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4/2005

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JUDGMENT

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) 2) Shri A.A. Shaikh, Learned Public Prosecutor for the CBI. 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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JUDGMENT

A.

Kartikeyan,

Accounts on Police,

Officer,

Reserve

Bank

of the

India,

Ahmedabad of

04.05.1989 Ahmedabad

with Branch. It

Superintendent

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 foreign for possessing as and trafficking in that the area. fake In

currency

genuine

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 Customs, in the office that of Umar Assistant Haji Abu Collector, Bera is

Porbandar

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, was obtained were from recovered the local and a

formal

opinion

State

Bank of India Branch and the said notes were advised to be fake. The said notes were sent to the Public Accounts letter Department, dated Reserve Bank of India vide

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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JUDGMENT

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 to fake the and therefore, Accounts the same were of

returned

Public

Department

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 has taking of been India filed were seized the for 120-B and the

chargesheet Court offence for

before and

competent trying read the with

cognizance under

punishable

Section

Section 489-B and 489-C of the Indian Penal Code.

2. Court

The Additional Sessions Judge, Fast Track 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. PW No. No. 1. PW-1

Name of witness

the Status of the witness

Exh. No.

Harichand Nanalal Cashier, Reserve Bank Exh.65. Chokhawala of India, Ahmedabad. Devendrakumar Dalabhai Gohil Kartikeyan A.N. Cashier, Reserve Bank Exh.67. of India, Ahmedabad. Accounts Officer, Exh.71. Reserve Bank of India, Ahmedabad.

2.

PW-2

3.

PW-3

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4.

PW-4

Girishbhai Superintendent, Sunderbhai Macwan Branch, Department.

Godown Exh.79. Custom

5.

PW-5

Ibrahimkhan Panch witness to the Exh.82. Mohmedkhan Pathan panchnama of search carried out at residential premises of accused Umar Haji Abu Bera. Basirkhan Hussainkhan Pathan Panch witness to the Exh.84. panchnama of search carried out at residential premises of accused Umar Haji Abu Bera. Exh.85.

6.

PW-6

7.

PW-7

Jalendu Chhaya

Milaprai Panch witness.

8.

PW-8

Chandrakant Manmohandas Parekh Satishbhai Jayantilal Bhatt

Panch witness.

Exh.87.

9.

PW-9

Deputy Manager, Foreign Exh.89. Exchange Cell, State Bank of India. Panch witness to the Exh.91. panchnama of seizure of ten currency notes of U.K. Pound from accused Umar Haji Abu Bera. Custom Inspector, Exh.93. Custom and Excise Department, Porbandar.

10. PW-10 Pravinchandra Kakubhai Karvadara

11. PW-11 Rajendrakumar Shantilal Raithatha

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12. PW-12 Moreshvar Joshi

Govind In-charge Custom Exh.99. Superintendent, Custom and Excise Department, Porbandar.

13. PW-13 Brijeshkumar Custom Inspector, Exh.101. Prembahadur Varma Custom and Excise Department, Porbandar. 14. PW-14 Harishbhai Valjibhai Patansha 15. PW-15 Mohmedshafi Gulammemon Bera 16. PW-16 Rajendrasingh Ramswarupsingh Panvar 17. PW-17 Chhatrasinh Surajmalsinh Vaghela Witness running the Exh.103. rationing grain shop at Memonvad, Porbandar. Resident of Porbandar. Memonvad, Exh.104.

Addl. Superintendent of Exh.114. Police, CBI Interpol Branch, New Delhi. Head Clerk, Special Exh.132. Branch, CBI, Ahmedabad.

18. PW-18 Rupmina Tarangesh Assistant Manager, Exh.144. Desai Reserve Bank of India, Ahmedabad. 19. PW-19 Balkishan Harfulsingh Sharma 20. PW-20 Hemshankar Keshavji Vyas ASI, CBI-SIU-IV, Delhi. New Exh.147.

Inspector, Customs Exh.153. Department, Porbandar.

21. PW-21 Nattharam Kalaram Head Police Constable, Exh.160 Macwan CBI, Ahmedabad. 22. PW-22 Gangaram Shinde Shivaji Inspector, Department, Mumbai. ACB Exh.161. CBI,

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23. PW-23 Ram Rachnaram

Murti Inspector, CBI-SIU(XI)

Exh.170.

