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Ou vs The State Of Maharashtra on 4 January, 2013

Bombay High Court Ou vs The State Of Maharashtra on 4 January, 2013Bench: R. C. Chavan

Apeal 410-06.odt

Anand

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION rt

CRIMINAL APPEAL NO.410 OF 2006 ou

Sanjay Jaywant Gaikwad .Appellant Age:41 yrs, Occu:Nil

Residing at B/64 Parijat, Bandra Reclamation,

Mumbai.

C

V/s.

1. The State of Maharashtra .Respondents h

(At the instance of CBI, M.R.A.Marg Police Station, ig

C.R.No.355 of 1995)

2. Union of India

H

DCB, CID,

Central Bureau of

Investigation

WITH

y

CRIMINAL APPEAL NO.486 OF 2006 ba

Ramratan Shreenivas Soni .Appellant Age:42 yrs

Residing at 57/69, Bhuleshwar, om

3rd floor, Dr.A.M.Road,

Mumbai.

V/s.

B

1. Central Bureau of .Respondents Investigation

(Economic Offences Wing) Mumbai.

2. State of Maharashtra Page 1 of 90

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(At the instance of

M.R.A.Marg Police Station) WITH

rt

CRIMINAL APPEAL NO.710 OF 2006 Abdul Karim Ladsaheb Telgi .Appellant ou

Age:44 yrs, Occu:Business Residing at “Shirin Manzil”, 1st floor, Warden Road, Colaba, Mumbai.

C

V/s.

1. Central Bureau of .Respondents h

Investigation

(At the instance of M.R.A. ig

Marg Police Station,

C.R.No.355 of 1995

H

2. State of Maharashtra Through the Public Prosecutor, Appellate Side,

Mumbai.

y

Mr.I.A.Bagaria along with Mr.Vipul Jain and Mr.Perey Singh, Advocates, for the Appellants in ba

Cri.Appeal Nos.410 and 486 of 2006 Ms Apeksha Vora, appointed Advocate, for the Appellant in Cri.Appeal No.710 of 2006 Mr.P.D.Gharat, Special Public Prosecutor, for om

Respondent No.1 – CBI

Smt.U.V.Kejariwal, Additional Public Prosecutor, in Cri.Appeal Nos.410 and 710 of 2006 Mrs.G.P.Mulyekar, Additional Public Prosecutor, in Cri.Appeal No.486 of 2006 B

CORAM : R.C.CHAVAN, J. JUDGMENT RESERVED ON : 6TH NOVEMBER, 2012 JUDGMENT PRONOUNCED ON : 4TH JANUARY, 2013 Page 2 of 90

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JUDGMENT

1. These three appeals are directed against rt

conviction of the appellants by the learned ou

Special Judge, Mumbai for the offences punishable under Sections 120B, 255, 256, 258, C

259, 420 read with Section 511 of the Indian Penal Code and sentence of rigorous imprisonment h

for ten years with a fine of Rs.50,000/- each or ig

in default of payment of fine further rigorous imprisonment for a period of one year imposed H

upon them on the conclusion of trial of Sessions Case No.37 of 2005/156 of 1999 before him. The y

learned Judge also convicted Ramratan Shrinivas ba

Soni appellant in Criminal Appeal No.486 of 2006 for the offence punishable under Section 256 of om

the Indian Penal Code and sentenced him to suffer rigorous imprisonment for a period of seven years with a fine of Rs.10,000/- or in default of B

payment of fine further rigorous imprisonment for a period of three months. The appellant Abdul Karim Ladsaheb Telgi in Criminal Appeal Page 3 of 90

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No.710 of 2006 was also convicted for the offences punishable under Sections 258 and 259 rt

of the Indian Penal Code and sentenced to suffer rigorous imprisonment for a period of five years ou

with a fine of Rs.20,000/- on each count or in default of payment of fine further rigorous C

imprisonment for a period of six months on each count. Telgi was also convicted for the offence h

punishable under Section 255 of the Indian Penal Code and

ig

sentenced to suffer rigorous imprisonment for a period of ten years with a H

fine of Rs.50,000/- or in default of payment of fine further rigorous imprisonment for a period y

of one year. He was further convicted for the ba

offence punishable under Section 420 read with Section 511 of the Indian Penal Code and om

sentenced to suffer rigorous imprisonment for a period of three years with a fine of Rs.10,000/- B

or in default of payment of fine further rigorous imprisonment for a period of three months. The appellants Sanjay Jaywant Gaikwad and Ramratan Shrinivas Soni were acquitted of Page 4 of 90

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the offence punishable under Section 255 read with Section 34 of the Indian Penal Code. rt

Sanjay Gaikwad was also acquitted of the offence punishable under Sections 259 of the Indian ou

Penal Code and under Section 63(b) of the Bombay Stamps Act, 1958. The appellant Abdul Karim C

Telgi was acquitted of the offence punishable under Section 263 of the Indian Penal Code and h

under Section 63(a)(b) of the Bombay Stamps Act, 1958.

ig

Aggrieved by their conviction and sentences imposed upon them, the appellants are H

before this Court.

y

2. Facts which gave rise prosecution of the ba

appellants and relevant for the decision of these appeals are as under :- om

Appellant Abdul Karim Telgi was a licensed stamp vendor operating a shop in his B

own name. Through an employee, he approached Shri Manish Shantilal Parekh, a partner of M/s. Purnanand & Company, Advocates and Solicitors, for sale of Special Adhesive Stamps to be affixed Page 5 of 90

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on Lease Deeds and copies thereof. These Lease Deeds and copies were to be executed on behalf rt

of their clients M/s. Lalbhai Realty Ltd. and M/s. Arvind Fashion Limited. ou

3. The firm of lawyers handed over the C

Deeds for affixing Special Adhesive Stamps and offered to pay for them by Pay Orders drawn in h

favour of ‘Superintendent of Stamps’. Appellant Telgi’s

ig

representative declined to accept Pay Orders stating that Telgi’s firm had necessary H

credit with the State Government Stamp office and that after stamps were affixed, a bill will be y

raised. Accordingly, Telgi’s firm raised a bill ba

and demanded payment of the bill. Since Shri Manish Parekh did not find a receipt issued by om

stamp office for payment of stamp duty, he insisted on such receipt being produced. The B

receipt was, however, not produced and representative of Telgi also did not turn up. Shri Manish Parekh, therefore, asked his Clerk, Shri Rasiklal Shah to inquire about the issuance Page 6 of 90

