer discovered the fact that A-2 Guruji had carried the dead body on that particular motorcycle up to the spot. 39.In view of the said discovery of the fact, we are inclined to hold that the information supplied by A-2 Guruji that the dead body of Dipak was carried on the motorcycle up to the particular spot is admissible in evidence. That
information,
therefore,
proves
the
prosecution case to the abovementioned extent."
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16. After dealing with this whether the appellants had possessed the necessary mens rea, the second aspect is whether recovery of large number of counterfeit currency notes are sufficient to establish that their possession amounts to an offence punishable under Section 489-B IPC. This section prohibits use of or trafficking with the counterfeit currency notes. Since the appellants had preferred to plead total denial, they had not cared to explain as to why such currency notes were in their possession though according to provisions contained in Section 106 of the Evidence Act the burden was on them to explain it. Their failure to do so raises an adverse inference against them and for such inference we conclude that their possession was not mere conscious possession, they meant either to use the counterfeit currency notes or transport them. In the case of Rayab Jusab Sama Vs. State of Gujarat [1999 Cri. L. J. 942] the Division Bench of Gujarat High Court has held the possession of large number of fake currency notes to be a case of active transportation of such notes. The observation made by the Division Bench in that case also substantiates the view formed by us. Para-10 of the report reads as under: 10. The learned counsel for the appellant contended that the prosecution had failed to
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prove the offence under S. 489-B of the Indian Penal Code even if it is held that the offence of possession the fake currency notes under S.489-C is proved. This submission is wholly
erroneous
because
the
evidence
clearly establishes that the appellant was found carrying 250 fake currency notes on a public road in the city of Bhuj concealed in a Thela beneath cloth pieces as alleged in the charge. He was, therefore, transporting the said currency notes at the time when he was apprehended with them. Therefore, this is not a case of mere dormant possession, but, it is a case of active transportation of the currency notes, which would fall within the expression
'traffics
in
such
currency
notes.' Section 489-B of the Indian Penal Code clearly contemplates the cases where the counterfeit currency notes are received from any other person as also the cases where a person traffics in such currency notes knowing or having reason to believe the same to be forged or counterfeit. In our opinion, these ingredients of the offence
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under
S.489-B
are
clearly
established
against the appellant. He was not only carrying 250 counterfeit currency notes on 9.4.1996 but he had concealed 101 other such counterfeit currency notes which he later discovered before the Panchas on 12.4.1996. It is, therefore, clearly established that the appellant was trafficking in these counterfeit currency notes which he had received from some source. The appellant is, therefore, rightly held guilty of the offences under Ss. 489-B and 489-C of the Indian Penal Code by the trial Court and we are in complete
agreement
with
the
reasoning
adopted by the trial Court for reaching its conclusions on this count. We are not concerned in this appeal, as noted above, with the offences under the Passport Act for which the accused was acquitted."
17. The following facts arrayed in sequence of events are sufficient to prove the case i.e. the raid by the special police team comprising two independent eye witnesses
PW-1
Mohd. Afsar and Pw-8 Bobbi Shahwar coupled with the
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seizure of the counterfeit currency which has been later confirmed by the report of the Reserve Bank of India, the conduct of the accused persons and their family members and their supporters which led fleeing away of two accused persons
Shabbir and Rauf
from the police custody and
thereafter the various seizures on the memorandum under Section 27 of the Evidence Act, the arrest of the accused persons and thereafter seizures from them of the fake currency on their disclosure statements and again proved to be currency notes, the information regarding the stay of one of the accused Naresh, later on proved by the prosecution by production of the register of Bharat Lodge proved by PW-7 Mohd. Jameel (Manager of Bharat Lodge and PW-10
Farook Ansari (Owner of the Bharat Lodge).
Two accused persons, two had absconded from the police custody
were later arrested
by the police
and the fake
currency was seized from their possession. The accused persons deposited the amount in the account of Bhikhari Mukhiya. Their deposits were proved by the prosecution witnesses PW-4
Bharat Dalal , Branch Manager, SBI,
Sehore and their hand writing has been proved by PW-22 Rajendra Verma. The aforesaid facts further can be crystallized in the following way: (i)
Rajendra
Shah
was
hiding
counterfeit
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currency
notes
in
shoes
which
shows
his
knowledge that notes were counterfeit. He was accompanied notes were
by Rauf on motorcycle. The said shown to
Shabbir after taking out
from shoes, from which intention of three accused persons to transact in the same and knowledge that the same were counterfeit can be inferred. Direct evidence in respect of these accused persons i.e. PW-1 Mohd. Afsar, PW-8 Bobbi Shahwar and PW-15 Shahid Ahmad.
(ii)
Rauf and Shabbir absconded from police
custody which
shows their mens rea and is a
relevant fact under Section 8 of Evidence Act.
(iii) Seizure of Visitor Register from Bharat Lodge depicting
stay
statement
of
of
Naresh
Shabbir
on
and
the
disclosure
possession
of
counterfeit currency by Naresh connects him to conspiracy. (iv)
Ramnarayn was arrested with counterfeit
currency
notes
in
the
connecting him to racked.
company
of
Rauf
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(v)
Bhikari
Mukhiya
is
having
criminal
antecedent as one more case of counterfeit currency was registered against him at PS Sigoli, District Motihari, Bihar. Rs. 25,000/- was deposited in his account by Rauf as is evident handwriting
expert PW-22
from the report of connecting him to
the conspiracy. Rs. 10-11 lakhs deposited in his account in a short span of time ad no explanation offered by him in respect of the same. 18.
In view of the aforesaid facts and as per the provision
of Section 106 of the Evidence Act, burden of proof of facts especially within the knowledge of any person is upon that person. In the present case no explanation has been offered by the accused persons under Section 313 of CrPC as to how they were in possession of counterfeit currency or in respect of phone calls inspite of categorical questions put to them under Section 313. No defence has been putforth by the accused persons that notes were received in usual course of business. 19.
The judgments relied by the learned counsel for the
appellants are distinguishable in the facts of the present
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case as in those cases, the prosecution has not proved mens rea
on the part of the accused persons and no
question under Section 313 CrPC was put to the accused persons about currency notes being fake or counterfeit. In the present case, there was specific question
put to the
accused persons under Section 313 of CrPC. 20. Learned counsel for the appellants also relied on the judgment passed by the Apex Court in the case of Anvar P.V. Vs. P.K. Basheer, 2014(10) SCC 473 regarding prove of the phone calls under Section 65-B of the Indian Evidence Act. The aforesaid law has been subsequently
has been
diluted by the Apex Court in the case of
Shafhi Mohammad Vs. State of Himachal Pradesh (Special Leave Petition (CRL.)No.2302/2017, decided on 30-01-2018. The Apex Court regarding the
clarified the legal position
admissibility of the electronic evidence in
para-12, which is quoted as under : "12. Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being
procedural can be relaxed by
court wherever interest of justice so justifies."
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21. In view of the aforesaid, we do not find any merit in these
appeals and
the order of conviction and sentence
does not warrant any interference. Hence all the appeal are dismissed.
(HEMANT GUPTA) CHIEF JUSTICE hsp. Digitally signed by HARSAHAI PATERIYA Date: 2018.05.10 14:31:51 +05'30'
(VIJAY KUMAR SHUKLA) JUDGE