24. PW-24 Vadakkan Mannoor Sub Inspector, Sanku Soman SIU(XI).

CBI- Exh.175.

Documentary Evidence:

Sr. Exh. No. No. 1. Exh.66

Description of the document

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) Original complaint of Account Officer, Reserve Bank of India, Ahmedabad, dated 04.05.1989. Original receipt of S.D. Pandya dated 04.05.1989. 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. Original complaint of Account Officer, Reserve Bank of India, Ahmedabad, dated 04.05.1989.

2.

Exh.68

3.

Exh.69

4.

Exh.72

5.

Exh.73

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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. Copy of extract of Godown Register. Letter No.VIII/25-1/CG/86 14.09.1988 for realization currency notes. dated of fake

7. 8.

Exh.80 Exh.81

9.

Exh.83

Panchnama of recovery of eight notes of U.K. Pounds, dated 19.05.1985. Panchnama of recovery of 152 notes of U.K. Pounds, dated 18/19.05.1985. 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. Panchnama of recovery of ten notes of U.K. Pounds, dated 18.05.1985. Letter dated 18.05.1985 addressed to the Assistant Collector of Customs (Anti Smuggling), Jamnagar by the Inspector of Customs (S.G.), Porbandar intimating about the source information. Search warrant under Section 105 of the Customs Act, of accused Usman Haji Abdul Karim Shivani, dated 18.05.1985. Copy of Inventory of goods lying at Customs Godown, dated 31.05.1985.

10. Exh.86

11. Exh.90

12. Exh.92

13. Exh.94

14. Exh.95

15. Exh.96

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16. Exh.97

Seizure memo seizure of 18.05.1985.

dated source

20.07.1990 of report dated

17. Exh.100

Search warrant under Section 105 of the Customs Act, of accused Umar Haji Abu Bera, dated 18.05.1985. 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 regarding forwarding of forged U.K. Pounds for expert opinion. Pound No.A-17-230957 (80 pounds). Pound No.A-57-231709 (1 pound). Pound No.A-23-570917 (36 pounds). Pound No.A-17-230957 (6 pounds). Pound No.A-57-231709 (1 pound). Pound No.A-23-570917 (1 pound). Pound No.A-17-230957 (2 pounds). Pound No.A-23-570917 (4 pounds). Pound No.A-57-231709 (4 pounds). Opinion / Report of Mr. David Hobden of Bank of England, London, dated 01.08.1990.

18. Exh.115

19. 20. 21. 22. 23. 24. 25. 26. 27. 28.

Exh.116 Exh.117 Exh.118 Exh.119 Exh.120 Exh.121 Exh.122 Exh.123 Exh.124 Exh.125

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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. 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. 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. Certified copy of entry dated 21.12.1989 on page no.22 of Malkhana Register and endorsement thereof. Seizure Memo of documents seized from Inspector, Customs by Inspector, CBI, dated 18.11.1990. 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. Letter dated 09.08.1989 addressed to the 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). 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.

30.

Exh.130

31.

Exh.133

32.

Exh.149 Exh.150 Exh.151 Exh.154

33.

34.

Exh.162

35.

Exh.163

36.

Exh.164

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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. 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. Seizure Memo of documents seized from Customs Officer by Inspector, CBI, dated 13.10.1991. Copy of FIR being dated 23.11.1989. RC-7/89-SIU(XI)

38.

Exh.171

39.

Exh.172

40.

Exh.176

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. Seizure Memo dated 18.12.1989 of the documents seized from the Collector, Customs (Preventive), Ahmedabad. 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. Seizure memo dated 21.05.1990 of the documents seized from D.G.M., State Bank of India, Ahmedabad Main Branch.

42.

Exh.178

43.

Exh.179

44.

Exh.180

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 appearing in on the the incriminating which he

circumstances

evidence,

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 for made the by CBI Shri has A. urged that on the

appearing complaint

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 course against of all the three accused. Haji During Anwar the

trial,

accused

Ahmed

Sunka

remain absent for a long time and therefore, nonbailable 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 against trial, that the charge two (Exh.50) and was framed the

the

remaining Usman

accused Abdul

during

accused

Haji

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 accused Customs panch the was counterfeit caught in in He pounds the and moreover, place two by the the

public of

Inspectors witnesses.

presence further

independent that the

submitted

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 for

Advocate the accused

Shri

H.R.