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of Special Adhesive Stamps, who reported back that Special Adhesive Stamps affixed had not rt

been issued by the stamp office and that inquiries were being made with the Extended Sale ou

Counter at Bandra as to whether the stamps were issued at that counter. Ultimately, it was C

revealed that even the Extended Sale Counter at Bandra did not issue the stamps. Shri Manish h

Parekh then met the Superintendent of Stamps and appellant Telgi.

ig Shri Manish Parekh passed on the documents to the Superintendent of stamps H

for further inquiry. The documents were found carrying Special Adhesive Stamps effaced or y

canceled with the rubber stamps of Extended Sale ba

Counter at Bandra and signature of the proper officer of the said counter. Since the Extended om

Sale Counter reported that there was no such sale of Special Adhesive Stamps on the relevant B

date, Shri Mopalwar, the Superintendent of Stamps, Mumbai lodged a complaint on 2nd June, 1995 with M.R.A. Marg Police Station. This led to registration of C.R.No.355 of 1995. Page 7 of 90

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4. In course of investigation, after arrest of appellant Ramratan Soni, rubber stamps of rt

Extended Sale Counter at Bandra were seized from Soni’s residence. The stamped documents were ou

sent to the Deputy Controller of Stamps at Nashik for scientific investigation and on C

receipt of response, charge sheet was sent to the 33rd Court of Metropolitan Magistrate, h

Ballard Pier, Mumbai against the appellants and absconder Ankush.

ig Since Abdul Telgi and Sanjay Gaikwad too absconded in the mean time, the case H

of Ramratan Soni was committed to the Court of Sessions and after the absconders (except y

Ankush) were arrested, their case was also ba

committed to the Court of Sessions. om

5. In the mean time, investigation had been taken over by Crime branch, CID and ultimately by B

the CBI. These investigations revealed that appellant Abdul Telgi and Sanjay Gaikwad were in possession of Special Adhesive Stamps and had unauthorizedly dealt with those stamps and had Page 8 of 90

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indulged in cancellation or effacement of those stamps with forged rubber stamps and signatures. rt

All the stamps were found to be genuine. Two stamps were found to be previously used, by ou

erasing marks of previous use. After CBI obtained necessary sanction, a further charge C

sheet was filed. The case lodged by CBI was also duly committed to the Court of Sessions. h

6.

ig

Before framing of charge, appellant Abdul Telgi had prayed for discharge submitting H

that there could be no charge of counterfeiting when Special Adhesive Stamps on the documents in y

question were certified to be genuine. The ba

learned Judge rejected this prayer holding that the Special Adhesive Stamps could be said to be om

duly stamped only after being effaced by the proper officer and therefore, held that charge of B

counterfeiting had to be framed. The learned Special Judge for trial of cases filed by CBI, then charged the appellants of the offences punishable under Sections 120B read with Page 9 of 90

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Sections 255, 256, 258, 263 and 420 read with Section 511 of the Indian Penal Code and under rt

Sections 255 read with Section 34, 256, 258, 259, 263 and 420 read with Section 511 and ou

Sections 63(a) and 63(b) of the Bombay Stamps Act, 1958. Since the appellants pleaded not C

guilty to the said charges, they were put on trial.

h

7.

ig

In its attempt to bring home guilt of the appellants, the prosecution examined in all H

17 witnesses. Appellant Telgi denied his involvement in selling those stamps and blamed y

appellant Gaikwad for having attempted to sell ba

the stamps for which he in fact claimed to have given a cheque of Rs.16,58,500/- to Gaikwad. om

Gaikwad claimed that it was Telgi, who was the mastermind who had deliberately issued cheque in B

his name to implicate him in the case. Appellant Soni claimed that he had been falsely implicated at the instance of the other two appellants. After considering the prosecution Page 10 of 90

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evidence in the light of defence raised, the learned Judge held all the appellants guilty of rt

conspiracy of counterfeiting and forgery. He held that appellant Soni was in possession of ou

rubber stamps used for counterfeiting. He held Telgi alone guilty of selling unauthorizedly C

counterfeit stamps to Purnanand & Company in May, 1995 and thereby cheating the Company. He held h

Telgi too not guilty of re-using two fifty rupee ig

stamps by erasing the impressions about previous use. He then convicted and sentenced the H

appellants as aforementioned. Aggrieved thereby, the appellants are before this Court. y

ba

8. I have heard the learned counsel for the appellants, the learned Special Public om

Prosecutor for CBI and the learned Additional Public Prosecutors for the State. With the help B

of all of them I have gone through the evidence on record.

Page 11 of 90

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9. PW-1 Advocate Manish S. Parekh stated about his firm being approached by rt

representative of appellant Abdul Telgi’s office to get the necessary stamps expeditiously from ou

the stamp office. He stated that he had given blank Lease Deeds for getting stamped by C

mentioning in pencil the value of stamp on each document. The representative of Abdul Telgi h

returned the documents bearing Special Adhesive Stamps in

ig

the sum of Rs.9,12,920/- and Rs.7,46,030/- with copies bearing stamp of H

Rs.20/- each. The stamps were stamped with rubber seals of Extended Sale Counter at Bandra y

and cancellation in ink. The witness stated ba

that since the representative did not turn up with the receipt from stamp office, he asked om

Shri Rasiklal Shah to make inquiry with the stamp office and Shri Rasiklal Shah reported B

after inquiry that the stamps were not issued by the stamp office at Mumbai or Extended Sale Counter at Bandra. He then claims to have met Shri Mopalwar, Superintendent of stamps. He Page 12 of 90

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stated that the appellant Abdul Telgi was also there and admitted that it was a mistake on the rt

part of his employee and that the documents be treated as cancelled. He states that Shri ou

