counterfeit foreign currency case judgement-ahmedabad court
TRANSCRIPT
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Exh.
IN THE COURT OF SPECIAL CBI JUDGE COURT NO.5 AT
MIRZAPUR, AHMEDABAD.
Special Case No.4 of 2005
Central Bureau of Investigation, Gandhinagar.
.....Complainant
VERSUS
(1) Umar Haji Abu Bera
(2) Usman Haji Abdul Karim Shivani (Case Abated)
(3) Ahmed Haji Anwar Sunka (Trial Separated)
.........Accused
Appearances:
1) Shri A.A. Shaikh, Learned Public Prosecutor for
the CBI.
2) Shri H.R. Palejiya, Learned Advocate for the
accused no.1.
JUDGMENT
Case of prosecution:
1. The case of prosecution as unfolded before
this Court is that the complaint was lodged by Shri
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A. Kartikeyan, Accounts Officer, Reserve Bank of
India, Ahmedabad on 04.05.1989 with the
Superintendent of Police, Ahmedabad Branch. It is
alleged in the complaint that the RBI received 170
notes of U.K. Pounds in the denomination of 50
pounds each from the Custom Collectorate, Ahmedabad
which were found to be fake as advised by the State
Bank of India, Ahmedabad Branch. It is also alleged
that the said fake currency notes were recovered
from accused Umar Haji Abu Bera, Usman Haji Abdul
Karim Shivani and Ahmed Haji Anwar Sunka during the
raid of custom staff at Porbandar, Gujarat on
18/19.05.1985. It is revealed in the investigation
that all these three accused persons entered into a
criminal conspiracy at Porbandar during April'85 to
May'85 for possessing and trafficking the fake
foreign currency as genuine in that area. In
pursuance of the said conspiracy, accused Ahmed Haji
Anwar Sunka brought the fake currency notes of
British pound to Porbandar where he transferred the
said currency by selling it to accused Umar Haji Abu
Bera and accused Usman Haji Abdul Karim Shivani and
also kept some of the currency notes in the house of
Usman Haji Abdul Karim Shivani from where accused
Ahmed Sunka used to traffic and sell the counterfeit
currency notes of British pound in the market. On
18.05.1985 an information was received by the Custom
Inspector in the office of Assistant Collector,
Customs, Porbandar that Umar Haji Abu Bera is
selling British pounds in the open market and had
received these notes from accused Ahmed Haji Anwar
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Sunka of Madurai who was staying with his maternal
grandfather Usman Haji Abdul Karim Shivani at
Village Ranavav near Porbandar. On the same day i.e.
on 18.05.1985, a raid was conducted and accused Umar
Haji Abu Bera was found in possession of 10 U.K.
Pounds in the denomination of pound 50 each which
were seized by the Custom staff and accused Umar
Haji Abu Bera was nabbed near Sudama Chowk,
Porbandar. On the night of 18/19.05.1985 a raid was
also conducted at the house of accused Usman Haji
Abdul Karim Shivani and 152 currency notes in the
denomination of pound 50 each bearing the same
serial numbers which were recovered from Umar Haji
Abu Bera, were recovered from the cellar of the
house. In the statement recorded under Section 108
of the Customs Act, accused Ahmed Haji Anwar Sunka
accepted to have brought these notes from Madurai
for disposing off the same at Porbandar and
disclosed that out 170 such notes, he had given 18
notes to Umar Haji Abu Bera. As 10 such notes were
recovered from Umar Haji Abu Bera, his house was
raided on 19.05.1985 and eight more notes of pound
50 each having the same serial number identical to
the earlier two recoveries, were recovered and a
formal opinion was obtained from the local State
Bank of India Branch and the said notes were advised
to be fake. The said notes were sent to the Public
Accounts Department, Reserve Bank of India vide
letter dated 14.09.1988 alongwith other foreign
currency notes for realization and the Reserve Bank
of India, in turn, sent the said notes to the
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Foreign Exchange Cell, State Bank of India, Main
Branch, Ahmedabad on 19.09.1988 for realization. The
State Bank of India did not accept these 170 U.K.
currency notes of pound 50 each, as the same were
found to be fake and therefore, the same were
returned to the Public Accounts Department of
Reserve Bank of India on the same day. During the
course of investigation, the said notes were sent to
the Issuing Office, Bank of England, London through
Interpol and Manager Shri David Hobden of the
Issuing Office, Bank of England, London opined that
the said notes were fake and this opinion was
received through Shri Peter Corgon, U.K., DLO, New
Delhi vide Reference OL-42 dated 05.10.1990. During
the course of investigation, the panchnamas, search
warrants, statement recorded under Section 108 of
the Customs Act, telex message of Customs and Custom
Collectorate record, file of Reserve Bank of India
and State Bank of India were seized and the
chargesheet has been filed before the competent
Court for taking cognizance and for trying the
offence punishable under Section 120-B read with
Section 489-B and 489-C of the Indian Penal Code.
2. The Additional Sessions Judge, Fast Track
Court No.5, Ahmedabad (Rural) framed the charges
against accused no.1 Umar Haji Abu Bera and accused
no.2 Usman Haji Abdul Karim Shivani vide Exh.50 in
Sessions Case No.51/1995. As accused no.3 Ahmed Haji
Anwar Sunka was absconding, the trial against him
had been separated vide order dated 07.07.2001
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passed below Exh.33 in the said sessions case.
Whereas, due to death of accused no.2 Usman Haji
Abdul Karim Shivani, the case against him has been
abated vide order dated 24.04.2006 passed below
Exh.139 by the Special CBI Court No.4 in Special
Case No.4/2005 which is renumbered due to creation
of Special Court for trying the offence investigated
by the CBI.
Oral and Documentary Evidence:
3. As the accused no.1 denied all the
incriminating evidence, in order to bring home the
charge, the prosecution has led the following oral
and documentary evidence in presence of the accused
no.1.
Oral Evidence:
Sr.
No.
PW
No.
Name of the
witness
Status of the witness Exh. No.
1. PW-1 Harichand Nanalal
Chokhawala
Cashier, Reserve Bank
of India, Ahmedabad.
Exh.65.
2. PW-2 Devendrakumar
Dalabhai Gohil
Cashier, Reserve Bank
of India, Ahmedabad.
Exh.67.
3. PW-3 Kartikeyan A.N. Accounts Officer,
Reserve Bank of India,
Ahmedabad.
Exh.71.
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4. PW-4 Girishbhai
Sunderbhai Macwan
Superintendent, Godown
Branch, Custom
Department.
Exh.79.
5. PW-5 Ibrahimkhan
Mohmedkhan Pathan
Panch witness to the
panchnama of search
carried out at
residential premises of
accused Umar Haji Abu
Bera.