Palejiya that on

appearing

submitted

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 an and intends punishable to use the this same, he

commits

offence

under

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 Learned by the person. For this placed

submission,

Advocate

Shri

Palejiya

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 was be fake and therefore, PW-3 two no sealing in the his said

process

done. deposed

Likewise, that for

also, days

deposition,

currency notes were lying with the Reserve Bank of India and they did not find the same as fake. He further currency deposed notes that to on 16.09.1988 State agreed Bank in they of her sent India the for

the also

realization.

PW-18

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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JUDGMENT

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. and

After minutely examining the evidence, oral documentary, adduced by the prosecution and

after hearing Learned Advocates for the parties and considering following Court. the written arise for submissions made, of the this

issues

determination

(1)

Whether

the

prosecution that the

proves accused

beyond persons

reasonable

doubt

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 the of fake conspiracy currency or otherwise, of received Pound

notes

British

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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JUDGMENT

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. under: (1) (2) (3) (4)

My answers to the aforesaid issues are as

In Negative. In Negative. In Negative. As per final order.

Reasonings:

9. been

PW-1, Shri Harichand Nanalal Chokhawala has 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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JUDGMENT

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 this the the witness sealed same to the over to the CBI the CBI and said on

accordingly, letter with

handed cover

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 Cr.P.C., Exh.116, by he the Court under the Section pounds and 311 of the vide pounds

identified and

produced the

Exh.117

Exh.118

also

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JUDGMENT

Exh.119 to Exh.124 which were sent by this witness with his complaint.

12.

PW-4, Shri Girishbhai Sunderbhai Macwan of Godown, Customs Department, has

Superintendent

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 This after making has an entry that in in the the

register.

witness

testified

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 Exh.124 been produced as before the Court vide of Exh.116 which to has

muddamal in the

articles, Register

entry at

made

serial

no.33/85

(Exh.80)

13. 6,

PW-5, Ibrahimkhan Mohmedkhan Pathan and PWBasirkhan 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. Shri

PW-7, Shri Jalendu Milaprai Chhaya and PW-8, 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 hostile. the case of prosecution and turned

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 He the SBI was dealing letter in the

foreign

exchange.

identified

the

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 Cr.P.C., this he witness under 170 Section 311 of the

identified

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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JUDGMENT

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, at

Shri

Rajendrakumar Porbandar testified

Shantilal has that been on

Raithatha examined

Customs Exh.93.

Inspector, He has

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 to denomination their and as of 50 each and they i.e. of the

reported

superior per the

officer direction

Superintendent

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 that the in panchnama 170 Exh.86. of He further seized testified from the

all

notes

pounds

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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JUDGMENT

identified the muddamal pounds produced before the Court vide Exh.122 to Exh.124 which were seized

under the panchnama.

18. charge

PW-12,

Shri

Moreshvar at

Govind

Joshi has

Inbeen

Superintendent

Porbandar,

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 this recorded witness was in his present. and he

Subsequently,

recalled

identified the muddamal pounds Exh.116 to Exh.124 as the same which were deposited in the custom godown.

19. has been

PW-13, Shri Brijeshkumar Prembahadur Varma examined was He at Exh.101. as On 18.05.1985 Inspector Inspector this at Shri

witness

serving

Custom that

Porbandar.

testified

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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JUDGMENT

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. resident

PW-15, of

Mohmedshafi

Gulammemon is

Bera

at

Memonwad,

Porbandar,

examined

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 further through for their examination the said and opinion. were He sent on

testified the

that

pounds

British

Embassy

for

examination

12.07.1990 and the pounds were handed over to Peter Cargon, Drug Liaison Officer of British High

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JUDGMENT

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, to Ahmedabad Shri vide a

forwarding

letter

addressed

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. serving

PW-18, Smt. Rupmina Tarangesh Desai, who was 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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JUDGMENT

again letter

and

sent

to

the

State

Bank

of

India

with

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 further in the register that on page-22 entry (Exh.149). He

deposed

vide

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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JUDGMENT

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. serving

PW-22, Shri Gangaram Shivaji Shinde, who was as Inspector has that CBI, was been Shri in CBI, Mumbai at in ACB He Head sealed and a

Department testified Constable, packet

examined Nattharam handed by

Exh.161. Macwan,

Ahmedabad accepted

over

one

which

this

witness

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. serving

PW-23, as

Shri

Ram

Murti

Rachnaram,

who has

was been

Inspector

in

CBI-SIU(XI),

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JUDGMENT

examined

by

the

prosecution

at

Exh.170.