Mopalwar told him that Abdul Telgi would be writing a letter to the lawyers’ firm and against C

such letter, documents could be returned to Abdul Telgi, who would then pass on the h

documents for verification to the authorities. ig

Abdul Telgi issued a letter, a copy whereof is at Exhibit 16, the original being at Exhibit 16B. H

In cross examination, he denied that Exhibits 16A or 16B were fake and fabricated. He admitted y

that he did not himself file any complaint with ba

the police. He could not re-collect whether Abdul Telgi told Mopalwar that the documents had om

been got stamped from Sanjay Gaikwad, accused No.2 and an appellant before this Court. B

10. Exhibits 16, 16A and 16B, the original and copies of letter dated 1st June, 1995 issued by appellant Abdul Telgi categorically states Page 13 of 90

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that an employee of appellant’s firm procured assistance of appellant Sanjay Gaikwad for rt

getting the documents stamped and that Telgi had issued a cheque for Rs.16,58,500/- to appellant ou

Sanjay Gaikwad. He admitted that he was not entitled to sell Special Adhesive Stamps and C

that the bill was issued to the lawyers’ office by mistake. He then requested to lawyers’ office h

to return the stamped documents with his bill. ig

He stated that the lawyers’ office may then get documents stamped from the stamp office directly. H

11. PW-4 Radheshyam Laxmanrao Mopalwar was y

the Superintendent of stamps, who stated about ba

PW-1’s complaint to him and inquiries carried out by him. He states that he filed a report om

with M.R.A. Marg Police Station vide Exhibit 21. He identified letters at Exhibit Nos.16, 16A and B

16B and stated that Abdul Telgi had come to him with those letters. He stated that a copy of the cheque for Rs.16,58,500/- drawn in favour of appellant Sanjay Gaikwad was passed on to him by Page 14 of 90

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appellant Abdul Telgi which was handed over by him with his report. He admitted in his cross rt

examination that rubber stamps of the type shown to him were put in use for effacement at the ou

Extended Sale Counter at Bandra when stamping machine was not working. He stated that C

Extended Sale Counter at Bandra could accept cash payment only up to Rs.50,000/- from one h

person without any written permission from GSO, ig

Mumbai and that permission was required for sale of stamps over Rs.50,000/-. It appears that PW- H

1 had not dealt with Telgi directly and met Telgi only in PW-4’s office. Representative of Telgi, y

who dealt with the firm was one Rakesh Sharma. ba

12. PW-13 Police Constable Vinod Mugatrao om

Khandale’s evidence is about not finding a witness by name Rakesh Sharma, the alleged Sales B

Executive of appellant Telgi who had dealt with the transaction with M/s. Purnanand & Company. Interestingly Pws-9 and 10 who claim to have been working in Telgi’s office do not name any Rakesh Page 15 of 90

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Sharma as Sales Executive. rt

13. The learned counsel for the appellant Telgi submitted that this evidence is hardly ou

enough to connect appellant Telgi to sale of any counterfeit stamps. She submitted that if some C

employees of Telgi had indulged in a malpractice, requisite criminal intention could h

not be attributed to Telgi. She submitted that ig

in fact, Telgi had himself submitted documents to Mopalwar for enquiry. According to her, there H

was absolutely no evidence to show that Telgi had any knowledge that Special Adhesive Stamps sold y

to Purnanand & Company were obtained by his ba

employees wrongfully.

om

14. The learned Special Public Prosecutor submitted, and rightly in my view, that appellant B

Telgi cannot avoid his responsibility in face of his writings at Exhibits 16, 16A and 16B. He submitted that Telgi feigned ignorance and made it appear that he had nothing to do with the Page 16 of 90

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transaction. If that was so, there was no reason for Telgi to put up a pretence of issuing rt

a cheque in the name of appellant Gaikwad, which incidently was not encashed and has not surfaced ou

in the original. The evidence of PW-7 Mahesh Rammasubramanian Nath of the City Bank is about C

non encashment of a cheque whose copy is at Exhibit 23 drawn by appellant Abdul Telgi in h

favour of appellant Sanjay Gaikwad. Only ig

photocopy of the cheque has been produced and that too by appellant Telgi. H

15. As to Exhibits 16A, 16B and 16C, the y

learned counsel for the appellants relied on ba

Judgment in State of Maharashtra versus Pappu Suresh Salve @ Sunil Bharat Jadhav, reported in om

Confirmation Case No.3 of 2008 in Sessions Case No.47 of 2004, where a Division Bench had quoted B

from Judgment of Supreme Court in Pakkirisamy V. State of T.N. (1997)8 SCC 158 :- “It is a rule of caution that the court would generally look for an Page 17 of 90

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independentreliable corroboration before placing any reliance upon an extra-judicial confession. It is no doubt true that extra- rt

judicial confession by its very nature is rather a weak type of evidence and it is for this ou

reason that a duty is cast upon the Court to look for corroboration from other reliable evidence on record.”

C

16. Suffice it to observe in this behalf h

that appellant Telgi has not only not disputed Exhibits

ig

16A, 156B and 16C, but even in his statement under Section 313 of the Code of H

Criminal Procedure sought to distance himself from the transaction, by trying to blame y

appellant Gaikwad. This attempt of blaming ba

Gaikwad is clearly an afterthought and a lame attempt. Had he really issued any cheque to om

Gaikwad, as rightly observed by the learned trial Judge, Gaikwad would have encashed the B

cheque since amount involved was huge. Page 18 of 90

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17. The learned counsel for the appellants submitted that it would be wrong to bind the rt

appellant by what he had stated and for that purpose relied on Judgment in Pratap Misra And ou

Others V/s. State of Orissa, reported in (1977)3 Supreme Court Cases 41 where the Supreme Court C

has observed as under :- “In a criminal ease the accused h

was not bound by his pleading and it was open to the accused to ig

prove his defence even from the admissions made by the prosecution witnesses or the H

circumstances proved in the case.”

y

18. She further submitted that it was for ba

the prosecution to discharge its burden fully and cited Judgment in Dr. S. L. Goswami V/s. om

State of Madhya Pradesh, reported in (1972)3 Supreme Court Cases 22 where the Supreme Court has observed as under :- B