Exh.82.
6. PW-6 Basirkhan
Hussainkhan
Pathan
Panch witness to the
panchnama of search
carried out at
residential premises of
accused Umar Haji Abu
Bera.
Exh.84.
7. PW-7 Jalendu Milaprai
Chhaya
Panch witness. Exh.85.
8. PW-8 Chandrakant
Manmohandas
Parekh
Panch witness. Exh.87.
9. PW-9 Satishbhai
Jayantilal Bhatt
Deputy Manager, Foreign
Exchange Cell, State
Bank of India.
Exh.89.
10. PW-10 Pravinchandra
Kakubhai
Karvadara
Panch witness to the
panchnama of seizure of
ten currency notes of
U.K. Pound from accused
Umar Haji Abu Bera.
Exh.91.
11. PW-11 Rajendrakumar
Shantilal
Raithatha
Custom Inspector,
Custom and Excise
Department, Porbandar.
Exh.93.
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12. PW-12 Moreshvar Govind
Joshi
In-charge Custom
Superintendent, Custom
and Excise Department,
Porbandar.
Exh.99.
13. PW-13 Brijeshkumar
Prembahadur Varma
Custom Inspector,
Custom and Excise
Department, Porbandar.
Exh.101.
14. PW-14 Harishbhai
Valjibhai
Patansha
Witness running the
rationing grain shop at
Memonvad, Porbandar.
Exh.103.
15. PW-15 Mohmedshafi
Gulammemon Bera
Resident of Memonvad,
Porbandar.
Exh.104.
16. PW-16 Rajendrasingh
Ramswarupsingh
Panvar
Addl. Superintendent of
Police, CBI Interpol
Branch, New Delhi.
Exh.114.
17. PW-17 Chhatrasinh
SurajmalsinhVaghela
Head Clerk, Special
Branch, CBI, Ahmedabad.
Exh.132.
18. PW-18 Rupmina Tarangesh
Desai
Assistant Manager,
Reserve Bank of India,
Ahmedabad.
Exh.144.
19. PW-19 Balkishan
Harfulsingh
Sharma
ASI, CBI-SIU-IV, New
Delhi.
Exh.147.
20. PW-20 Hemshankar
Keshavji Vyas
Inspector, Customs
Department, Porbandar.
Exh.153.
21. PW-21 Nattharam Kalaram
Macwan
Head Police Constable,
CBI, Ahmedabad.
Exh.160
22. PW-22 Gangaram Shivaji
Shinde
Inspector, ACB
Department, CBI,
Mumbai.
Exh.161.
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23. PW-23 Ram Murti
Rachnaram
Inspector, CBI-SIU(XI) Exh.170.
24. PW-24 Vadakkan MannoorSanku Soman
Sub Inspector, CBI-SIU(XI).
Exh.175.
Documentary Evidence:
Sr.
No.
Exh. No. Description of the document
1. Exh.66 Letter No.PAD(AH) No.1283/7.B/88-89
dated 16.09.1988 addressed to the
Manager, State Bank of India by the
Manager, Reserve Bank of India, Public
Accounts Department, Ahmedabad for
sale of confiscated foreign currency
notes. (two sheets)
2. Exh.68 Original complaint of Account Officer,
Reserve Bank of India, Ahmedabad,
dated 04.05.1989.
3. Exh.69 Original receipt of S.D. Pandya dated
04.05.1989.
4. Exh.72 Letter No.VIII/25-1/CG/86 dated
14.09.1988 addressed to the Manager,
Reserve Bank of India, Public Accounts
Department, Ahmedabad by the
Superintendent of Customs, Godown,
Ahmedabad for realization of forfeited
foreign currency.
5. Exh.73 Original complaint of Account Officer,
Reserve Bank of India, Ahmedabad,
dated 04.05.1989.
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6. Exh.74 Seizure memo of documents seized from
Manager, Reserve Bank of India, Public
Accounts Department, Ahmedabad, dated
22.05.1990.
7. Exh.80 Copy of extract of Godown Register.
8. Exh.81 Letter No.VIII/25-1/CG/86 dated
14.09.1988 for realization of fake
currency notes.
9. Exh.83 Panchnama of recovery of eight notes
of U.K. Pounds, dated 19.05.1985.
10. Exh.86 Panchnama of recovery of 152 notes of
U.K. Pounds, dated 18/19.05.1985.
11. Exh.90 Letter No.MB/P&S/FEX/1344 dated
23.09.1988 addressed to the Manager,
Reserve Bank of India, Public Accounts
Department, Ahmedabad by the Manager,
State Bank of India, P & S Banking
(Foreign Exchange Cell) Division,
Ahmedabad Main Branch.
12. Exh.92 Panchnama of recovery of ten notes of
U.K. Pounds, dated 18.05.1985.
13. Exh.94 Letter dated 18.05.1985 addressed to
the Assistant Collector of Customs
(Anti Smuggling), Jamnagar by the
Inspector of Customs (S.G.), Porbandarintimating about the source
information.
14. Exh.95 Search warrant under Section 105 of
the Customs Act, of accused Usman Haji
Abdul Karim Shivani, dated 18.05.1985.
15. Exh.96 Copy of Inventory of goods lying at
Customs Godown, dated 31.05.1985.
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16. Exh.97 Seizure memo dated 20.07.1990 of
seizure of source report dated
18.05.1985.
17. Exh.100 Search warrant under Section 105 of
the Customs Act, of accused Umar Haji
Abu Bera, dated 18.05.1985.
18. Exh.115 Letter No.483/3/7/89-SIU(XI) dated
05.02.1990 addressed to the Assistant
Director, Interpol Wing, Central
Bureau of Investigation, New Delhi by
the Superintendent of Police,
CBI:SIU(XI), New Delhi regardingforwarding of forged U.K. Pounds for
expert opinion.
19. Exh.116 Pound No.A-17-230957 (80 pounds).
20. Exh.117 Pound No.A-57-231709 (1 pound).
21. Exh.118 Pound No.A-23-570917 (36 pounds).
22. Exh.119 Pound No.A-17-230957 (6 pounds).
23. Exh.120 Pound No.A-57-231709 (1 pound).
24. Exh.121 Pound No.A-23-570917 (1 pound).
25. Exh.122 Pound No.A-17-230957 (2 pounds).
26. Exh.123 Pound No.A-23-570917 (4 pounds).
27. Exh.124 Pound No.A-57-231709 (4 pounds).
28. Exh.125 Opinion / Report of Mr. David Hobden
of Bank of England, London, dated
01.08.1990.
