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:: IN THE COURT OF THE SESSIONS JUDGE ::::: NALBARI ::

Present : Mrs. S. Begum. Sessions Judge, Nalbari.

SESSIONS CASE NO : 80/2010 u/s- 389-B/389-D IPC

State of Assam …………………Complainant

-Vs-

Taizuddin Ahmed........…………Accused person.

Appearance :-

For the prosecution: Mr. D. Barman, Public Prosecutor For the defence : Mr. T. Ahmed & P. Das Advocate. Date of argument : 20/06/2018. Date of Judgment : 16/08/2018.

J U D G M E N T

The prosecution case, in brief is that on 8/9/09 one Sri Dhiren

Rajbongshi lodged an ejahar alleging inter alia that on 7/9/09 while he had

withdrawn Rs.10,000/- from Niz Pakowa Post Office, he noticed out of said notes

7 numbers of 100 rupee denomination notes were fake notes. Immediately he

drew the attention of the Post Office authority and two officials of the Post Office

accepted the said complaint and the peon changed the money and kept the fake

notes. The matter was spread and reporter also arrived at the said place. On the

basis of the ejahar Belsor PS Case No.111/09 u/s-489-B/489-C has been

registered. Police force set into motion on receipt of the ejahar and ultimately at

the conclusion of the investigation police submitted charge-sheet against the

accused Taizuddin Ahmed u/s-489-B/489-C IPC. While accused entered into his

appearance in the court of learned C.J.M,Nalbari in GR Case No.952/09, the

learned C.J.M,Nalbari committed the case to the Sessions Court as the case is

exclusively triable by the court of Sessions.

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2. On appearance of the accused before the Sessions Court my learned

predecessor after getting prima facie material against the accused framed charge

against the accused u/s-489-B/489-C IPC and charge was read over to the

accused to which he pleaded not guilty and claimed to be tried. During the

pendency of the trial, the learned Public Prosecutor filed a an application for

arraying Pankaj Dutta also as an accused as per provision of 319 CrPC and my

learned predecessor allowed the said petition and arrayed Pankaj Dutta also as

an accused. Pankaj Dutta also appeared subsequently and charge was also

framed against him u/s-489-B/489-C and while charge was read over he pleaded

not guilty and claimed to be tried.

3. Prosecution to bring home the charge against the accused examined as

many as twenty witnesses. Defence case is of denial. However, the defence did

not adduce any evidence.

4. POINT FOR DETERMINATION.

(i) Whether the accused on 7th day of Sepetember,2009 on Monday gave

Dhiren Rajbongshi forged or counterfeit currency note of Rs.100/- denomination

(total Rs.700/-) out of total payment of Rs.20,000/- by knowing the same to be

forged and thereby committee an offence punishable u/s-489-B ?

(ii) Whether the accused on 07/09/09 possessed instruments or materials for

forging or counterfeiting bank-notes and thereby committed an offence

punishable u/s-489-D IPC ?

DECISION AND REASONS THEREOF

5. Argument put forwarded by learned counsel for both the sides is

considered by me. The evidence on record has also been scrutinized by me. Now

to arrive at a judicious decision let me discussed and appreciate the evidence.

6. First of all let me discuss the evidence of PW-1 Dhiren Rajbongshi who is

the informant of this case. He revealed that on 7/9/09 he drew Rs.10,000/- from

Niz Pakowa Sub Post Office from his postal account and that post master Pankaj

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Dutta handed over the money to him. At the time of counting the notes he

suspected 7 numbers of 100 denomination notes as fake and returned back the

said fake notes to the post master. He lodged the ejahar Ext-1. He was cross-

examined at length. During cross-examination he revealed that at the time of

handing over the notes to him Manoj and Mantu were present and they also

observed the notes. It is further revealed by him that the notes were suspected

to be forged and were returned back to the Post master Pankaj Dutta and he

changed the notes. He revealed that he cannot now remember the number of

the notes.