“6 … In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. Page 19 of 90

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Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any rt

the less. It is only when this burden is discharged that it will be for the accused to explain or ou

controvert the essential elements in the prosecution case which would negative it. It is not however for the accused even at C

the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the h

offence with which he is charged, and even if the onus shifts upon ig

the accused and the accused has to establish his plea, the standard of proof is not the same H

as that which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probabises y

the plea he will be entitled to the benefit of reasonable doubt.” ba

19. The learned counsel further submitted om

that since there was no direct evidence connecting appellant Telgi to the sale of stamps B

in question, and the evidence tendered fell too short of completing chain of circumstances as required to be established. She relied on Page 20 of 90

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Judgment in S.P. Bhatnagar v. State of Maharashtra and A.S.Krishnaswamy v. State of rt

Maharashtra, reported in (1979)1 Supreme Court Cases 535 where the Supreme Court has observed ou

as under :-

C

“22.In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first h

instance be fully established, and all the facts so established ig

should be consistent only with the hypothesis of the guilt of the accused. Again, the H

circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the y

one proposed to be proved. In other words, there must be a ba

chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of om

the accused and it must be such as to show that within all human probability the act must have been done by the accused. (See Hanumant Govind Nargundkar v. B

State of M.P. MANU/SC/0037/1952 : 1953CriLJ129 ; Palvinder Kaur v. State of Punjab MANU/SC/0038/1952 : 1953CriLJ154 and Charan Singh v. State of U.P. MANU/SC/0226/1959 : Page 21 of 90

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AIR1967SC520 ).

23. The principle that inculpatory fact must be inconsistent with the innocence rt

of the accused and incapable of explanation on any other ou

hypothesis than that of guilt does not mean that any extravagant hypothesis would be sufficient to sustain the C

principle, but that the hypothesis suggested must be reasonable. (See Govinda Reddy v. State of Mysore MANU/SC/0160/1958 : AIR1960SC29 ).”

h

ig

This has been re-iterated in Harendra Narain Singh & Others v. State of Bihar, H

reported in (1991)3 Supreme Court Cases 609. y

20. There can be no doubt about the ba

principles enunciated in the aforementioned Judgments. But here is a licensed stamp vendor, om

who knows that he does not have a license to sell Special Adhesive Stamps and yet sells them B

through his representative and cheekily raises a bill for the same, and on being caught on the wrong foot tries to shift the blame on others. Page 22 of 90

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As rightly submitted by the learned Special Public Prosecutor, if, as the appellant Telgi rt

contends, Gaikwad had procured the stamps and sold them through his firm, appellant should be ou

able to state from where did the stamps come. C

21. The learned counsel for the appellant h

further submitted that since in this case role of appellant

ig is not clearly established, appellant Telgi ought to get benefit of doubt. H

She relied on Judgment in Lakshmi Singh And Others V/s. State of Bihar, reported in (1976)4 y

Supreme Court Cases 394 where the Supreme Court ba

has observed as under :- “17 …. This is a case where it is om

not possible to disengage the truth from falsehood, to sift the grain from the chaff. The truth and falsehood are so inextricably mixed together that it is B

difficult to separate them. Indeed if one tries to do so, it will amount to reconstructing a new case for the prosecution which cannot be done in a criminal case.”

Page 23 of 90

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22. Since I do not see any difficulty in separating grain from chaff, there is no rt

question of reconstructing an altogether new case for prosecution.

ou

C

23. In fact in Joti Parshad V/s. State of Haryana, reported in AIR 1993 SUPREME COURT 1167 cited at Bar, the Supreme Court noted the facts h

as under :- ig

“2. Shri M.G. Devashayam, who was H

working as S.D.M., Jagadhari, noticed on 26th July, 1972 that some counterfeit court-fee stamps had been used on some court papers. He immediately conducted y

a raid and searched the box ba

containing judicial and non- judicial stamps belonging to the appellant who was a licensed stamp vendor. So far the present om

appellant is concerned he took the plea that he was a petty stamp vendor at Jagadhari and he was arrested on mere suspicion and that he purchased all the B

stamps judicial as well as non- judicial from the treasury at Jagadhari for sale to the public and that he had no link or any connection with the other accused.

Page 24 of 90

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The appellant specifically admitted the recovery but took the plea that he had purchased all the stamps from the treasury rt

at Jagadhari as genuine stamps. The stamps recovered from the appellant were sent to the Stamp ou

Expert at Nasik. P.W. 14, the Stamp Expert examined the same and identified the various court- fee stamps of various C

denominations which had been counterfeited. His evidence coupled with the report Ex.P.W. 14/A established beyond any h

shadow of doubt that some of the stamps

ig recovered from the appellant were counterfeit ones.” The Court then observed :- H

“4. The possession and sale of various counterfeit stamps by the appellant who was a stamp vendor y

is beyond dispute. Then the important question is whether he ba

had knowledge or reason to believe that the stamps which he had in possession and was selling were counterfeit of the stamps om

issued by the Government.

5. Under the Indian penal law, guilt in respect of almost all the offences is fastened either on the ground of “intention” or B

“knowledge” or “reason to believe”. We are now concerned with the expressions “knowledge” and “reason to believe”. “Knowledge” is an awareness on the part of the person concerned Page 25 of 90

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indicating his state of mind. “Reason to believe'” is another facet of the state of mind. “Reason to believe” is not the rt

same thing as “suspicion” or “doubt” and mere seeing also cannot be equated to believing. ou

“Reason to believe” is a higher level of state of mind. Likewise “knowledge” will be slightly on higher plane than “reason to C

believe”. A person can be supposed to know where there is a direct appeal to his senses and a person is presumed to have a h

reason to believe if he has sufficient cause to believe the ig

same. Section 26 I.P.C. explains the meaning of the words “reason to believe” thus:

H

26. “Reason to believe” – A person is said to have “reason to believe” a thing, if he has sufficient cause to believe that y

thing but not otherwise. ba

In substance what it means is that a person must have reason to believe if the circumstances are such that a reasonable man would, om

by probable reasoning, conclude or infer regarding the nature of the thing concerned. Such circumstances need not necessarily be capable of B

absolute conviction or inference; but it is sufficient if the circumstances are such creating a cause to believe by chain of probable reasoning leading to the conclusion or inference about the Page 26 of 90