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29. Exh.126 Letter dated 05.10.1990 addressed to
the Inspector, CBI, New Delhi by the
Drugs Liaison Officer, HM Customs and
Excise, Attached - British High
Commission, New Delhi.
30. Exh.130 Forwarding letter no.483/3/7/89/SIU
(XI) dated 05.02.1990 addressed to the
Superintendent of Police, CBI,
SIU(XI), New Delhi by the Assistant
Director, CBI Interpol, New Delhi.
31. Exh.133 Letter No.CR/I/58/89/ABD/C-28 dated
02.08.1989 addressed to Shri H.N.Sambhariya, DIG of Police, CBI, Bombay
by Shri H.P. Singh, Superintendent of
Police, CBI, Ahmedabad.
32. Exh.149
Exh.150
Exh.151
Certified copy of entry dated
21.12.1989 on page no.22 of Malkhana
Register and endorsement thereof.
33. Exh.154 Seizure Memo of documents seized fromInspector, Customs by Inspector, CBI,
dated 18.11.1990.
34. Exh.162 Acknowledgment of PI, CBI, Bombay
dated 09.08.1989 regarding receipt of
one confidential cover bearing no.C-28
received from the Superintendent of
Police, CBI, Ahmedabad Branch.
35. Exh.163 Letter dated 09.08.1989 addressed tothe In-charge Malkhana, CBI, ACB,
Bombay by the PI, CBI, Bombay
regarding sending of one sealed cover
containing 170 pieces of 50 U.K. Pound
each (fake).
36. Exh.164 Acknowledgment of PI, CBI, ACB, Bombay
dated 01.09.1989 regarding receipt of
one sealed cover containing 170 pieces
of 50 U.K. Pound each from Malkhana,
CBI, Bombay.
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37. Exh.165 Letter No.1/46/89/BR/ABD/C-4774 dated
31.08.1989 addressed to the Dy.
Inspector General of Police, SIC
(III), CBI, New Delhi by the DIG of
Police, CBI, Bombay Region.
38. Exh.171 Seizure memo dated 15.11.1990 for
seizure of documents from the Manager,
Reserve Bank of India, Ahmedabad by
Dy. Superintendent of Police, CBI, New
Delhi.
39. Exh.172 Seizure Memo of documents seized from
Customs Officer by Inspector, CBI,dated 13.10.1991.
40. Exh.176 Copy of FIR being RC-7/89-SIU(XI)
dated 23.11.1989.
41. Exh.177 Letter dated 16.12.1989 addressed to
the Sub Inspector of Police, CBI, New
Delhi by the Dy. Manager, State Bank
of India, Ahmedabad.
42. Exh.178 Seizure Memo dated 18.12.1989 of the
documents seized from the Collector,
Customs (Preventive), Ahmedabad.
43. Exh.179 Letter No.CR/1/58/89/450 dated
15.01.1990 addressed to the
Superintendent of Police, CBI, New
Delhi by the Superintendent of Police,CBI, Ahmedabad.
44. Exh.180 Seizure memo dated 21.05.1990 of the
documents seized from D.G.M., State
Bank of India, Ahmedabad Main Branch.
Except this, no other oral or documentary
evidence is adduced by the prosecution in respect of
the charges levelled against the accused. The
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defence has not examined any witness in support of
his case.
4. The further statement of the accused no.1
u/s.313 of Cr.P.C. came to be recorded, wherein the
accused was questioned on the incriminating
circumstances appearing in the evidence, which he
denied in toto. The accused no.1 has also filed the
written statement on the same day. As per his say,
the present case is false. He stated that prior to
30 years of the incident in question, the accused
no.1 was serving in the showroom of Mafatlal, where
Customs Inspector Shri Raithatha was frequently
visiting. During his visit, he used to ask as to
which parties were dealing in the foreign clothes.
As the accused no.1 shown ignorance, Shri Raithatha
took his signatures on the blank papers and framed
him in this false case.
Submissions of Prosecution:
5. Learned Public Prosecutor Shri A.A. Shaikh
appearing for the CBI has urged that on the
complaint made by Shri A. Kartikeyan, Accounts
Officer, Reserve Bank of India, Ahmedabad, the case
was registered with the CBI on 23.11.1989 against
Umar Haji Abu Bera, Usman Haji Abdul Karim Shivani
and Ahmed Haji Anwar Sunka for the offences
punishable under Section 489(B) and 489(C) read with
Section 120-B of I.P.C. The investigation was
carried out by the CBI-SIU(XI), New Delhi and after
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completion of the investigation, the chargesheet was
filed against all the three accused. During the
course of trial, accused Ahmed Haji Anwar Sunka
remain absent for a long time and therefore, non-
bailable warrant was issued against him, but despite
best efforts of the CBI, he could not be served and
therefore, the notice was issued to the surety who
also could not produce accused Ahmed Haji Anwar
Sunka and thereafter, the case of the said accused
was separated. The Learned Public Prosecutor further
submitted that the charge (Exh.50) was framed
against the remaining two accused and during the
trial, accused Usman Haji Abdul Karim Shivani
expired and the case against him was ordered to be
abated vide order passed below Exh.139. Taking this
Court through the oral and documentary evidence, the
Learned Public Prosecutor submitted that in all, 18
counterfeit pounds of 50 denomination were recovered
from accused Umar Haji Abu Bera. According to him,
looking to the serial numbers of the fake pounds
mentioned in the panchnama of seizure of ten fake
notes of pounds (Exh.92), it can be seen that the
same serial numbers were printed on more than one
note and therefore, it can be presumed that accused
Umar Haji Abu Bera was having sufficient knowledge
about the counterfeit pounds and moreover, the
accused was caught in the public place by the
Customs Inspectors in presence of two independent
panch witnesses. He further submitted that the
seized pounds were sent by the CBI Interpol for the
opinion through British High Commission and the said
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pounds were opined to be fake. It is urged by the
Learned Public Prosecutor that the prosecution has
successfully proved the charges levelled against the
accused by cogent evidence and he urged to hold the
him guilty for the aforesaid offences.
In support of his submissions, the Learned
Public Prosecutor has placed reliance on the
following authorities.
(1) A.N. Venkatesh V/s. State of Karnataka, 2005
(3) Crimes 231 (SC).
(2) Kochakkadam Kunjuvaveed Thomas V/s. D.R. Gohil,
Supdt. Of Customs, II (2002) CCR 177.
(3) Manohar Amrut Satpudke V/s. The State of
Maharashtra, 2001 Cr.L.J. 4355.
(4) State Govt. of NCT Delhi V/s. Sunil, 2001
Cr.L.J. 504.