7. PW-2, Fazaruddin Ahmed during his evidence disclosed that the accused

Taizuddin borrowed Rs.1,000/- from him and he returned back the money on 2

occasions i.e on 3/9/09 and 5/9/09 by paying 500 rupee notes on each date. He

disclosed that the said notes which were returned back to him were fake notes.

the notes were kept by him at his house and during the month of Ramjan” while

he handed over the said money to his son for marketing then his son informed

him that the notes were fake and on inquiry he revealed before his son that

notes were given to him by accused. He revealed that he also informed at the

police station about the said matter. His statement was also recorded by

Magistrate and he exhibited Ext-2 as his statement before the Magistrate. He

disclosed that the accused confessed before the police that fake notes were

given to him by him (accused). He admitted that the money which were given to

him by accused was kept for 10/15 days at his house and during 10/15 days he

did marketing. He cannot say about the numbers of the notes which was seized.

He disclosed that he had Rs.5000/- on the date when he handed over money

Rs.800 to his son for marketing and that out of Rs.500/-amounting to Rs.800/-

was given to his son by him for doing marketing. He revealed that the notes

were seized from him by police. He during cross-examination admitted that he

received salary of Rs.7500/- on previous day of occurrence and that he did not

file any ejahar against the accused. But police came to his house knowing that

fake notes were there in his house. Fake notes were seized from the house. He

disclosed that eight numbers of fake notes were recovered from his house.

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8. PW-3, Bapdhan Das worked as peon of Gopal Bazar Post Office. It is

revealed by him that accused Taizuddin used to hand over the mail of Pakowa at

Gopal Bazar Post Office and on the date of occurrence he showed 7 numbers of

fake note to them and disclosed that those notes were found at Pakowa Post

Office. It is disclosed that post master after observing the notes returned back

the same to the accused. During cross-examination he revealed that Post master

of Niz Pakowa Post Office was Pankaj Dutta and that sometimes money in cash

were taken from Gopal Bazar Post Office to Pakowa Post Office. It is further

disclosed that he had no knowledge whether the said notes were fake and or not.

It is disclosed by him that Pakowa Post Office is under Gopal Bazar Sub Post

Office. He stated that he can not remember whether Pankaj Dutta came to the

Post Office while the fake notes were showed at Gopal Bazar Post Office.

9. PW-4, Hemanta Barman was the official of the Gopal Bazar Sub Post

Office during the occurrence. He revealed that accused Taizuddin was the

employee of Niz Pakowa Post Office and that on saturday accused Taizuddin

brought money from Gopal Bazar Post Office to Niz Pakowa Branch of Post Office

and the said money was handed over to post master by Taizuddin. Post master of

Pakowa coming to Gopal Bazar Sub Post Office informed post master of of said

Sub Post Office that some fake notes were found on Saturday at Gopal Bazar Sub

Post Office. The post master Niz Pakowa denied that any fake notes were sent to

Gopal Bazar Sub Post Office. This witness stated that his statement u/s-164 CrPC

got recorded by Magistrate and he exhibited Ext-3 as his statement and Ext-3(1)

as his signature.

During cross-examination it is denied by him that he did not state before

police that Taizuddin brought the money from Gopal Bazar Post Office and that

Gopal Bazar postmaster told that no fake note was brought from him. It is

disclosed by him that he did not see himself while the money was handed over to

Niz Pakowa postmaster by Taizuddin. It is however revealed by him that it was

the duty of Taizuddin to bring the money from Gopal Bazar Post Office to Niz

Pakowa Post Office. It is disclosed by him that he had no knowledge who brought

the notes on Monday. He also disclosed that if the post master of Gopal Bazar

post office gives requisition for money then Sub Post Office provided money to

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Niz Pakowa Post Office. But he was not present while the money was provided by

Gopal Bazar Post Office.

10. PW-5, Ranjan Deka, PW-11 and PW-12 Amal Dutta are not material

witnesses and they only heard about some fake notes received by customers

from Niz Pakowa Post Office.