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nature of the thing. These two requirements i. e. “knowledge” and “reason to believe” have to be deduced from various rt

circumstances in the case. In the context of the circumstances obtaining in the instant case ou

namely that the appellant admittedly was a licensed stamp vendor and he was found in possession of counterfeit stamps, C

the explanation of the accused also becomes relevant and important in assessing and appreciating whether he had such h

knowledge or reason to believe thatig the stamps were counterfeited. Admittedly he used to purchase stamps from the treasury and all such H

transactions are duly recorded in the official registers. There is absolutely no material whatsoever to show that the counterfeit y

stamps were in fact purchased by him from the treasury. A bare ba

allegation by way of an explanation by the accused- appellant that he purchased all the stamps including the om

counterfeit ones from the treasury appears on the face of it to be false, as he has neither produced registers maintained by him nor did he make even an B

effort to summon the treasury records. There is no material whatsoever even to probabilise such a plea. In these circumstances the only inference that can be drawn is that he had Page 27 of 90

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“knowledge” and “reason to believe” that the stamps which he had in his possession and which he was selling or offering to rt

sell, were counterfeit ones. These ingredients of the two provisions of law are fully ou

established. Therefore the convictions are correct.” C

24. The learned counsel for the appellant submitted that as per the report of expert, the h

stamps in question were not at all counterfeit. She,

ig

therefore, submitted that there was no question of drawing any parallel or holding that H

appellant could be attributed requisite knowledge that stamps were counterfeit. y

Judgment of this Court in Gulam Rabbani Gulam ba

Umam v. State, reported in 1956 BOMBAY 511 (AIR V 43 C 201 July) cited at bar need not be dealt om

with since the stamps in question in the case at hand were all found to be genuine. B

25. In fact, even in respect of two fifty rupee stamps, the learned trial Judge has Page 28 of 90

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exonerated the appellants as he found that requisite knowledge that those stamps were being rt

re-used could not be attributed. He had, therefore, answered Point No.6 in the Negative. ou

Thus, effectively all the stamps were found to be genuine. I shall shortly deal with the C

implications of the report of expert stating that stamps in question were genuine. The h

question whether stamps were genuine has to be ig

distinguished from the question whether H

appellant Telgi dealt with those stamps. y

26. Apart from the fact that the stamps in ba

question were supplied by Telgi’s representative as stated by PW-1, the evidence of officials om

from stamp office would rule out that any such stamps could have been or were sold from the B

General Stamp Office in Fort or the Extended Sales Counter at Bandra, Mumbai. Page 29 of 90

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27. PW-2 Sameer Madhavrao Kurtakoti was working as Additional Superintendent of stamps rt

and stated about working of stamp office. He stated that Special Adhesive Stamps were ou

available only at the stamp office and a customer intending to get document stamped with Special C

Adhesive Stamps was expected to tender the document before the stamp office and pay for the h

value of the stamps. Thereupon, the proper officer

ig

used to stamp the instrument with requisite Special Adhesive Stamps and efface H

stamps with stamping machine and put his dated signature on the stamps. y

ba

28. PW-3 Bhimaji Narayan Gosavi was working as Deputy Superintendent of Stamps at the om

Extended Sale Counter at Bandra. He stated that Special Adhesive Stamps worth Rs.16,58,500/- B

shown to have been sold on 29th May, 1995 were not sold from the Extended Sale Counter. He proved his report at Exhibit 19 and stated that with his report, necessary registers were handed Page 30 of 90

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over to Shri Mopalwar. His cross examination does not reveal anything to discredit what he rt

has stated.

ou

29. PW-5 Ismail Mohammad Patel was the Sales Supervisor authorized to act as proper officer C

at the Extended Sale Counter at Bandra on 29th May, 1995 and 30th May, 1995. He stated that the h

document at article 6 did not bear his signature ig

on the cancellation mark. He also stated that rubber stamps appearing on the Special Adhesive H

Stamp and below his forged signature were not those of his office. He denied that replacement y

for an impaired rubber stamp was got by him from ba

a private agency. He denied that Special Adhesive Stamps on documents at article 6 were om

issued by stamp office at Bombay. B

30. PW-6 Krishnaji Thakya Raut was working as a peon in the Extended Sale Counter at Bandra and stated about the practice followed in the office. He stated that he used to paste Special Page 31 of 90

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Adhesive Stamps on the documents. He states about record of handing over seals being kept in rt

the office and proved them at Exhibit Nos.26A and 26B.

ou

31. PW-16 Subhash Kashinath Patil was C

working as Clerk at Extended Sale Counter at Bandra. He identified entries in the Sale h

Register made on 29th May, 1995. Though he was cross examined

ig at length, his evidence would rule out sale of the disputed stamps from the H

Extended Sale Counter at Bandra on 29th May, 1995. In any case, as rightly submitted by the learned y

Special Public Prosecutor, there is no question ba

of any Special Adhesive Stamps being sold across the counter.

om

32. The evidence of Pws-2, 3, 5, 6 and 16 B

would rule out any sale of Special Adhesive Stamps from GSO or Extended Sales Counter. This, coupled with the eager explanation of appellant Telgi about complicity of Gaikwad and claim of Page 32 of 90

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having paid Gaikwad, would establish appellant Telgi’s knowledge of what was happening in his rt

office and therefore, his involvement. ou

33. This takes me to the question of complicity of other two appellants in the crime. C

The learned trial Judge has rightly concluded that appellants Gaikwad and Soni were not proved h

to have been involved in the transaction in May, ig

1995 when Special Adhesive Stamps were sought to be sold to Purnanad & Company. It may be useful H

to refer to the reports of Forensic Science Laboratory. The Forensic Science Laboratory to y

which the stamped documents were sent along with ba

specimen rubber stamp impressions reported that the rubber stamp impressions on stamps did not om

tally with the specimen impressions collected from the stamp office as well as those seized B

from appellant Soni. This report is at Exhibit

27. Exhibit 28 is the report from the Deputy Works Manager of India Security Press at Nashik which certifies that the stamps sent for Page 33 of 90

