2020 (1) TMI 1695 - HC - Indian Laws

Conviction and sentence of the appellant for commission of offence punishable u/s 489B and 489C of the Indian Penal Code - possession of 400 pieces of FICNs - discrepancies in evidence and witness credibility - evidence of official witnesses have not been supported by the independent witnesses - HELD THAT - There is no evidence that the appellants had sold, received or used any counterfeit notes. However, it has been argued on behalf of the prosecution that the appellant was otherwise trafficking in counterfeit notes by knowingly transporting a large volume of forged currency notes in a bag through a public road and had reached the ferry ghat when they were apprehended. Hence, he had committed the offence under section 489B of the Indian Penal Code. The appellant had not been called to answer a charge of otherwise trafficking in fake currency notes by transporting such notes through a public thoroughfare for commercial use. To convict the appellant on such score at the appellate stage without reframing the charge would cause prejudice to them and occasion failure of justice. In this factual backdrop, it is constrained to hold that the appellant is entitled to an order of acquittal under section 489B of the IPC in the present case. Whether the examination of the appellant under section 313 Cr.P.C. is not in consonance with the law? - HELD THAT - Although the questions posed to the appellant may have been framed in a more elegant manner, impact of such questions and the intelligent answers given by the appellant to them, does not give an impression that the appellant failed to understand the meaning and purport of those questions and had suffered any prejudice in that regard - Reliance has been placed on Mongat Ram Singh Anr. Vs. State of West Bengal, 2004 (10) TMI 643 - CALCUTTA HIGH COURT . In the cited decision, this court held that questions posed to the appellant were of such nature that it had caused prejudice to the appellant. In fact, the prosecution also admitted to such fact - In the present scenario the aforesaid ratio is clearly distinguishable. The conviction and sentence of the appellant under section 489C of the Indian Penal Code is upheld - the conviction and sentence of the appellant for the offence punishable under section 489B IPC is set aside - appeal allowed in part.

Summary

Issues Involved:
1. Conviction under Section 489B IPC.
2. Conviction under Section 489C IPC.
3. Discrepancies in evidence and witness credibility.
4. Examination under Section 313 Cr.P.C.
5. Sentencing and applicability of Section 428 Cr.P.C.

Issue-wise Detailed Analysis:

1. Conviction under Section 489B IPC:
The appellant was initially convicted under Section 489B IPC, which pertains to using as genuine, forged or counterfeit currency notes. The prosecution argued that the appellant was "otherwise trafficking in" counterfeit notes by transporting a large volume of forged currency notes through a public place, thus fulfilling the criteria of Section 489B IPC. However, the court noted that the charge framed did not include transportation of fake currency notes. The court cited the Supreme Court's interpretation in K. Hasim Vs. State of Tamil Nadu, emphasizing that "otherwise traffics in" includes any act leading to the circulation of counterfeit notes. Despite this, the court concluded that convicting the appellant under Section 489B IPC without reframing the charge would cause prejudice and result in a failure of justice. Consequently, the appellant was acquitted of the charge under Section 489B IPC.

2. Conviction under Section 489C IPC:
The appellant was also convicted under Section 489C IPC for possessing counterfeit currency notes. The court upheld this conviction based on the consistent evidence from the raiding party (PW 1 to PW 5) and the expert opinion confirming the notes were fake. The court found no doubt that the appellant was in possession of 400 pieces of counterfeit currency notes of Rs. 1,000 each, amounting to Rs. 4,00,000. The court dismissed the discrepancies in the evidence regarding the number of notes seized from the co-accused as minor and not affecting the overall truthfulness of the prosecution's case.

3. Discrepancies in Evidence and Witness Credibility:
The defense argued that the evidence from official witnesses was not supported by independent witnesses (PW 6 and 7), who were declared hostile and claimed they signed the seizure list at the police station. The court noted that hostile witnesses' evidence should be examined against other evidence on record. The court found that PW 6 and 7 had been discredited during cross-examination and were likely won over during the trial. The court gave little credence to their deposition and relied on the consistent evidence from the official witnesses and the expert opinion to uphold the prosecution's case.

4. Examination under Section 313 Cr.P.C.:
The defense contended that the appellant's examination under Section 313 Cr.P.C. was not conducted according to law, referencing Mongat Ram Singh & Anr. Vs. State of West Bengal. The court reviewed the examination and concluded that, despite the questions not being elegantly framed, the appellant understood their meaning and did not suffer any prejudice. The court distinguished this case from the cited decision, where the prosecution admitted to the prejudice caused by the examination.

5. Sentencing and Applicability of Section 428 Cr.P.C.:
The court upheld the appellant's sentence under Section 489C IPC but set aside the sentence under Section 489B IPC. The court ordered that the period of detention suffered by the appellant during investigation, enquiry, and trial should be set off from the substantive sentence imposed, in accordance with Section 428 Cr.P.C. The court directed that a copy of the judgment along with the Lower Court Records be sent to the trial court for necessary compliance.

Conclusion:
The appeal was partly allowed. The conviction and sentence under Section 489C IPC were upheld, while the conviction and sentence under Section 489B IPC were set aside. The court ensured that the appellant's detention period would be accounted for in the final sentence.