11. PW-8, Dr. Amal Ch. Kalita of FSL, Kahilipra, Guwahati who examined the 8

numbers of fake notes of rupees 100 denomination in connection Belsor PS Case

No.111/09 which was sent to Director of FSL, Kahilipara for forensic examination

with a view to establish whether the fake notes in question were genuine or

counterfeit notes. He revealed that the Director received the notes from

SP,Nalbari vide memo Bo.PNB/crime-SR/2010/3764 dated 25/3/10. After

examining the Bank notes by laboratory technics as well as without use of

laboratory technics he found discrepancies in the form deshaped MG water

marks, inferior quality of ink and printing technology. He revealed that the Bank

notes of Rs.100 each bore prefix and six digital numbers 4AB661240 on each

bank note and on the basis of different discrepancies observed by him he

concluded that all Bank notes were counterfit Bank notes. He exhibited Ext-5 as

his report.

12. PW-9 Manoj Dutta testified that he has a grocery shop at Pakowa Chowk

near Post office. On the date of occurrence the informant drew money from post

office and suspected that some fake notes were given to him. He also went to

the place of occurrence after hearing about the incident and noticed the notes

which was suspected to be fake. It is revealed by him that he had no knowledge

whether the notes were fake or not.

13. PW-10 Mantu Ali during his evidence testified that he has Pan shop near

Pakowa Post Office. On the date of occurrence the informant drew some money

from post office and he complained that seven numbers of hundred rupee

denomination notes amongst withdrawn notes were fake. During cross-

examination this witness revealed that he did not observe properly whether the

notes were fake or not.

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14. PW-13, Anjan Choudhury is a reported witness.

15. PW-14, Jakir Hussain disclosed about seizure of 8 numbers of fake notes

by police in his presence but during his cross-examination he made it clear that

he had no knowledge where from the notes were seized by police and that he

did not see the seized notes at the time of seizure.

16. PW-15, Saroj Kr. Bhattacharjee who was Inspector Nalbari Postal West

Sub-Division at the relevant period testified that there is a Branch post office at

Niz Pakowa village under Nalbari Postal west Sub-division. He disclosed that

during that period Hitesh Barman was the Sub Post Master of Gopal Bazar Post

Office and he told that the accused persons informed him that at Niz Pakowa

Branch post office fake currency notes were found. This witness revealed that he

asked post master to hand over accused persons to police. He revealed that his

statement was recorded by Magistrate. He exhibited Ext-7 as his statement

before Magistrate. It is admitted by him that money transaction occurred from

Gopal Bazar post office to Niz Pakowa Branch post office. He admitted that Hitesh

Barman showed him the notes but he cannot say whether the notes were fake or

not.

17. PW-16, Hitesh Barman who was the Sub-Post master at Gopal Bazar post

office during the period 7/9/09 to 14/9/09 testified that he disclosed before the

Magistrate that on 7/9/09 at 1-30 pm post master Niz Pakowa Branch office Mr.

Pankaj Dutta and peon Taizuddin showed him seven numbers of 100 rupee

denomination duplicate notes and postal Inspector Saroj Bhatto verified the note

and returned the duplicate note to Taizuddin and Taizuddin left by taking notes.

He revealed during cross-examination that he had no knowledge whether the

notes were fake or not. He admitted that Niz Pakowa Branch post office used to

take money from their post office and that accused persons did not tell them that

fake notes were discovered amongst the note which were taken from their post

office.

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18. PW-17, Sonabar Ali disclosed during his evidence that the accused

persons were the employee of Niz Pakowa village Branch post office under Gopal

Bazar Sub-Post Office. About 5 years ago he heard about some incident of fake

note found at Niz Pakowa village Branch post office. He however disclosed that

he did not see any fake note.

19. PW-18, Hamidur Rahman stated during his evidence that on 8/9/09 from

one Sayad Fazal Ahmed of Sandhali village police seized 8 numbers of rupees

100 denomination notes in presence of him. He exhibited Ext-4 as the said

seizure list and Ext-4(4) as his signature. During cross-examination he revealed

that he had no knowledge whether the seized notes were fake or not.

20. PW-19,Tafiqul Haque disclosed about seizure of 8 numbers of rupees 100

denomination notes from Fazal Ahmed of Sandhali village in his presence vide

Ext-4. He also admitted that he had no knowledge whether those notes were

fake or not.