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examination were all genuine. The report at Exhibit 29 from the Forensic Science Laboratory rt

shows that

“Remnants of indented stamped ou

impression was deciphered underneath the present stamped impression by ESOA technique on the SPECIAL ADHESIVE stamp marked C

as Q1 and Q2 in Black ink of denomination Rs.50/- in exhibit 3 of page No.7 is shown in red below. ……….”

h

There was

remaining stamps.

ig

nothing to note in These are two stamps which respect of

H

are alleged to be re-used. Exhibit 30A is about specimen rubber stamp impression and rubber y

stamp impression. Exhibit 30B is again about ba

the stamps. Exhibit 30C is the report of the laboratory about the date rubber stamp and date om

rubber stamp impression of the date 29th May, 1995 and the expert reported that paper fibre disturbance etc. were not observed on the B

special adhesive stamp, except two stamps of Rs.50/- each. This ruled out complicity of appellant Soni in using rubber stamps with him Page 34 of 90

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for canceling the stamps in question. rt

34. Appellant Soni has been held guilty on two counts: first, participation in conspiracy ou

of counterfeiting with the other accused persons and secondly, having been in possession of rubber C

stamps for the purpose of counterfeiting. The evidence about seizure of those rubber stamps h

comes from PW-11 API Mukhedkar and PW-8 Sandesh Nikam.

ig

H

35. PW-11 API Baburao Tulshiram Mukhedkar states that on receiving instructions and y

certain documents, he recorded statement of Shri ba

Mopalwar – PW-4 and then registered an offence. He stated that in course of investigation, om

interrogation of appellant Abdul Telgi led to appellant Sanjay Gaikwad and investigation in B

respect of Sanjay Gaikwad led to appellant Ramratan Soni, without elaborating as to how this link was found. He states of interrogation of Ramratan Soni in course of which Ramratan Page 35 of 90

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Soni made a statement leading to discovery of rubber stamps from Ramratan Soni’s residence. rt

He proved panchanama at Exhibit 35. He stated that on completion of investigation he had ou

filed a charge sheet. In cross examination, he admitted that he did not seize the genuine C

rubber stamps used by Extended Sale Counter at Bandra. He stated that an electronic seal was h

in use at Extended Sale Counter at Bandra but ig

he did not seize that seal also. He denied that he had falsely implicated the appellant Sanjay H

Gaikwad. As to the discrepancy in time of panchanama at Exhibit 35, he stated that Exhibit y

35-A was completed around 12:55 hours. The ba

police party and panchas reached the residence of Ramratan Soni within 15 minutes. The om

discovery was made within five minutes of reaching Ramratan Soni’s house and Exhibit 35-B B

was scribed even about 25 minutes. He denied that there was any over writing in the time of commencing panchanama mentioned as 12:40 hours. About the over writing of 12:55 hours by 15:00 Page 36 of 90

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hours, he stated that initially he was to mention the time of commencement of panchanama and rt

completion of panchanama separately as well but, he changed his mind and decided to mention only ou

the time of completion of panchanama. Yet, as rightly pointed out by the learned counsel for C

the appellant, after adding fifteen, five and twenty five minutes to time of 12:55 p.m., the h

whole process would have been over at 13:40 hours (1:40

ig p.m.) and not 15:00 hours. Therefore, this explanation is absolutely made H

up.

y

36. PW-8 Sandesh Sadanand Nikam was a panch ba

at the Memorandum of statement made by appellant Ramratan Soni which led to discovery of rubber om

stamps from his residence vide Exhibits 35A and 35B. At Exhibit 35C are the impressions of the B

three rubber stamps seized which are a round seal having the words “Extended Sales Counter, Bandra, GSO, Bombay, a rectangular stamp having the words “Proper officer, Extended Sales Page 37 of 90

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Counter, Bandra, General Stamp Office, Bombay” and the third a date stamp. In cross rt

examination, the witness admitted that he was serving in an office of the Municipal ou

Corporation of Greater Mumbai situated next to M.R.A. Marg Police Station. He stated that he C

could not state whether the figures 1215 were changed to 1500 in the panchanama at Exhibit h

35B. He stated that as a Special Executive ig

Officer he had conducted 12 Test Identification Parades for M.R.A.Marg Police Station after 1997 H

i. e. after the panchanama was recorded and had appeared as witness in some cases. The change y

of time on the last page of Exhibit 35B is ba

apparent to naked eye.

om

37. The learned counsel for the appellant Soni, therefore, submitted that this evidence B

about recovery of rubber stamps, which are not shown to have been used for canceling stamps in question, is got up and should not have been believed by the learned trial Judge. As rightly Page 38 of 90

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submitted by the learned Special Public Prosecutor, if the prosecution wanted to concoct rt

evidence, it could have got rubber stamps matching those found on the document prepared ou

and seized them. Therefore, I would accept the evidence of the recovery of rubber stamps from C

Soni’s residence.

h

38. There is no plausible explanation from Soni about

ig

possession of three stamps, which were required to be used only by officials of the H

Extended Sales Counter at Bandra. When this evidence is read along with evidence about y

presence of Soni and Gaikwad at Telgi’s office, ba

the only inference that could be drawn is that these rubber stamps were meant to be used for om

unauthorized cancellation to the knowledge of Soni.

B

39. As I have referred to evidence about presence of Soni and Gaikwad at Telgi’s office, it may be useful to see what that evidence is. Page 39 of 90

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40. PW-9 Anil Jayram Bhambhani stated that he was working as Marketing Executive in rt

appellant Abdul Telgi’s firm which was dealing in Special Adhesive Stamps and that he used to ou

secure orders for all types of stamps. He stated that in all orders for Special Adhesive C

Stamps he used to collect the documents from the customers and deliver the documents in the h

office for getting them stamped. The stamped ig

documents used to be delivered by a boy to the customers, who used to collect the payments. H

The witness stated that he knew the appellant Sanjay Gaikwad and had seen him in the office of y

Abdul Telgi. He also stated that he knew ba

Ramratan Soni whom he had seen accompanying Sanjay Gaikwad in the office of Abdul Telgi. In om

cross examination, the witness admitted that he was working in the office of Abdul Telgi B

between October, 1995 and November, 1995. The learned counsel for the appellants, therefore, pointed out that obviously, he was not in the office in May, 1995 when the documents in Page 40 of 90

