RAGHUBIR SINGH Vs. STATE OF DELHI

JUDGEMENT

(1.) By this appeal the Appellants lays a challenge to the judgment dated 7 th February, 2003 whereby he has been convicted for offences punishable under Sections 489B/489C IPC for possession of three fake currency notes of Rs. 500/- denomination and the order on sentence dated 10 th February, 2003 whereby he has been directed to undergo Rigorous Imprisonment for a period of 31/2 years and a fine of Rs. 500/- each for the aforesaid offences and in default of payment of fine, the Appellant has to undergo Simple Imprisonment for a period of three months on each count.

(2.) Learned counsel for the Appellant contends that the prosecution has neither proved the intention of the Appellant nor the possession. The prosecution has to prove the possession by leading positive evidence and no presumption qua the possession can be raised. No question has been specifically put to the Appellant under Section 313 Cr.P.C. that the contraband was recovered from the possession of the Appellant. After the recovery of the notes, the same were never sealed and were circulated from one person to another without seal, which aspect has been totally overlooked by the learned Trial Court. The defence of the Appellant was that he had gone for reservation to the railway booking counter and gave 12 notes of Rs. 100/- denomination for ticket from Delhi to Bandra. The Appellant was demanding the balance amount of Rs. 40/- which the booking clerk was not giving and thus the dispute arose between them. At that stage PW1 foisted these notes on the Appellant. Though the prosecution failed to prove the possession, the learned Trial Court relying on the uncorroborated and contradictory testimony of PW1 and the fact that in the bail application it was admitted that the notes were given by the brother of the Appellant, convicted the Appellant for the aforesaid offences. The bail application is neither signed by the Appellant nor his pairokar nor the counsel. Thus the same could not be treated as a confession. While seizing the notes no identification mark was put on the notes. Though opinion was taken from the Nasik Press however, the same was not properly exhibited as no expert witness come forth to exhibit the same. Despite occurrence at public place no public witness was joined. The essential requirement of mensrea has not been proved. Reliance is placed on M. Mammutti vs. State of Karnataka, 1979 AIR(SC) 1705; Umashanker vs. State of Chhattisgarh, 2001 AIR(SC) 3074 and Madan Lal Sharma vs. The State, 1990 CrLJ 215.

(3.) Learned APP for the State on the other hand contends that though initially PW4 Constable Sudhir Kumar had taken the notes in an unsealed condition to the RBI office however, thereafter they were duly sealed by the seal of RBI. RBI PW2 Swayam Prakash, the Treasurer from RBI stated that the three notes Ex. P1 to P3 were produced before him and he opined them to be forged in view of various features. Further PW3 Ms. Usha R. Thomas has clearly stated that she was in the reception hall with the counter clerk as she was the supervisor, when the notes were handed by the Appellant to the counter clerk PW1. Thereafter these notes were not returned by the booking clerk to the Appellant but handed over to her which she handed over to the police. Minor contradictions arising due to the testimony of Investigating Officer PW7 that the fake currency notes were handed over by PW1 and PW3 will not shake the otherwise credible testimony of the witnesses. The notes have been opined to be fake, both by the Treasurer, RBI and also Nasik Press. The expert opinion Ex. PW7/F received from the Nasik press is per se admissible under Section 292 Cr.P.C and in case the Appellant was challenging the same he ought to have summoned the witness under Section 292 Cr.P.C. Thus the opinion cannot be now challenged by the Appellant. In view of the direct testimony of PW1, PW3 and the expert opinion, the conscious possession of the Appellant has been proved beyond reasonable doubt from which an inference qua the mensrea is clearly attributed. Further incriminating circumstances are required to be proved under Section 313 Cr.P.C. and not the inference drawn from the evidence on record. Reliance is placed on Alister Anthony Pareira vs. State of Maharashtra, 2012 CrLJ 1160.