21. PW-7, Ikram Rusul also disclosed same thing to that of PW-19. He

exhibited Ext-4(2) as his signature in the seizure list.

22. PW-20, Tridip Kr. Dutta is the O/C who investigated the case testified that

on 8/9/09 the O/C Belsor PS informed him that at Niz Pakowa Post Office fake

notes were found. On receipt of the information he made GD entry bearing

No.147 dated 8/9/09 in the GD entry register of Belsor PS and thereafter he left

for Niz Pakowa Post Office. He could know at the Post Office that on 7/9/09 one

Sri Dhiren Rajbongshi while withdrew Rs.10,000/- from Niz Pakowa Post Office

then he found seven numbers of 100 rupees denomination fake. He returned

back the fake notes to the post master. The O/C testified that on the same date

an ejahar was received from Dhiren Rajbongshi at about 4 pm and O/C after

registering Belsor PS Case No.111/09 u/s-489-B/489-C/34 IPC entrusted him with

the charge of investigation. He visited the place of occurrence and prepared the

sketch map Ext-9. He recorded the statement of the witnesses. He revealed that

during interrogation postmaster Pankaj Dutta informed them that the seven

numbers of suspected fake notes were returned to the Nalbari Gopal Bazar Post

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Office. He recorded the statement of the witnesses and could know that those

notes were not handed over to the Gopal Bazar Post Office. It is also stated by

him that statement of some witnesses, namely, Hitesh Barman, Bapdhan Das,

Bijoy Sarma, Saroj Bhatta, Hemanta Barman, Sonabar Ali were recorded by

Judicial Magistrate. It is revealed by him that during investigation he could know

that Taizuddin the employee of Post Office obtained a loan of Rs.1000/- from

Fazal Ahmed who is an employee of Sandheli Post Office and while said Taizuddin

repaid the loan 8 numbers of notes amongst the note delivered by Taizuddin to

Fazal were found to be fake notes. Accordingly he visited the house of Fazal,

recorded the statement of Fazal and seized 8 numbers of 100 rupees

denomination suspected fake notes bearing same No. vide Ext-4. The notes were

sent to FSL Kahilipara for forensic examination. He disclosed that he being

transferred his successor I/O collected the FSL report and thereafter submitted

charge-sheet against Taizuddin u/s-489-B/489-C IPC.

23. It is admitted by him during cross-examination that no written ejahar was

lodged by Fazal. He revealed that the notes were seized from Fazal. He admitted

that seven numbers of fake notes about which there is narration in the FIR could

not be seized by him.

24. The learned defence counsel for the accused strenuously argued for the

acquittal of the accused. It is submitted that regarding the alleged incident of

handing over of 7 nos of forged/counterfeit 100 rupees notes to the informant

Dhiren Rajbonghi by the accused persons at the time of withdrawal of

Rs.20,000/- from the Nioz Pakowa Sub-Post Office on the date of occurrence

which is suspected as forged notes the I.O. Did not seize the notes. It is

submitted that for establishing a case u/s-489-B the prosecution must prove that

the currency notes or bank notes in question was forged or counterfeit but in the

instant case the prosecution failed to established the fact that the notes were

forged or counterfeit. It is submitted that the failure on the part of the I.O to

seize the forged bank notes from the accused is fatal to the prosecution case.

The learned defence counsel vehemently argued that without seizure of the

suspected fake notes alleged to be given to the informant and without

examination of the same by expert it cannot be held that the notes are forged

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only on the basis of evidence of informant and some of the prosecution

witnesses who only suspected that the notes were fake notes.

25. Regarding the allegation of accused Taizuddin handing over 8 nos of

forged or counterfeit 100 rupees notes to Fazaruddin Ahmed while returning back

the borrowed money alleged to be obtained from him it is vehemently argued

that supportive evidence is lacking regarding borrowing any money from

Fazaruddin by accused Taizuddin or handing over any money including the forged

8 nos of 100 rupees denomination notes by accused Taizuddin to Fazaruddin

Ahmed.