(5) Gulam Hussain Shaikh Chougule V/s. S. Reynolds,
Suptd. Of Customs, Marmgoa, 2001 Cr.L.R. (SC)
746.
(6) Bhana Khalpa Bhai Patel V/s. Assistant
Collector of Customs, I (1998) CCR 23 (SC).
(7) Rifakatalikhan V/s. State of Maharashtra, 1993
Cr.L.J. 3844.
(8) State of Gujarat V/s. Raghunath Vamanrao Baxi,
AIR 1985 SC 1092.
(9) K. Hasim V/s. State of Tamil Nadu, 2005 Cr.L.J.
143 (SC).
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Submissions by Defence:
6. Learned Advocate Shri H.R. Palejiya
appearing for the accused submitted that on
18.05.1985 the Customs Department, Porbandar seized
the currency notes of U.K. pound from the accused
and after two years i.e. in the year 1987, these
notes of U.K. pounds were sent to the Reserve Bank
of India, Ahmedabad by the Customs Department,
Porbandar. The Reserve Bank of India sent the said
pounds to State Bank of India, Ahmedabad and the
said pounds were found to be fake and bogus and the
State Bank of India intimated about the said fake
pounds to the Reserve Bank of India, Ahmedabad and
Shri A.N. Kartikeyan, Accountant, RBI lodged a
complaint with the CBI on 04.05.1989. He submitted
that Section 489-C of I.P.C. provides for the
possession of forged or counterfeit currency notes
or bank notes. Section 489-C says that if any person
possesses any forged or counterfeit currency,
knowing reason to believe that the same are forged
and counterfeit and intends to use the same, he
commits an offence punishable under this Section.
According to the Learned Advocate, the accused must
know about the forged and counterfeit currency and
in absence of this knowledge, it can be said that no
offence is committed by the person. For this
submission, Learned Advocate Shri Palejiya placed
reliance on the case reported in AIR 1979 SC 1705
and in the case of Karunakaran Nadar V/s. State
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reported in 2000 Cr.L.J. 3748. He further submitted
that for a long time the original pounds were not
available and no signature of accused or seizing
officer was taken on the original pounds and the
said pounds were with the different authority for a
long time and it is not appropriate to believe that
these are the same pounds which were seized by the
Customs Department, Porbandar. He submitted that
except the panch witnesses, the other witnesses are
the government officers who did not find, on the
first glance, the said pounds to be fake one. He
further submitted that PW-11 Shri Raithatha deposed
during his cross-examination that when the said
notes of pound were seized, they could not recognize
the same to be fake and therefore, no sealing
process was done. Likewise, PW-3 also, in his
deposition, deposed that for two days the said
currency notes were lying with the Reserve Bank of
India and they did not find the same as fake. He
further deposed that on 16.09.1988 they sent the
currency notes to the State Bank of India for
realization. PW-18 also agreed in her deposition
that they could not find the currency kept in the
cover to be fake. Learned Advocate submitted that
the witnesses examined by the prosecution could not
say whether the said seized currency were fake or
not. Moreover, though the said currency were seized
in the year 1985, it reached to the State Bank of
India in 1988 and during these three years the
Customs Inspectors, Superintendent and Reserve Bank
of India Officers could not find the said pound as
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fake and bogus. On all these counts, Learned
Advocate for the accused urged the Court to give
benefit of doubt to the accused.
Issues:
7. After minutely examining the evidence, oral
and documentary, adduced by the prosecution and
after hearing Learned Advocates for the parties and
considering the written submissions made, the
following issues arise for determination of this
Court.
(1) Whether the prosecution proves beyond
reasonable doubt that the accused persons
hatched a criminal conspiracy at Porbandar
during the period from April'85 to May'85
for possessing and trafficking the fake
foreign currency as genuine in that area?
(2) Whether the prosecution proves beyond
reasonable doubt that the accused no.1, as a
part of conspiracy or otherwise, received
the fake currency notes of British Pound
from the accused no.3 knowing a reason to
believe the same to be forged and
counterfeit?
(3) Whether the prosecution proves beyond
reasonable doubt that the accused no.1, as a
part of conspiracy or in pursuance to the
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conspiracy hatched during the period from
April'85 to May'85, was found in possession
of fake currency notes of British Pound
knowing a reason to believe the same to be
forged and counterfeit with an intention to
use the same as genuine?
(4) What order?
8. My answers to the aforesaid issues are as
under:
(1) In Negative.
(2) In Negative.
(3) In Negative.
(4) As per final order.
Reasonings:
9. PW-1, Shri Harichand Nanalal Chokhawala has
been examined by the prosecution at Exh.65. This
witness was serving as Cashier in Reserve Bank of
India, Ahmedabad in the year 1988 and at that time,
Smt. R.T. Desai was working as Manager and Shri
Kartikeyan was working as Accountant in the bank.
This witness deposed that the Reserve Bank of India
was dealing in foreign currency received from the
government offices and they used to send the foreign
currency to the State Bank of India, Main Branch for
exchange. This witness was given a letter with one
sealed cover by Smt. R.T. Desai, Manager to handover
the same to the State Bank of India, Foreign
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Exchange and this witness handed over the said
letter with sealed cover containing 170 fake pounds
to Shri Satishbhai Bhatt of State Bank of India.
10. PW-2, Shri Devendrakumar Dalabhai Gohil -
Cashier, Reserve Bank of India, Ahmedabad has been
examined at Exh.67. This witness testified that he
had been given a letter with one sealed cover by
Shri Kartikeyan, Accountant in the Reserve Bank of
India to handover the same to the CBI and
accordingly, this witness handed over the said
letter with the sealed cover to the CBI on
04.05.1989.
11. PW-3, Shri A.N. Kartikeyan - Accountant,
Reserve Bank of India, Ahmedabad has been examined
at Exh.71. This witness testified that the bank had
received 170 pounds from the Customs Department on
14.09.1988 which were sent in a sealed cover to the
State Bank of India for exchange as Reserve Bank of
India was not dealing in exchange of foreign
currency and the said currency notes were opined to
be fake and therefore, as per the direction of the
officers of this department, this witness lodged a
complaint with Superintendent of Police, CBI,
Ahmedabad on 04.05.1989 and said currency notes were
sent with the complaint written on the letter pad of
the Reserve Bank of India. When this witness was
recalled by the Court under Section 311 of the
Cr.P.C., he identified the pounds produced vide
Exh.116, Exh.117 and Exh.118 and also the pounds
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Exh.119 to Exh.124 which were sent by this witness
with his complaint.