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question were stamped. In cross examination, the witness clarified that the reason for rt

remembering Ramratan Soni was that appellant Ramratan Soni delivered an envelope to Abdul ou

Telgi which contained stamps, and Telgi had immediately asked the witness to leave the C

office.

h

41. PW-10 Fatima Ibrahim Malam was working ig

as Telephone Operator in the office of appellant Abdul Telgi and identified the other two H

appellants as persons, who used to come to the office of appellant Abdul Telgi. The learned y

counsel for the appellants had some comment to ba

make about this witness being shown as a wanted co-accused in C.R.No.135 of 2002 registered with om

Bund Garden Police Station at Pune and her not being subsequently prosecuted. However, as B

submitted by the learned Special Public Prosecutor, this in itself may not be enough to reject the evidence.

Page 41 of 90

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42. The learned counsel for the appellants Soni and Gaikwad submitted that mere visits to rt

Telgi’s office cannot be enough to infer that the two appellants were involved in some conspiracy ou

with Telgi. The learned Special Public Prosecutor submitted that it is not mere visit C

which implicate the two appellants. He submitted first, that Soni was found in h

possession of rubber stamps of Extended Sales Counter.

ig Secondly, PW-9 Anil Bhambhani specifically stated that he had seen Soni H

delivering an envelop containing stamps to Telgi. As to appellant Gaikwad, the learned Special y

Public Prosecutor submitted that letters at ba

Exhibits 16A, 16B and 16C would show complicity of Gaikwad. In my view, as far as appellant om

Soni is concerned, the argument of the learned Special Public Prosecutor is unexceptionable. B

But as far as Gaikwad is concerned, if the story about issuance of cheque cannot be believed, mere visit of Gaikwad to Telgi’s office cannot be enough to hold him involved in conspiracy. Page 42 of 90

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43. The other evidence comprises of evidence of PW-12 PSI Dilip Hanmantrao Mane, who stated rt

about arrest of accused and filing of supplementary charge sheet. He also stated ou

about sending the documents to the Forensic Science Laboratory. He stated that he collected C

details about appellants Abdul Telgi and Sanjay Gaikwad’s stay at Hira International at Kolkata h

and produced relevant record. ig

44. PW-14 Rajkumar Ramprasad Shukla, H

Additional Superintendent of Police of Central Bureau of Investigation stated about taking over y

investigation of the case as per directions of ba

the Hon’ble Supreme Court. He stated of steps he took in course of investigation and filing of om

a charge sheet. He denied that the appellants were falsely implicated in the case. He sent B

letters to the Central Forensic Science Laboratory with his queries about certain specimen signatures and specimen writings. The result of analysis by PW-17 Shri S.L.Mukhi at Page 43 of 90

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Exhibit 75 is not conclusive. PW-14 obtained sanction to prosecute Abdul Telgi and Sanjay rt

Gaikwad under Section 63 of the Bombay Stamps Act, 1958. PW-15 Bhausaheb Jyoti Patil, ou

Superintendent of Stamps accorded this sanction. C

45. This brings me back to the questions whether any of the appellants could be held h

guilty of involvement in or in the conspiracy of counterfeiting

ig stamp or being possessed of material for counterfeiting stamps in the face of H

categorical finding by the expert that none of the stamps referred to him was a counterfeit. y

Article 6 shows that the expert has certified ba

all the stamps to be genuine. This question had been raised before the learned trial Judge at om

the time of framing of charge and he had held by his order on M.A.No.467 of 2005 dated 04.04.2005 B

that the use of such stamps amounted to counterfeiting. The reasons which prevailed upon the learned Judge are also stated by him in para 14 of the impugned Judgment. The learned Page 44 of 90

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Special Public Prosecutor argued that “Article 6 can be said to be counterfeited after it had been rt

given resemblance of another genuinely executed document with Special Adhesive Stamp with the ou

intention to practice deception on complainant PW-1 by resemblance by article 6 with a C

genuinely executed and stamped document”. Since the stamps themselves for found to be genuine, he h

added that “Theft of stamp from treasury is counterfeiting

ig but theft from person who has purchased stamp is not counterfeiting. Stamp H

gains the status of stamp only when the Government receives the value. Otherwise, it is y

a mere paper sheet. When stamp is paid for and ba

used once it is genuine. When it is reused it is counterfeit”. The argument of the learned om

Special Public Prosecutor is that a Special Adhesive Stamp becomes a genuine stamp only upon B

rubber stamping it with the seal of office issuing it and upon signature by proper officer, and therefore, though the stamps are certified to be genuine, since the cancellation was a Page 45 of 90

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forgery, the stamps became counterfeit. rt

46. In support of his arguments, he relied on the following authorities. In Superintendent ou

and Remembrancer of Legal Affirs v. Prafulla Kumar, reported in AIR 1954 CALCUTTA 277 (Vol. C

41. C.No.99) relied on by the learned Special Public Prosecutor a Division Bench of Calcutta h

High Court has observed as under in the context ig

of counterfeiting a trade mark :- H

“7. A point of some importance as to the nature and extent of the onus which lies on the prosecution in a case under y

Section 485, Penal Code was raised by the learned Advocate- ba

General appearing on behalf of the State. On the evidence, argued the learned Advocate- General, such onus as lay upon om

the prosecution had been amply discharged. Section 485 is in these terms:

“Whoever makes or has in his B

possession any dye, plate or other instrument for the purpose of counterfeiting a trade mark or property mark, or has in his possession a trade mark or property mark for the purpose of Page 46 of 90

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denoting that any goods are the manufacture or merchandise of a person whose manufacture or merchandise they are not, or that rt

they belong to a person to whom they do not belong, shall be punished with imprisonment of ou

either description for a term which may extend to three years, or with fine, or with both.” C

