2022 (2) TMI 1461 - HC - Indian Laws

Conviction of appellants for commission of offence punishable under Section 489B/489C of the Indian Penal Code - trafficking/circulating the counterfeit notes - evidence of selling, receiving or use of counterfeit notes established or not - Sentence to accused - HELD THAT - Section 489B of the Indian Penal Code inter alia makes any one of the following acts viz., selling, buying, receiving, using as genuine or otherwise trafficking in counterfeit currency notes culpable. When separate and distinct acts or illegal omissions independently constitutes a crime, it is incumbent on the Court to indicate which act or illegal omission the accused is charged of in the trial of the offence. In the present case, the accused has been charged merely of possession which by no stretch of imagination constitutes any of the aforesaid ingredients of Section 489B of the Indian Penal Code. Although the evidence on record may show that the accused persons were moving around in a public place with a large volume of FICNs, no charge of transportation/trafficking in currency notes was framed against them. They were never put on notice during trial that they were being accused of otherwise trafficking in counterfeit currency notes in addition to possession of such notes. Without re-framing the charge and giving the accused persons an opportunity to respond to it, to convict the accused persons on the score of trafficking of counterfeit notes clearly prejudiced them. Thus, it is opined that the conviction of the appellants for transportation/trafficking in counterfeit currency notes on the one hand while framing a charge for mere possession on the other hand has amounted to a mistrial and such failure of justice cannot be cured by reference to either Section 464 or Section 465 of the Code of Criminal Procedure. The conviction under Section 489C of the Indian Penal Code upheld and the conviction under Section 489B of the Indian Penal Code set aside. Sentencing to accused - HELD THAT - The trial court had imposed a sentence of rigorous imprisonment for ten years and to pay a fine of Rs. 20,000/- each, in default to suffer simple imprisonment for two years more for the offence punishable under Section 489B of the Indian Penal Code, while no sentence was awarded for the offence punishable under Section 489C of the Indian Penal Code on the plea that the said offence is included in Section 489B of the Indian Penal Code. Be that as it may, as the trial Court has imposed a higher sentence in respect of the graver offence of which the appellants are not guilty, imposition of a lesser sentence by this Court for the minor offence would not prejudice the appellants and no independent rule for imposition of sentence on the score of Section 489C of the Indian Penal Code is necessary. The sentence imposed upon the appellants is modifed and it is directed that they shall suffer rigorous imprisonment for seven years each and to pay a fine of Rs. 20,000/- each, in default to suffer simple imprisonment for two years more for the offence punishable under Section 489C of the Indian Penal Code. Appeal disposed off.

Summary

Issues Involved:
1. Conviction under Section 489B of the Indian Penal Code (IPC)
2. Conviction under Section 489C of the IPC
3. Sentencing for the offences

Issue-wise Detailed Analysis:

1. Conviction under Section 489B of the Indian Penal Code (IPC):
The appellants were convicted for offences under Sections 489B and 489C of the IPC. The prosecution alleged that on 19.09.2016, the police apprehended the appellants at Dhuliyan Ferry Ghat with a large volume of Fake Indian Currency Notes (FICNs) totaling Rs. 2,09,000/-. The appellants were charged with possession and attempting to circulate these counterfeit notes as genuine.

The defense argued that the ingredients of Section 489B IPC, which involves selling, receiving, or using counterfeit notes as genuine, were not proven. They contended that there was no evidence of the appellants selling, receiving, or using the counterfeit notes. Furthermore, the defense pointed out the lack of independent witnesses to the seizure and questioned the chain of custody of the counterfeit notes.

The Court noted that although the appellants were found with a large volume of counterfeit notes and were in conscious possession of them, the charge framed was only for possession, not for trafficking or transportation of the notes. The Court emphasized that for a conviction under Section 489B, it was necessary to prove acts like selling, buying, or trafficking, which were not part of the charges framed. The Court held that convicting the appellants for trafficking without framing the appropriate charge would prejudice them. Consequently, the Court set aside the conviction under Section 489B IPC, concluding that the trial court had failed to reframe the charges and provide the appellants an opportunity to respond to them.

2. Conviction under Section 489C of the IPC:
The Court upheld the conviction under Section 489C IPC, which pertains to possession of counterfeit notes knowing them to be fake. The evidence presented, including the testimonies of the police officers (P.Ws. 1, 2, 4, and 5) and the seizure list, was found to be clear, cogent, and convincing. The Court dismissed the defense's argument regarding the lack of independent witnesses, noting that the police had requested local people to participate in the search, but they refused. The Court also established the chain of custody for the seized notes, which were sent for examination and confirmed to be counterfeit.

3. Sentencing for the offences:
Initially, the trial court sentenced the appellants to ten years of rigorous imprisonment and a fine of Rs. 20,000/- each for the offence under Section 489B IPC, with no separate sentence for the offence under Section 489C IPC. Given the Court's decision to set aside the conviction under Section 489B IPC, the sentence was modified. The Court imposed a sentence of seven years of rigorous imprisonment and a fine of Rs. 20,000/- each for the offence under Section 489C IPC. The Court reasoned that imposing a lesser sentence for the minor offence would not prejudice the appellants since the higher sentence for the graver offence was set aside.

Conclusion:
The appeal was disposed of with the conviction under Section 489B IPC set aside and the conviction under Section 489C IPC upheld. The sentence was modified to seven years of rigorous imprisonment and a fine of Rs. 20,000/- each for the offence under Section 489C IPC. The period of detention already suffered by the appellants was to be set off from the substantive sentence. The judgment was to be sent to the trial court, and urgent certified copies were to be provided to the parties upon compliance with necessary formalities.