12. PW-4, Shri Girishbhai Sunderbhai Macwan -
Superintendent of Godown, Customs Department, has
been examined at Exh.79. This witness has deposed
that in any case, when the foreign currency notes
are seized by the Customs as muddamal, the same are
kept in godown after making an entry in the
register. This witness has testified that in the
Godown Register, at serial no.33, an entry has been
made of receipt of 170 pound and currency notes
seized from accused Umar Haji Abu Bera. After making
an entry in the register on 14.09.1988, the said
pounds were sent to the Reserve Bank of India
alongwith a letter as per the practice prevailing in
the Customs Department. On recalling this witness
under Section 311 of the Cr.P.C., he identified 170
pounds produced before the Court vide Exh.116 to
Exh.124 as muddamal articles, entry of which has
been made in the Register at serial no.33/85
(Exh.80)
13. PW-5, Ibrahimkhan Mohmedkhan Pathan and PW-
6, Basirkhan Hussainkhan Pathan are the panch
witnesses to the panchnama of search carried out at
residential premises of accused Umar Haji Abu Bera
(Exh.83). Both these witnesses have not supported
the case of prosecution and have turned hostile to
the case of prosecution.
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14. PW-7, Shri Jalendu Milaprai Chhaya and PW-8,
Shri Chandrakant Manmohandas Parekh have been
examined respectively at Exh.85 and Exh.87 to prove
the charges leveled against accused Usman Haji Abdul
Karim Shivani, who has died and the case against
whom has been abated. Both these witnesses have not
supported the case of prosecution and turned
hostile.
15. PW-9, Shri Satishbhai Jayantilal Bhatt
working as Dy. Manager, Foreign Exchange Cell, State
Bank of India, is examined at Exh.89. This witness
has testified that the SBI was dealing in the
foreign exchange. He identified the letter Exh.66
sent by the Reserve Bank of India to his bank with
currency of 173 pounds of 50 denomination, out of
which three pounds were genuine and for the said
three pounds, a banker cheque in the name of RBI was
prepared and for the remaining 170, an endorsement
was made by him on the letter on 19.09.1988 as the
currency notes of 170 pounds were fake and it could
be identified by him from the quality of paper and
from the numbers which were same in three sets. On
recalling this witness under Section 311 of the
Cr.P.C., he identified 170 pounds produced before
the Court vide Exh.116 to Exh.124 as muddamal which
were sent with the letter Exh.66.
16. PW-10, Shri Pravinchandra Kakubhai Karvadara
is examined at Exh.91, who is a panch witness in
whose presence ten currency notes of U.K. Pound were
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seized from accused Umar Haji Abu Bera. This witness
has fully supported the version of panchnama Exh.92
and has identified the pounds seized from the
accused.
17. PW-11, Shri Rajendrakumar Shantilal
Raithatha - Customs Inspector, Porbandar has been
examined at Exh.93. He has testified that on
18.05.1985, an information was received by him and
by Shri B.K. Kulshrestha that accused Umar Haji Abu
Bera and Ahmed Haji Anwar Sunka were possessing 8 to
9 pound in the denomination of 50 each and they
reported to their superior officer i.e.
Superintendent and as per the direction of the
superior officer, this witness went to Sudama Chowk,
Porbandar alongwith Shri Kulshrestha, Inspector Shri
K.A. Atalia, Sipoy and two panchas and in presence
of panchas, accused Umar Haji Abu Bera was stopped
and on his personal search, ten currency notes in
the denomination of 50 pounds kept in the marriage
invitation card in his pocket were recovered. The
said notes were seized under the panchnama Exh.92.
This witness further deposed that one Ahmed Haji
Anwar Sunka was also found involved and on search of
his house, 152 currency notes of pounds were seized
under the panchnama Exh.86. He further testified
that in all 170 notes of pounds seized from the
accused, were deposited in the Custom Godown vide
receipt Mark-62/21 duly signed by this witness and
In-charge Custom Godown. This witness has been
recalled under Section 311 of the Cr.P.C. and he
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identified the muddamal pounds produced before the
Court vide Exh.122 to Exh.124 which were seized
under the panchnama.
18. PW-12, Shri Moreshvar Govind Joshi - In-
charge Superintendent at Porbandar, has been
examined at Exh.99, who has deposed that he received
a written information from Inspector Shri Raithatha
and Shri Kulshreshth that accused Umar Haji Abu Bera
and Usman Haji were possessing the fake pound. He
also deposed that the search warrant Exh.95 was is
sued by him and the statements of Umar Haji Abu
Bera, Usman Haji Abdul Karim Shivani and Ahmed Haji
Anwar Sunka were recorded in his present.
Subsequently, this witness was recalled and he
identified the muddamal pounds Exh.116 to Exh.124 as
the same which were deposited in the custom godown.
19. PW-13, Shri Brijeshkumar Prembahadur Varma
has been examined at Exh.101. On 18.05.1985 this
witness was serving as Custom Inspector at
Porbandar. He testified that Inspector Shri
Rajendrakumar Raithatha and he himself received an
information that Umar Haji Abu Bera and Ahmed Haji
Anwar Sunka were illegally dealing in British pound.
He further testified that ten notes of U.K. pounds
of 50 denomination were recovered from personal
search of Umar Haji Abu Bera which were seized under
the panchnama Exh.92. He deposed that the search of
house of Umar Haji was also conducted and during the
search, eight notes of pounds of 50 denomination
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were found from the wooden cupboard which were
seized for further investigation. This witness has
been recalled under Section 311 of the Cr.P.C. and
he identified the muddamal pounds produced before
the Court vide Exh.119 to Exh.121 which were seized
under the panchnama Exh.83.
20. PW-14, Shri Harishbhai Valjibhai Patansha,
who was running a Rationing Gran Shop at Memonwad,
Porbandar, has been examined at Exh.103. He has
deposed specifically that accused Umar Haji Abu Bera
was residing at Memonwad, Porbandar from where eight
fake pounds of 50 denomination were seized under the
panchnama Exh.83.
21. PW-15, Mohmedshafi Gulammemon Bera -
resident of Memonwad, Porbandar, is examined at
Exh.104 to prove that the accused Umar Haji Abu Bera
was residing at Memonwad, but he has not supported
the case of prosecution and turned hostile.
22. PW-16, Shri Rajendrasingh Ramswarupsingh
Panvar, who was serving in CBI Interpol Branch, New
Delhi, is examined at Exh.114. He testified that
Inspector, CBI handed over him a letter and 170 U.K.
Pounds which were to be sent to the concerned U.K.
authority for their examination and opinion. He
further testified that the said pounds were sent
through the British Embassy for examination on
12.07.1990 and the pounds were handed over to Peter
Cargon, Drug Liaison Officer of British High
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Commission. The opinion regarding the said 170 U.K.
pounds given by David Hobden of Bank of England,
London was received and the said opinion and 170
notes of pound of 50 denomination were sent to the
CBI.