26. it is submitted that Fazaruddin did not lodge any ejahar regarding the

forged notes given to him by accused Taizuddin in spite of knowing the fact

about handing over such notes to him by Taizuddin.

27. In the back drop of the above arguments now let me decide whether the

prosecution has been able to bring home the charge against the accused. In a

case u/s-489-B the prosecution needs to prove the following ingredients.

(I) that the currency-note or bank-note in question was forged or counterfeit.

(II) That the accused sold to or bought or received from, some person, or

trafficked in, or used as genuine, such currency-note or bank-note.

(III) That when he did so he knew or had reason to believe that it was forged

or counterfeit.

28. The above essential ingredients u/s-489-B would show that prosecution

must prove that the currency notes or bank notes in question was forged or

counterfeit. In the instant case the evidence of informant Dhiren Rajbongshi

shows that on 7/9/09 amongst the notes handed over to him by post master

Pankaj Dutta (accused) at the time of withdrawal of Rs.10,000/- from Niz

Pakowa Post Office, he suspected 7 numbers of 100 rupees denomination notes

as fake notes and so he returned the same to the post master and post master

changed the notes. From the evidence of PW-9 Manoj Dutta it transpires that he

had seen the suspected forged notes which were given to the informant at the

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time of withdrawal of money from Niz Pakowa Post Office. But he cannot say

confirmly whether the notes were fake or not. The evidence of PW15 Saroj Kr.

Bhattarcharjee who is the Inspector of Nalbari Postal West Sub division shows

that the notes were shown to him by Hitesh Barman who is the Sub-Post Master

of Gopal Bazar Post Office and Hitesh Barman disclosed to him that the accused

persons informed him that the duplicate currency note/ forged notes were found

at Niz Pakowa Post Office. He however deposed that he had no knowledge

whether the notes were fake or not. From the evidence of the I/O it appears that

the said notes were not seized and examined by any forensic expert. So

prosecution has miserably failed to establish that the notes handed over to

Dhiren Rajbongshi on 7/9/09 by accused at Niz Pakowa Post Office are forged or

counterfeit notes.

29. Now let me come to allegation of handing over 8 nos of 100 rupees

forged/counterfeit notes to Fazaruddin Ahmed by accused Taizuddin. It transpires

from the evidence of Fazaruddin that he brought allegation that out of rupees

1000 which was handed over to him by Taizuddin on 3/9/09 and 5/9/09 for

repayment of loan of Rs.1000/- which was taken from him 8 nos of 100 rupees

denomination notes were forged/fake notes. He could know that the said notes

were fake while he handed over the money which was given to him by accused

Taizuddin to his son for marketing and police seized the said notes from him. PW-

6 Pranab Barman and PW-7 Ikram Hussain testified about the seizure of 8 nos of

100 rupees notes from Fazar by police vide Ext-4. The I.O also proved the seizure

of suspected fake 100 rupees notes (8 nos) from Fazal vide Ext-4. The notes

were sent to forensic FSL, Kahilipara and the scientific officer Amal Kalita of FSL,

Kahilipara established that the said 8 nos of notes are counterfeit notes. However

I.O did not disclose the fact about handing over forged note to Fazal by accused

Taizuddin was informed to him by Fazar. Fazar (PW-2) admitted during cross that

he did not lodge any ejahar. The I.O stated that from a secret information he

could know that 8 nos of forged notes were handed over to Fazal by accused

Taizuddin. So it is crystal clear that Fazal did not give any information to police

regarding any forged note handed over to him while repaying loan amount

alleged to be obtained from him by Taizuddin. It appears from Ext-2 that as per

the statement of Fazal recorded u/s-164 CrPC though he alleged that he could

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know on 6/9/09 about the fact that forged notes were there amongst the money

returned back to him yet he did not inform the matter to police and on 8/9/09

while police visited his house then only he handed over the notes to police.

