Decided on February 16,2017

Allauddin Jallaudin Shaikh And Anr. Appellant


A.M. Badar, J. - (1.) The Appellants/Original Accused Nos. 1 and 2 by this appeal are challenging the judgment and order dated 3.5.2010 passed by the learned Adhoc Additional Sessions Judge at Sewree, Greater Bombay in Sessions Case No. 419 of 2009 thereby convicting both of them of the offences punishable under Section 489C read with Section 34 of the IPC. Both of them are sentenced to suffer RI for 5 years and to pay fine of Rs.5,000/each in default to undergo further RI for one year. They, however, were acquitted of the offence punishable under Section 120B of the IPC.
(2.) Facts in nutshell leading to the prosecution of accused persons can be summarised thus: On 31.3.2009, the secret informant of Police Constable P.W.1 Rajesh Malusare gave confidential information to him to the effect that at about 2.30 p.m. of 31.3.2009, two persons are coming to Gokul Hotel, Sewree for circulating counterfeit currency notes. P.W.1 Rajesh Malusare transmitted this information to Police Inspector Mr. Sandbhor of the DCB, CID, who in turn entrusted further inquiry in respect of the information to P.W.3Wilson Rodrigues, PSI of DCB, CID. Accordingly, two pancha witnesses including P.W.2Sunil Sorte were summoned to the office of DCB, CID, Mumbai. Pancha witnesses took personal search of police team so also police vehicle but nothing objectionable was found by them. Then pancha witnesses and the police team proceeded to Gokul Hotel, Sewree in a police vehicle. Police vehicle was stopped at a sufficiently long distance and by walk they all went to Gokul Bar and Restaurant situated near Sewree Railway Station. P.W.1 Rajesh Malusare, Police Constable, P.W.3 Wilson Rodrigues, PSI and secret informant sat inside the Gokul Bar and Restaurant whereas rest of the members of the raiding team and the pancha witnesses waited at a short distance from the said bar and restaurant. At about 2.15 p.m. of 31.3.2009, according to the case of the prosecution, both accused persons came at the said bar and restaurant and occupied the table. P.W.1 Rajesh Malusare then signalled raiding team including panchas who entered inside the Gokul Bar and Restaurant. Secret informant left the spot. Personal search of both the Appellants-Accused was taken. It is the case of the prosecution that from person of the Appellant-Accused No. 1 Allauddin Shaikh, 18 counterfeit currency notes of Rs.500/denominations each and 52 counterfeit currency notes of Rs.1,000/each came to be seized. Similarly, 7 counterfeit currency notes of denomination of Rs.500/each and 16 counterfeit currency notes of Rs.1,000/denomination each came to be seized from person of the Appellant-Accused No. 2 Mamruddin Shaikh. This seizure was effected vide panchanama Exhibit 20 in presence of pancha witnesses. The FIR Exhibit 17 was then lodged by P.W.1 Rajesh Malusare, Police Constable with R.A.K.Marg Police Station, Mumbai and the same came to be recorded by P.W.4-Yashwant Sawant, PSI. Accordingly, Crime No. 97 of 2008 for the offence punishable under Sections 498B, C and 120B read with Section 34 of the IPC came to be registered. After necessary investigation, accused persons were charge-sheeted and after due trial, by the impugned judgment and order dated 3.5.2010, they are convicted of the offence punishable under Section 489C read with Section 34 of the IPC. Both the Appellants are sentenced as indicated in opening paragraph of this judgment.
(3.) I heard Ms. Nasreen Ayubi the learned Advocate for both the Appellants at sufficient length. She argued that prosecution has failed to examine owner of Gokul Bar and Restaurant in order to prove alleged offence. In her submission, entire evidence of the prosecution is lacunic as even entry of arrival of both the pancha witnesses is not taken at the entry gate of the office of the police. She further argued that for proving the alleged offence, mere possession of forged or counterfeit currency notes is not sufficient and possession of forged/counterfeit notes is not an offence. The learned Advocate further argued that what is required to be proved for bringing home the guilt of the Appellants/Accused is, therefore, mensrea as having knowledge or reason to believe that what is possessed is counterfeit or fake currency notes is the mandate of law. This ingredient is missing from the evidence of the prosecution and, therefore, in submission of the learned Advocate for the Appellants, Accused are entitled to acquittal.;

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