23. PW-17, Shri Chhatrasinh Surajmalsinh
Vaghela, who was serving as Head Clerk in Special
Branch CBI, Ahmedabad is examined at Exh.132. He
testified that a written complaint (Exh.68) and a
sealed cover containing 170 notes of pound were sent
by the Reserve Bank of India, Ahmedabad vide a
forwarding letter addressed to Shri Pandya, Dy.
S.P., CBI who handed over to this witness the said
170 notes of pound to keep in custody. He further
testified that the currency notes were sent to the
DIG, Mumbai vide letter dated 02.08.1989 (Exh.133)
and he identified the pounds produced vide Exh.116
to Exh.124.
24. PW-18, Smt. Rupmina Tarangesh Desai, who was
serving as Assistant Manager in Reserve Bank of
India, Ahmedabad, has been examined at Exh.144. She
identified the letter dated 14.09.1988 (Exh.72)
received from the Customs Superintendent alongwith
sealed cover which was opened in the presence of
this witness and also in the presence of Manager
Shri Kartikeyan and Cashier Shri Chokhawala at the
instruction of Manager. On opening the said sealed
cover, 170 notes of U.K. pounds were found as
counted by the Cashier and the said cover was sealed
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again and sent to the State Bank of India with
letter dated 16.09.1988 (Exh.66) and the Manager,
State Bank of India, P & S Banking (Foreign Exchange
Cell) Division, Ahmedabad Main Branch returned the
said pounds in a cover vide letter dated 23.09.1988
(Exh.90) and the said cover was kept in the safe
custody.
25. PW-19, Shri Balkishan Harfulsingh Sharma is
examined at Exh.147. In the year 1989, this witness
was serving as ASI, CBI-SIU(XI) and was In-charge of
Malkhana. He testified that on 21.12.1989 170 notes
of pound of 50 denomination were handed over to him
by Inspector Shri Soman for keeping it in the
malkhana. This witness made an entry of the said
pounds in the register on page-22 (Exh.149). He
further deposed that vide entry dated 05.02.1990
made on page-2 in the register, the said muddamal
pounds were sent to the Interpol and on receipt of
the muddamal from the Interpol, an entry was made on
09.10.1990.
26. PW-20, Shri Hemshankar Keshavji Vyas, who
was serving as Inspector in Customs Department, has
been examined vide Exh.153. He deposed that he
handed over the documents required by the CBI vide
seizure memo dated 18.11.1990 (Exh.154).
27. PW-21, Shri Nattharam Kalaram Macwan was
serving as Head Constable in CBI, Ahmedabad. This
witness, in his deposition at Exh.160, has deposed
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that on 08.08.1989 he was handed over a letter and a
sealed packet by Superintendent of Police and the
same was to be sent to the Office of DIG, Mumbai and
on 09.08.1989 this witness handed over the said
letter and sealed packet to Inspector Shri Shinde in
the office of DIG, Mumbai. He also produced a copy
of dispatch register in which the entry for the same
was made.
28. PW-22, Shri Gangaram Shivaji Shinde, who was
serving as Inspector in CBI, Mumbai in ACB
Department has been examined at Exh.161. He
testified that Shri Nattharam Macwan, Head
Constable, CBI, Ahmedabad handed over one sealed
packet which was accepted by this witness and a
receipt was given to him. He further testified that
as per the instruction of DIG, the said sealed
packet was sent to the Malkhana alongwith the letter
for the safe custody and on 01.09.1989 the said
packet was sent to other branch of CBI for further
investigation. He testified that as per the opinion
of CBI, Ahmedabad, the investigation at interstate
and international level was necessary by the Delhi
Office which was accepted by the DIG, Mumbai and
therefore, the said packet was sent to the CBI
Office at Delhi. He further testified that the said
packet was in a sealed condition since it was
deposited in Malkhana till it was sent at Delhi.
29. PW-23, Shri Ram Murti Rachnaram, who was
serving as Inspector in CBI-SIU(XI), has been
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examined by the prosecution at Exh.170. The
investigation of the case was handed over to this
witness, but the chargesheet was filed by Shri
Saroha. He identified the source report Exh.97,
seizure memo at Exh.171 and Exh.172.
30. PW-24, Shri Vadakkan Mannoor Sanku Soman,
who was serving as Sub Inspector, CBI-SIU(XI), has
been examined at Exh.175. He testified that the case
was registered with their branch and the
investigation was handed over to this witness. He
recorded the statements of witnesses and seized
relevant documents. He testified that during the
course of investigation, the sealed packet
containing the counterfeit currency notes of pound
was collected by him and the said currency notes
were verified and deposited in Malkhana.
31. At the outset, it requires to be noted that
the accused no.1 is facing the charge for the
offences punishable under Section 489-B and 489-C of
I.P.C. inasmuch as the accused no.1 was found to be
in possession of 18 currency notes of U.K. pound in
the denomination of 50 each as per the recovery
panchnamas Exh.83 and Exh.92 drawn on 19.05.1985 and
18.05.1985 respectively. In order to prove the fact
that the said 18 notes of U.K. pound are fake, the
prosecution has relied upon the opinion of Mr. David
Hobden of Bank of England, London, dated 01.08.1990.
On reading of the said report, it seems that Mr.
David Hobden examined Exh.PJC/1, PJC/2 and PJC/3 and
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opined that the things in the said exhibits are not
genuine currency notes. But, the prosecution has
failed to lead the evidence as to contents of the
said exhibit. In the said opinion itself, nowhere it
is mentioned that the said exhibit contains the said
18 notes of U.K. pound in the denomination of 50
which were recovered under the panchnamas Exh.83 and
Exh.92. In other words, no inference can be drawn to
the effect that Exh.PJC/1 to PJC/3 or any of its
exhibit contained the fake notes which were
recovered as per the said recovery panchnamas. So,
prima facie there is no evidence led by the
prosecution to prove that Mr. David Hobden of Bank
of England at London was provided with the notes
recovered as per the panchnamas at Exh.83 and
Exh.92. In fact, the prosecution case collapses at
this stage only. However, looking to the seriousness
of the offence, it is desirable to see whether the
prosecution succeeds in proving the charge against
the accused or not.
