Sukhdev Singh vs State of Punjab

M. Jeyapaul, J.—Accused Sukhdev Singh was convicted for the offence u/s 489-C of the Indian Penal Code (hereinafter to be referred to "IPC") and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 5000/- and in default of payment of fine to undergo further rigorous imprisonment for a period of six months He has challenged the judgment of conviction and the order of sentence dated 11.09.2001 passed by the learned Addl: Sessions Judge, Ludhiana.

In brief the facts of the case of the prosecution is that PW-3 SI Harjinder Singh, the then SHO of the Police Station City Jagraon received secret information when he was engaged in connection with patrol duty that the accused named above had been in possession of counterfeit of British Pounds sterling''s i,e, currency notes of United Kingdom and that he was making an attempt to pass off those currency notes as genuine while standing near the gate of Old Grain Market. On receipt of this information PW-3 SI Harjinder Singh proceeded towards Old Grain Market, Jagraon as indicated by his informer along with PW-1 HC Charanjit Singh and other police officials and found the accused sitting on a Scooter near the Gate of old Grain Market.

PW-3 Harjinder Singh having associated one independent witness namely Vijay Kumar conducted personal search of the accused and recovered the counterfeit of British Currency Notes from the left pocket of the shirt of the accused. There were totally 13 currency notes of the denomination of 20. Each of the five notes bore the same number. Immediately thereupon, he sent ruqa to the Police Station and on receipt of the same a formal first information report was registered against the accused.

After the recovery of the alleged currency notes, the recovered articles as well as the accused were produced before the SHO of the Police Station. The currency notes were deposited with the Malkhana and the accused was sent to the lock up.

The currency notes were sent for examination to the Reserve Bank of India but the request was turned down and thereafter the same were sent to British High Commissioner, Delhi by PW-4 MHC Davinder Singh through HC Gulzar Singh PW-2. The British High Commissioner, New Delhi vide his report Ex.PX opined that the currency notes sent for examination were fake currency notes. PW-3 after investigating the matter filed the final report against the accused.

The trial Court having analyzed the evidence on record, returned the findings that the accused committed the offence punishable u/s 489-C of the IPC.

PW-3 SI Harjinder Singh and PW-1 HC Charanjit Singh have testified that the police party based upon the secret information reached Old Grain Market, Jagraon. PW-3 made a search of the accused who was found sitting on a scooter, not only in the presence of PW-1 but also in the presence of independent witness Vijay Kumar and found the fake currency notes exhibits P-1 to P-13 in his possession. The British High Commissioner, New Delhi in his report Ex.PX has returned the finding that the currency notes recovered and received in the office of British High Commissioner for examination were fake in nature.

The learned counsel appearing for the appellant submitted that the only independent witness Vijay Kumar was not examined on the premise that he was won over by the accused and therefore he was given up by the prosecution. The non-examination of the independent witness creates a doubt in the case of the prosecution, it is submitted by the learned counsel for the appellant.

The learned Assistant Advocate General, Punjab appearing for the State submits that the independent witness could not be examined as he was won over by the accused.

In all fairness, the prosecuting agency should have examined the independent witness before the Court to test whether he in fact was won over by the accused. But the court cannot be oblivious of the situation where there is a marked decline in public participation in the matter of investigation being done by the police officials. As the courts insist upon association of independent witness, the police officials are forced to associate even the stock witnesses. The witnesses who are associated some how or other by the investigating agency turns hostile to the case of the prosecution for the reasons best known to such witnesses. The question that arises for consideration whether the case of the prosecution could be turned down just because the independent witness was not examined as he was won over or the prosecution agency did not associate any independent witness as there was non cooperation by the public in the matter of investigation. If the courts take a rigid stand that the case of the prosecution should be turned down just because an independent witness was not associated by the investigating agency, then the investigating agency will have to face an uphill task in carrying on the investigation. Ofcourse the investigating officer is bound to solicit the cooperation of public in the process of investigation.