Though the PW-2 Fazal Ahmed revealed that he received the fake notes from

Taizuddin while the loan of Rs.1000/-taken from him by the accused Taizuddin

was repaid by accused Taizuddin but none of the witnesses disclosed anything

corroborating the above evidence. If the PW-2 could know on 6/9/09 that the

notes handed over to him by accused Taizuddin are fake notes then he would

have definitely inform the matter to neighbouring persons but none of the

witnesses corroborated the fact that any money was borrowed by accused

Taizuddin from Fazar or that Taizuddin repaid the loan to Fazar. The accused

Taizuddin denied taking any loan from Fazal or handing over any amount towards

repayment of any loan. It appears from the cross-examination of PW-2 that on

the date of handing over Rs.800 to his son for doing marketing he had altogether

Rs.5000/- and out of the said money he handed over Rs.800 to his son and his

son disclosed that the notes were fake notes. It is also revealed by him that for

10/15 days the money was with him and that he did marketing in those 10/15

days. Nowhere it is stated that he kept separately Rs.1000 which was allegedly

handed over to him by the accused Taizuddin. He also received salary prior to the

date of occurrence. It appears from his evidence that money which he claimed

to be received from the accused Taizuddin was mixed with the other money total

amounting to Rs.5000/-. Evidence is lacking how he could identify the 8 nos of

100 rupee denomination note which was given to his son by him from the total

amount of Rs.5000/- which was in his hand as the money given to him by the

accused at the time of alleged repayment of loan.

30. Prosecution has miserably failed to establish that the money which was

handed over by him to his son and which was seized from him by police was the

money which was given to him by the accused Taizuddin. Apart from this the fact

of borrowing and repayment of money by Taizuddin itself remained not proved.

On the basis of the foregoing discussion I have no hesitation but to hold that

prosecution has miserably failed to prove that the 8 nos of 100 rupees notes

which were seized from Fazal are handed over to Fazal by accused Taizuddin.

Prosecution has miserably failed to established a case u/s-489-B against the

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accused persons beyond reasonable doubt. Both the accused are acquitted from

the charge u/s-489-B IPC.

13. Prosecution has miserably failed to prove the case against the accused

u/s-489-D IPC. Accordingly, accused persons are acquitted from the above

mentioned section.

31. The accused Taizuddin Ahmed and Pankaj Dutta will go on a fresh bail of

Rs.10,000/- with one surety of like amount u/s-437-A IPC assuring that he will

appear before the higher court as and when such court issue notice in respect of

any appeal or petition filed against the judgment and order of this court.

32. Judgment is pronounced at the open court in presence of the accused.

33. Judgment written in separated sheet be kept with record.

Given under my hand and the seal of this court on this the 16th day of

August/2018.

Send a copy of judgment to District Magistrate, Nalbari.

Dictated and corrected by me Session Judge, Nalbari. Sessions Judge, Nalbari. D. Roy (steno)

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A P P E N D I X

A. Prosecution witness

PW-1 Sri Dhiren Rajbongshi.

PW-2 Md. Fazaruddin Ahmed.

PW-3 Sri Bipdhan Das.

PW-4 Sri Hemanta Barman.

PW-5 Sri Ranjan Deka.

PW-7 Md. Ikram Rusul.

PW-8 Dr. Amal Ch. Kalita.

PW-9 Sri Manoj Dutta.

PW-10 Md. Mantu Ali.

PW-13 Sri Anjan Choudhury.

PW-14 Md. Jakir Hussain.

PW-15 Sri Saroj Kr. Bhattacharrjee.

PW-16 Sri Hitesh Barman.

PW-17 Md. Sonabar Ali.

PW-18 Md. Hamidur Rahman.

PW-19 Md. Tafiqul Haque.

PW-20 Sri Tridip Kr. Dutta.

B. Defence witness

NIL

C. Prosecution Exhibit

Ext-1 Ejahar.

Ext-3 statement u/s-164 CrPC.

Ext-4 seizure list.

Ext-5 FSL Report.

Ext-7 Statement before Magistrate.

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Ext-8

Ext-9 Sketch map.

D. Defence Exhibit.

NIL

Sessions Judge Nalbari