32. Before the case is taken on merits, it is
required to be noted that the Superintendent of
Customs Shri M.G. Joshi (PW-12) recorded the
statement of accused no.1 under the provisions of
Section 108 of the Customs Act which is produced at
list Exh.62/7, admissibility of which has been
objected by the defence side and therefore, the same
was not admitted into the evidence by the then
Presiding Officer and the issue was kept open for
the decision at the time of argument. On this issue,
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this Court heard the arguments of both the sides and
minutely examined the statement recorded by PW-12
under Section 108 of the Customs Act and also the
principles laid down in the case of Kochakkadam
Kunjuvaveed Thomas (Supra), Gulam Hussain Shaikh
Chougule (Supra) and Bhana Khalpa Bhai Patel
(Supra). From the oral evidence of PW-11 Shri
Raithatha and PW-12 Shri M.G. Joshi, it can be
inferred that the statement recorded under Section
108 of Customs Act was without threat and
inducement, but both these witnesses have failed to
explain the relevant provisions of law to the
accused no.1 who gave the said statement. Not only
that, the said statement does not disclose the
number of fake notes of pound as recorded in the
panchnama. Similarly, while recording the said
statement by PW-12, he did not explain to the
accused no.1 about the relevant provisions of law
viz. the provisions of FERA and / or IPC so as to
use the said statement against the accused no.1 in
the present case. Since the Learned Advocate for the
accused no.1 has not raised any objection so as to
decline its admissibility into evidence, keeping in
mind the principles laid down in the cases cited
hereinabove, the statement recorded by PW-12 under
Section 108 of the Customs Act is ordered to be
admitted into evidence and the same is exhibited as
Exh.210. Now, it is the right time to decide the
issue nos.1 to 3.
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Issue No.1: Whether the prosecution proves beyond
reasonable doubt that the accused persons
hatched a criminal conspiracy at
Porbandar during the period from April'85
to May'85 for possessing and trafficking
the fake foreign currency as genuine in
that area?
33. This Court is also fully aware of the well
laid down principles in the catena of judgments and
more particularly the latest judgment delivered by
the Hon'ble Apex Court in the case of State (NCT of
Delhi V/s. Navjot Sandhu @ Afsan Guru reported in
2005 Supreme Court Cases (Cri.) 1715 (Parliament
Attack Case) on the point of criminal conspiracy
vide Section 120-A and 120-B of I.P.C. The
conspiracy is always hatched in secrecy and it is
impossible to adduce direct evidence of the same.
The offence can only be proved largely from the
inferences drawn from the acts or illegal omission
committed by the conspirators in pursuance of a
common design. To establish a charge of conspiracy,
knowledge about indulgence in either an illegal act
or a legal act by illegal means is necessary.
Similarly, When the ultimate offence consists of a
chain of actions, it would not be necessary for the
prosecution to establish, to bring home the charge
of conspiracy, that each of the conspirators had the
knowledge of what the collaborator would do, so long
as it is known that the collaborator would put the
goods or services to an unlawful use.
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34. Similarly, mere leveling the charge of
conspiracy without mentioning how, where, when and
which of the conspirators hatched the criminal
conspiracy and for what purpose or circumstances
warranting an inference of existence of conspiracy
is not enough to bring the present persons to face
the trial in the criminal court. The prosecution
should make out the case against the accused
persons. One cannot have the construction of a fine
superstructure without foundation. Similarly, the
provisions contained in Section 120-B applies to
those who are the members of conspiracy during its
continuation. In other words, the conspiracy has to
be treated as continuing offence and whoever is
party to the conspiracy during the period for which
he is charged is liable under this Section.
35. In the instant case, there is a specific
allegation against the accused persons that they
hatched a criminal conspiracy at Porbandar during
the period from April, 1985 to May, 1985 for
possessing and trafficking the fake foreign currency
notes as genuine in that area. The prosecution has
examined in all 24 witnesses to prove the charge of
conspiracy and other offences, but none of the
witnesses could testify as to when, where and how
the conspiracy was hatched to possess the fake
currency notes. On the contrary, it is evident from
the evidence of all the witnesses that nobody knew
for about four years that the currency notes were
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fake and counterfeit. Similarly, there is nothing in
the statement of the accused no.1 recorded under
Section 108 of the Customs Act to infer that he
entered into a criminal conspiracy with other
accused persons and he was party to the said
conspiracy during the said period. Under the
circumstances, there is no iota of evidence to infer
about the existence of the conspiracy during the
said period and therefore, the Court is left with no
option except to answer the issue no.1 in negative.
Issue No.2: Whether the prosecution proves beyond
reasonable doubt that the accused no.1,
as a part of conspiracy or otherwise,
received the fake currency notes of
British Pound from the accused no.3
knowing a reason to believe the same to
be forged and counterfeit?
AND
Issue No.3: Whether the prosecution proves beyond
reasonable doubt that the accused no.1,
as a part of conspiracy or in pursuance
to the conspiracy hatched during the
period from April'85 to May'85, was
found in possession of fake currency
notes of British Pound knowing a reason
to believe the same to be forged and
counterfeit with an intention to use the
same as genuine?
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36. Since the issue nos.2 and 3 are
interrelated, for the sake of brevity and
convenience and to avoid repetition of facts and
findings, it would be appropriate to discuss and
decide the issue nos.2 and 3 together.
37. As is evident from the evidence on record,
18 fake notes of pound were recovered from accused
no.1 on 18.05.1985 and 19.05.1985. After recovery of
the said 18 notes of pound, PW-11 Shri Raithatha did
not seal the said seized pound and further he did
not take the signature of any panch or accused on
the seizure memo. The said witness also admitted
that after recovery of the said notes of pound, he
did not deposit the same in the godown for about 14
days. So, it means that the said seized fake 18
notes of pound remained with PW-11 for 14 days in
unsealed condition and further, without preparing
the seizure report. It also appears from the
evidence adduced by the prosecution, more
particularly, the letter dated 13.09.1988 addressed
to the Manager, Reserve Bank of India, Public
Accounts Department, Ahmedabad by the Superintendent
of Customs, Godown (Exh.72) that the said 18 notes
plus 152 foreign currency notes of Bank of England
were confiscated by the Customs Department alongwith
other foreign currency and were sent to the Reserve
Bank of India for realization of counterfeit foreign
currency. Vide letter dated 23.09.1988 (Exh.90) the
State Bank of India informed the Manager, Reserve
Bank of India that the said 170 notes of pound were
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found to be fake and therefore, the same were
returned back unaccepted for realization. Till this
moment right from the recovery of said currency
notes of pound on 18.05.1985, nobody knew that the
said 170 notes were fake or counterfeit. After
receipt of the said fake notes of pound, Shri
Kartikeyan A.N, Account Officer, Reserve Bank of
India, Ahmedabad (PW-3) addressed a letter (Exh.73)
to the CBI, Ahmedabad on 04.05.1989, seeking advise
on the outcome of investigation in respect of the
said 170 pieces of U.K. pound in the denomination of
50 each. Significantly, all the time the fake
foreign currency notes at Exh.116 to Exh.124 moved
from one office to another office and also from one
authority to another authority in open condition.