The only independent witness Vijay Kumar was not examined by the prosecution on the ground that he was won over by the accused. There was no reason for the prosecuting agency to with-hold such a witness, if at all, he was not won over by the other side. In my considered view, the non-examination of the independent witness in such circumstances would not go to the root of the case of the prosecution.

The point to be considered is whether the prosecution could establish its case beyond reasonable doubt, despite the non-examination of an independent witness in the case. The prosecution even without the examination of the independent witness could prove that the accused in fact was found in possession of foreign currency notes as certified by the British High Commissioner in his report Ex.PX. When there are other materials available on record to fasten the accused with the crime committed, the non-examination of the independent witness, makes no difference and the conviction of the accused can be based on the other materials available on record.

Ofcourse PW-1 Charanjit Singh candidly admitted that the fake currency notes Exs. P1 to P13 recovered from the possession of the accused, were not sealed. The point is whether there was any scope for tampering with the case property recovered from the possession of the accused. If at all, PW-3 had any evil idea to fabricate a case against the accused, he would not have booked a case on the premise that the accused was found in possession of British fake currency notes instead he would have booked him for keeping in his possession fake Indian Currency Notes. Further, the recovery of fake British Currency Notes has been established by the prosecution by examining Pws 1 and 3. The evidence of PW4 MHC would establish that the fake currency notes Exs P1 to P13 were kept in the Malkhana after making necessary entries in the Malkhana Register. He took out those currency notes only for the purpose of depositing the same for comparison by the authorities concerned. I do not find that there was any scope for tampering with the currency notes recovered from the accused in this case. Therefore, failure on the part of the investigation in not sealing the currency notes recovered from the possession of the accused does not create a doubt in the mind of the Court.

It is further submitted by the learned counsel for the appellant that no record was produced before the trial court to establish that the Reserve Bank of India refused to analyze the currency notes allegedly recovered from the possession of the accused. Further no official from the office of British High Commissioner, New Delhi was examined to prove the report Ex.PX emanated from the British High Commissioner. Not only PW4 MHC Davinder Singh who dispatched the fake currency notes for comparison but also PW2 HC Gulzar Singh candidly testified to the effect that the currency notes exhibits P1 to P13 were taken out from the malkhana and entrusted to the British High Commissioner, New Delhi and the British High Commissioner in fact sent a report Ex.PX through PW-2 who handed over the same to PW3 SI Harjinder Singh, the investigating officer of the case.

The Reserve Bank of India is only concerned with the Indian currency notes. Ofcourse no record was produced to establish that the RBI refused to analyze the currency notes. I do not doubt the testimonies of Pws1,3 and 4 that the currency notes were in fact sent to the British High Commission at New Delhi only after the RBI refused to analyze the same.

Even otherwise, as already pointed out, the RBI is only concerned with the Indian Currency Notes. No wonder that the RBI which is not competent to analyze the British currency refused to analyse and give a report about the currency notes of British origin.

The materials available on the record would go to establish that the trial court in fact made a lot of efforts to summon one of the officials from the British High Commissioner to testify the report Ex.PX received from the British High Commission but unfortunately it appears that the British High Commissioner who in fact submitted his report Ex.PX to the effect that the currency notes P1 to P13 were fake in nature, was transferred from India. It has been established that the appearance of author of Ex.PX before the trial court, could not be secured for giving evidence as he has since been transferred from India. In such circumstance, there is nothing wrong in relying upon the report Ex.PX, which was submitted by the British High Commissioner in the discharge of his official duties.

The learned counsel for the appellant would submit that the British High Commissioner was not competent to compare the said currency notes, alleged to have been recovered from the possession of the accused. If not the British High Commissioner who else in India could authoritatively speak to the genuineness or otherwise of the currency notes recovered from the possession of the accused originated from British country. Even otherwise, the prosecution has been able to establish that the currency notes bearing the same numbers had been recovered from the possession of the accused. No expert evidence is required to confirm that the currency notes recovered were fake in nature.