The

investigation of the case was handed over to this witness, Saroha. but He the chargesheet the was filed report by Shri

identified

source

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 relevant course the statements He of witnesses that and seized the

documents. of

testified the

during

investigation,

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. the

At the outset, it requires to be noted that 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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JUDGMENT

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. required Customs

Before the case is taken on merits, it is to Shri be noted M.G. that the Superintendent recorded of the

Joshi

(PW-12)

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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JUDGMENT

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 Kunjuvaveed Chougule (Supra). Raithatha laid down in the case Gulam of Kochakkadam Shaikh Patel Shri be

Thomas

(Supra), and oral Shri Bhana

Hussain Bhai PW-11 it

(Supra) From and the

Khalpa of

evidence M.G.

PW-12

Joshi,

can

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. statement Similarly, by PW-12, while he did recording not the to said the

explain

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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JUDGMENT

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 Case) Section Court on the Cases point and (Cri.) of 1715 (Parliament conspiracy I.P.C. The

Attack vide

criminal of

120-A

120-B

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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JUDGMENT

34.

Similarly,

mere

leveling

the

charge

of

conspiracy without mentioning how, where, when and which of the and conspirators for what hatched or the criminal

conspiracy

purpose

circumstances

warranting an inference of existence of conspiracy is not enough to bring the present persons to face the trial in the out criminal the case court. The prosecution the accused

should

make

against

persons. One cannot have the construction of a fine superstructure provisions without in foundation. Section Similarly, applies the to

contained

120-B

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 against criminal from the accused persons at to that they

allegation hatched the a

conspiracy April, 1985

Porbandar May,

during for

period

1985

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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JUDGMENT

fake and counterfeit. Similarly, there is nothing in the statement 108 into of a of the accused no.1 to recorded infer under he

Section entered accused

the

Customs

Act

that

criminal and he

conspiracy was party

with to the Under

other said the

persons

conspiracy

during

the

said

period.

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 British the Pound fake from currency the notes of no.3

accused

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 from in hatched to of during May'85, fake the was

period found

April'85

possession

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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JUDGMENT

36.

Since

the for to

issue the avoid be

nos.2 of

and

are and and and

interrelated, convenience findings, it and

sake

brevity of facts

repetition to

would

appropriate

discuss

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 the condition and further, It by also the without appears preparing from the more

seizure

report.

evidence

adduced

prosecution,

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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JUDGMENT

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 of the A.N, were said fake fake or counterfeit. of pound, After Shri of

receipt

notes

Kartikeyan

Account

Officer,

Reserve

Bank

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 Under the to another authority the by in open condition. / seizure Raithatha

circumstances, carried out

recovery Shri

proceeding

PW-11

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 of the currency notes found in the

possession

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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JUDGMENT

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 in AIR 1979 SC 1705, it has been held that presumption can only be of knowledge if the from notes mere were

possession

drawn

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 Even Haji in did the not know about of the

disputed

notes.

statement

accused

no.1 vide Exh.210 recorded under Section 108 of the Customs received Haji Anwar it Act, he specifically disclosed that he

the said notes of pound from one Ahmed for is the stated purpose by the of selling the same. in his

Nowhere

accused

no.1

statement Exh.210 that he had knowledge about the

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JUDGMENT

currency

notes Under

in

question 489-B

being of

fake I.P.C.,

or the

counterfeit.

Section

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. to So, it is that the the legal duty of the was

prosecution

prove

accused

no.1

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 requirement of of such law. circumstances As discussed is also the the

hereinabove,

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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JUDGMENT

documentary accused

or

circumstantial, any such

to

infer as

that

the

no.1

has

knowledge

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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JUDGMENT

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 supported Exh.83 the have of turned hostile and it not is

case

prosecution.

Even

assumed that there was a recovery of fake currency notes from the has house failed of to accused prove no.1, case but on the the

prosecution

its

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 (Supra) and therefore, it Manohar Amrut Satpudke 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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JUDGMENT

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 below Special separated Exh.33 Case vide in order dated Case order 07.07.2001 No.51/1995 with passed (New to

Sessions no

No.4/2005),

regard

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