Under the circumstances, the recovery / seizure
proceeding carried out by PW-11 Shri Raithatha
becomes doubtful and therefore, no reliance can be
placed on such seizure and recovery proceeding so as
to infer that the accused was found in possession of
the said 18 fake notes of pound as alleged.
Admittedly, the officers of Customs Department could
not allege that the currency notes found in the
possession of the accused no.1 were counterfeit
notes. Not only that, various officers who testified
before the Court, in terms, stated that no one could
form a definite opinion that the said notes were
fake or counterfeit.
38. In case of Mohd. Yasin V/s. State of U.P.
reported in 1997 Cr.L.J. 3188, the Allahabad High
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Court observed that, from the evidence of Jagdish
Kumar Agarwal, P.W.3 and Dr. Virendra Kumar P.W.2,
it appears that they suspected about the genuineness
of the said notes after inspecting it and in order
to get confirmation, they consulted with P.W.4. In
both Sections, namely, Sections 489-B and 489-C,
I.P.C. words knowing or having reason to believe
the same to be forged or counterfeit note have been
commonly used.
In the case of M. Mammutti V/s. State of
Karnataka reported inAIR 1979 SC 1705, it has been
held that presumption of knowledge from mere
possession can only be drawn if the notes were
apparently counterfeit. In the case on hand, it is
not so because the disputed fake notes seized by the
Customs Officers were not found to be counterfeit or
fake and therefore, they proceeded for forfeiture
thereof. If at all there had been any doubt in the
mind of Customs Officers, they would not have
forfeited the fake notes. PW-11 Shri Raithatha, in
terms, admitted in his cross-examination in para-7
that during the course of investigation, he found
that accused Usman Haji did not know about the
disputed notes. Even in the statement of accused
no.1 vide Exh.210 recorded under Section 108 of the
Customs Act, he specifically disclosed that he
received the said notes of pound from one Ahmed
Haji Anwar for the purpose of selling the same.
Nowhere it is stated by the accused no.1 in his
statement Exh.210 that he had knowledge about the
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currency notes in question being fake or
counterfeit. Under Section 489-B of I.P.C., the
burden is on the prosecution to prove that at the
time when the accused was using or passing the note,
he knew that it was a forged one. The mere
possession of it by him does not shift the burden to
the accused to prove his innocent possession of the
forged note. Similarly, under Section 489-C, it is
to be proved that the accused intended to use the
forged or counterfeit currency note as genuine or it
might be used as genuine. It is for the prosecution
to prove the circumstances which would irresistibly
lead to the conclusion that the accused had the
intention to introduce surreptitiously the fake note
in the public. So, it is the legal duty of the
prosecution to prove that the accused no.1 was
possessing the fake currency notes or had the reason
to believe that the currency notes were forged and
counterfeit. No doubt, necessary knowledge can be
presumed from the circumstances of the case, but the
existence of such circumstances is also the
requirement of law. As discussed hereinabove, the
officers belonging to the different departments had
no knowledge or they could not find the notes in
question as fake or counterfeit at the relevant
time. Similarly, there is no evidence led by the
prosecution that the accused no.1 had such knowledge
and with such knowledge, he introduced the fake
notes as genuine in the public. Except recovery of
currency notes as per the panchnamas Exh.83 and
Exh.92, there is no iota of evidence, either oral or
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documentary or circumstantial, to infer that the
accused no.1 has any such knowledge as required
under Section 489-B and 489-C of I.P.C. Thus, the
prosecution has failed to prove the basic
ingredients of Section 489-B and 489-C of I.P.C.
39. Now, it is right to consider the rulings
cited at bar by the Learned Public Prosecutor. In
case of A.N. Venkatesh (Supra), Hon'ble Apex Court
held that by virtue of Section 8 of the Evidence
Act, the conduct of the accused person is relevant,
if such conduct influences or is influenced by any
fact in issue or relevant fact. The Hon'ble Apex
Court further observed therein that even if we hold
that the disclosure statement made by the accused
appellant is not admissible under Section 27 of the
Evidence Act, still it is relevant under Section 8.
In the instant case, there is no such
evidence on record so as to examine the case in the
light of the principles laid down in the above said
case. Moreover, the statement recorded of the
accused no.1 under Section 108 of the Customs Act
does not disclose any such conduct so as to infer
that the accused had any knowledge about the notes
being fake or counterfeit.
In case of Manohar Amrut Satpudke (Supra),
the Bombay High Court while appreciating the
evidentiary value under Section 27 of the Evidence
Act, has observed that merely because the panchas do
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not support the disclosure, the fact cannot be
disbelieved and the statement is not required by the
law to be recorded in presence of panchas and the
Bombay High Court held therein that the prosecution
proved its case beyond reasonable doubt.
In the case on hand, both the panchas to the
panchnama Exh.83 have turned hostile and not
supported the case of prosecution. Even it is
assumed that there was a recovery of fake currency
notes from the house of accused no.1, but the
prosecution has failed to prove its case on the
other aspect of the matter and therefore, the said
authorities relied upon by the Learned Public
Prosecutor will not be helpful to the prosecution.
The ratio laid down in the case of State
Govt.of NCT Delhi V/s. Sunil (Supra), Rifakatalikhan
(Supra), State of Gujarat V/s. Raghunath Vamanrao
Baxi (Supra) are, more or less, on the same line as
laid down in the case of Manohar Amrut Satpudke
(Supra) and therefore, it is not required to be
discussed any further.
40. The offset of the above discussion is that
the prosecution has miserably failed to prove the
case beyond reasonable doubt, hence, the issue nos.2
and 3 are also answered in negative and the benefit
thereof must go to the accused no.1. Hence, the
following order is passed.
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ORDER
Accused No.1 - Umar Haji Abu Bera is given
benefit of doubt of the offences punishable under
Section 120-B read with Section 489-B and 489-C of
the Indian Penal Code and is hereby acquitted. Bail
bond of the accused stands cancelled.
Since accused no.3 - Ahmed Haji Anwar Sunka
is still absconding and the trial against him has
been separated vide order dated 07.07.2001 passed
below Exh.33 in Sessions Case No.51/1995 (New
Special Case No.4/2005), no order with regard to
these case properties be made and the same shall be
preserved by the office till the trial against
accused Ahmed Haji Anwar Sunka is over.
Pronounced in the open Court on this 20th day
of March, 2009.
[S.H. VORA]
Special Judge, CBI Court No.5,
At Mirzapur, Ahmedabad.
leena