The learned counsel for the appellant next contended that no customer was in fact sent to the accused to ascertain the intention of the accused to pass off the fake currency notes. The charge against the accused is not u/s 489-B IPC which contemplates punishment for putting in use the forged counterfeit currency notes as genuine. If the prosecution could establish the possession of fake currency notes coupled with the knowledge of the accused that it may be used as genuine, the accused can be convicted u/s 489-C of the Indian Penal Code.

In the instant case, the accused was found in a crowded market place sitting quietly on a scooter having in his possession fake currency notes. He was not in possession of one or two fake currency notes of the original of UK. He was in fact found to be in possession of 13 British Currency notes well within his knowledge that the same were fake.

Every police official has his own style of investigation of a case. Ofcourse, some other police official might have made an attempt to ascertain the intention of the accused by engaging a customer. But in the instant case the facts and circumstances noticed above would go to establish that the accused had in fact the knowledge that the currency notes which were recovered from his possession might be used as genuine.

It is submitted that there is no evidence on record to show as to how PW-3 could identify the accused in the absence of any informer by his side. The police officials come across so many varieties of criminals and criminal cases day in and day out. Sufficient clues have been given by the informer to him to identify the accused. PW-3 has spoken to the effect that he received the secret information that the accused was sitting on a scooter near the Old Grain Market. It would not have been a tough job for PW3 to zero in on the accused sitting on a scooter. Therefore, the identification of the accused in the crowded grain market by PW3 does not give any room for doubt.

There is a delay of about three months in dispatching the fake currency notes recovered from the possession of the accused by the investigating agency to the British High Commissioner for comparison. The evidence available on record would go to establish that the investigating officer had in fact taken a lot of efforts to send the notes for comparison to the RBI. Thereafter, it appears that PW3 had taken steps to dispatch the currency notes to the British High Commissioner, New Delhi for comparison. Even otherwise the investigating officer was in a fix as to whom the currency notes recovered from the possession of the accused should be sent for analysis. Therefore, the delay of three months in dispatching the currency notes for comparison does not go to the root of the case. In addition to that, it is found that the currency notes fake in nature recovered from the accused were kept in lock and key in the malkhana by the MHC of the Police Station. Therefore, there was no scope for tampering with the fake currency notes.

I find that the trial court has rightly convicted the accused u/s 489-C of the Indian Penal Code, having thoroughly evaluated the material on record in proper prospective.

Coming to the question of sentence, it is submitted by the learned counsel for the appellant that the accused who hails from a very poor back-ground, had faced the ordeal of trial for the past several yeaRs. There was no criminal case either prior to or subsequent to the registration of the present case. Referring to the penal provisions of Section 489-C of the Indian Penal Code, he submitted that the offence committed by the accused is not only bailable in nature but the trial court which punishes the accused thereunder is competent to sentence the accused with fine alone. I find that there is merit in the submission made by the learned counsel for the appellant. Therefore, substantial reduction in the sentence awarded by the trial court is warranted in this case.

In view of the above, the judgment of conviction passed by the learned Addl. Sessions Judge, Ludhiana against the accused u/s 489-C IPC is confirmed but the sentence of imprisonment of three years, is reduced to a period of six months rigorous imprisonment. The amount of fine imposed by the trial court is reduced to Rs. 1000/-. In default of payment of fine, he shall undergo a further period of one month rigorous imprisonment.

With the above modification in the sentence imposed by the trial court, the appeal is dismissed.

The accused-appellant is stated to be on bail. The bail bonds furnished by the appellant stands cancelled. He shall surrender before the trial court within 15 days from the date of this judgment, failing which the trial court shall issue non-bailable warrant against the accused and send him to jail to undergo the un-expired portion of the sentence.

Exhibits P1 to P13 which were produced during the course of hearing of this appeal, be returned on proper acknowledgment to the police station concerned.