Sarvesh Pathak Kallu & Anr. v. State Of West Bengal

Ashim Kumar Roy, J.:— The subject matter of challenge in this criminal revision is an order passed by the Learned Additional District & Sessions Judge, lst Fast Track Court, Calcutta in connection with Sessions Case No. 2 of 2014 rejecting the petitioners prayer for discharge relating to the offences punishable under Sections 489B/489C of the Indian Penal Code.

The aforesaid trial is an outcome of S.T.F Police Station Case No. 13 of 2013 under Sections 120B/489B/489C of the Indian Penal Code. It is the case of the prosecution acting on a source information that some miscreants, were going to traffick huge quantity of counterfeit fake Indian Currency Notes, while purchasing some valuable articles, on August 27, 2013, the police officers kept a watch at different probable places. One of such place was a shop D.K Enterprise situated at 17, Biplabi Anukul Chandra Street, Kolkata 72. At the time of such surveillance, at about 1-45 hrs. the police noticed that a hot altercation was going on between the shopkeeper and the three miscreants, namely, Ash Mohammd, Neeraj Singh @ Bablu @ Neeraj Malik and Amit Kumar inside the said shop over the genuinity of the Currency Notes tendered by them against some purchase. Immediately on being identified by the source they were apprehended by the police officers and from their joint possession, Indian currency notes of Rs. 4.80 lakhs was recovered and found to be forged. It is the further case of the prosecution that those three persons were taken into custody and on closed interrogation they disclosed the name of these two petitioners and on being identified by them the petitioners were arrested from Sealdah Fly Over where they were standing and after they being apprehended from their joint possession a total sum of Rs. 8 lakhs were recovered and which were also found to be fake.

Following, the submission of charge sheet under Sections 489B/489C/120B of the Indian Penal Code, the case was committed to the court of sessions for trial and gave rise to Sessions Case No. 2 of 2014 and was posted before the Learned Additional District & Sessions Judge, lst Fast Track Court, Calcutta, when the petitioners invoking Section 227 of the Code of Criminal Procedure moved the court concerned for their discharge from the case, relating to the offences punishable under Sections 489B/120B of the Indian Penal Code.

It is well settled at the stage of framing of charge in a Sessions Triable Case, the court is to confine itself within the materials collected during investigation without going into the merits of such materials, as to the veracity of the same. At this stage it is not at all permissible for the court to undertake a fishing and roving enquiry to ascertain how far, the materials proposed to be relied upon by the prosecution against the accused are sufficient to warrant his conviction. The court would be fully justified to frame charge against the accused, if it is of the opinion, on consideration of the charge sheeted materials that there is a ground of presuming that accused has committed the offences for which charge sheet is submitted.

In the light of the above principle, now considering the materials collected during investigation, it is found that so far these petitioners are concerned the only materials against them is this that on being led and identified by the other three accused persons, namely, Ash Mohammd, Neeraj Singh @ Bablu @ Neeraj Malik and Amit Kumar, the police apprehended both of them, who were found standing near the Sealdah Fly Over and from their joint possession the fake Indian Currency Notes worth about Rs. 8 lakhs were recovered.

It may be noted beside the aforesaid materials, there was nothing further against them.

The learned counsel appearing on behalf of the petitioners vehemently contended that on the face of the aforesaid materials, the framing of charge against the petitioners for the offence punishable under sections 489B IPC, is wholly illegal and liable to be quashed.

From the side of the State, it is vehemently contended the facts of recovery of huge amount of fake currency notes from the possession of the petitioners, by itself leads to one and only one conclusion that they were possessing such huge quantity of fake currency notes intending to use the same as genuine. He also invited the attention of this court to the statement of these petitioners as well as to that of the other miscreants and vehemently contended that they have confessed that those fake notes were carried by them for the purpose of trafficking and utilizing the same as genuine.

Heard the learned counsel appearing on behalf of the parties. Perused the materials collected during investigation against the petitioners.

On the face of the allegation that the accuseds knowingly possessed forged counterfeit currency notes intending to use the same as genuine, the only offence made out is punishable under section 489C IPC, even withiout disputing the contention of the learned counsel for the State that possessions of huge counterfeit notes by the petitioners clearly indicates they possessed the same, not for any other purpose but for use the same as genuine. But by no stretch of imagination, on those materials, the case of the prosecution, they can also be charged under section 489B IPC, is not acceptable.

In this regard, the provision of section 489C IPC may be referred,

Whoever has in his possession any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

Therefore, if anybody possesses fake currency notes intending to use the same as genuine, he will only be liable for an offence under section 489C IPC and in order to make out an offence punishable under section 489B IPC, there must be some material to show that those fake notes were actually used or trafficked meaning thereby there was a transaction involving those forged notes.

There is no debate that an accused can be charged for criminal conspiracy to commit an offence, even when such offence was not actually committed. Since in this case, the prosecution has not been able to bring any materials against the petitioner, which can be legally translated into admissible evidence to support the case of conspiracy, no charge under section 120B IPC, can said to be made out.

In the result, the impugned order so far that relates to rejection of petitioners' prayer for discharge for the offence under section 489B/120B IPC stands quashed and this application is allowed and disposed of.

I have been informed by the Learned Public Prosecutor that September 10, 2014 is the date fixed for consideration of the question of framing of charge.

I direct the trial court without any delay to pass a final order as regards to the question of framing of charge. Immediately after framing of charge considering the gravity of the offence, the court must fix the date for recording of evidence if not before this side of the vacation positively such date must be fixed within two weeks after the reopening of the trial court after puja vacation. It is further directed that the trial must be proceeded strictly in terms of Section 309 CrPC and as a matter of abundant caution it is directed the trial must be continued on day-to-day basis and no adjournment shall be granted to either of the parties for any reason whatsoever, unless the court finds the same is necessary for ends of justice.

The Learned Public Prosecutor is directed to ensure the presence of the witnesses in the court on the dates fixed for their evidence.

Criminal Section is directed to deliver urgent Photostat certified copy of this order to the parties, if applied for, as early as possible.