“It is seen that the first part of Section 485 is concerned with making or possessing any instrument for the purpose of h

counterfeiting a trade mark or property

ig mark, whereas, the second part is concerned with possession of a trade mark or property mark for the purpose of H

passing off. The respondent was charged with both, namely, possession of an instrument for counterfeiting, and possession of y

a trade mark for the purpose of passing off. Mr. Advocate-General ba

has argued that the general onus of making out the ingredients of the offence must rest upon the prosecution. This onus, according om

to him, could however be discharged by praying in aid the presumption which arises under Explanation 2 to Section 28, Penal Code. Section 28 is as B

follows:

“A person is said to “counterfeit” who causes one thing to resemble another thing, intending by means of that resemblance to practise Page 47 of 90

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deception, or knowing it to be likely that deception will thereby be practised.”

rt

Explanation 1 — It is not essential to counterfeiting that the imitation should be exact. ou

Explanation 2 — When a person causes one thing to resemble another thing, and the C

resemblance is such that a person might be deceived thereby, it shall be presumed, until the contrary is proved, that the h

person so causing the one thing to resemble

ig the other thing intended by means of that resemblance to practise deception or knew it to be likely that H

deception would thereby be practised.

“8. Having regard to Explanation 2, and in the facts of this case, y

the question is whether the ba

possession of the offending articles was for the purpose of counterfeiting the trade mark concerned. On the facts, there is om

no doubt that the respondent caused the labels and the cartons with the printing ‘Elixir Bromo Valerianate Gabail’ upon them, to resemble the genuine cartons and B

labels with the trade mark “Elixir Bromo Valerianate Gabail” and that the resemblance was such that a person might be deceived thereby. That being so, the respondent must be presumed to have intended by means of that Page 48 of 90

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resemblance to practise deception or to have known that it was likely that deception would thereby be practised. If in the rt

facts of this case Explanation 2 was applicable, it would follow that the respondent was guilty of ou

counterfeiting. In other words, his possession of the offending articles was for the purpose of counterfeiting the complainant’s C

trade mark. It would also follow that his possession of the counterfeit trade mark was for the purpose of passing off. h

Mr. Advocate-General argued that but for explanation 2 to Section ig

28, Penal Code, it would have been necessary for the prosecution to prove H

affirmatively that the respondent’s possession was for the purpose of counterfeiting a trade mark. Unlike Sections 482, y

486 and 487, Section 485 casts no onus upon the accused. Therefore, ba

the onus of establishing the elements of an offence under Section 485 must rest upon the prosecution. The question before om

me is not upon whom the onus is, but as to how that onus is to be discharged. Mr. Advocate- General’s argument is that the onus of proving either of the B

purpose mentioned in Section 485 is discharged by the prosecution establishing possession of the instrument for counterfeiting and the close resemblance between the counterfeit trade mark and the Page 49 of 90

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genuine trade mark, whereby deception becomes inevitable. In my view, the learned Advocate- General is right. I hold, rt

therefore, that the onus, of establishing the elements of the offence under Section 485 rests ou

entirely upon the prosecution, but that it can, in the circumstances disclosed in the case, successfully discharge that C

onus by praying in aid Explanation 2 to Section 28, Penal Code.”

“9. In the facts of this case, h

the point of law canvassed appears to be more academic than ig

real, for, the possession of the blocks as well as of a huge quantity of counterfeit cartons, H

in all the circumstances of this case, must give rise to the inference that such possession was either for the purpose of y

counterfeiting a trade mark or for the purpose of passing off, ba

as the case may be. It is to be observed, however, that the prosecution must call relevant evidence to lay the foundation om

for a presumption under Explanation 2. That presumption, whereby an intention to practise deception can be established, is rebuttable. The learned B

Magistrate, I am afraid, misread Explanation 2 to Section 28. Had he not done so, he would nave seen that there were facts in this case which raised a presumption, until the contrary Page 50 of 90

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was proved, that the respondent intended to practise deception. On that basis, and in the facts of this case, the learned rt

Magistrate was bound to find that the respondent’s possession of the block was for the purpose of ou

counterfeiting a trade mark and that his possession of the cartons with the counterfeit trade mark upon them was for the C

purpose of passing off.” h

47. In The State of Uttar Pradesh v. 1. Hafiz Mohd.

ig Ismail, reported in 1960 Cri.L.J.1017 (Vol. 61.C.N.362)= on which the H

learned Special Public Prosecutor relied, the Supreme Court has observed as under again in the y

context of counterfeiting a trade mark :- ba

“5. The main ingredients of counterfeiting as laid down in s. 28 are (i) causing one thing to om

resemble another thing, and (ii) intending by means of that resemblance to practise deception or (iii) knowing it to be likely that deception will thereby be B

practised. Thus if one thing is made to resemble another thing and the intention is that by such resemblance deception would be practised or even if there is no intention but it is known to be Page 51 of 90

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likely that the resemblance is such that deception will thereby be practised there is counterfeiting. Then comes rt

explanation 1 to s. 28 which lays down that it is not essential to counterfeiting that the imitation ou

should be exact. Ordinarily counterfeiting implies the idea of an exact imitation; but for the purpose of the Indian Penal C

Code there can be counterfeiting even though the imitation is not exact and there are differences in detail between the original h

and the imitation so long as the resemblance is so close that ig

deception may thereby be practised. Then comes the second Explanation which lays down that H

where the resemblance is such that a person might be deceived thereby it shall be presumed until the contrary is proved that y

the person causing one thing to resemble another thing was ba

intending by means of that resemblance to practise deception or knew it to be likely that deception would thereby be om

practised. This Explanation lays down a rebuttable presumption where the resemblance is such that a person might be deceived thereby. In such a case the B

intention or the knowledge is presumed unless the contrary is proved.”

“6. This analysis of S. 28 shows that there is no necessity of importing words like ‘colourable Page 52 of 90

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imitation’ therein. In order to apply it, what the Court has to see is whether one thing is made to resemble another thing, and if rt

that is so and if the resemblance is such that a person might be deceived by it there will be a ou

presumption of the necessary intention or knowledge to make the thing counterfeit, unless the contrary is proved. What the C

court therefore has to see is whether one thing has been made to resemble another thing. If it finds that in fact one thing has h

been made to resemble another it has further to decide whether the ig

resemblance is such that a person might be deceived. If it comes to the conclusion that the H

resemblance is such that a person might be deceived by it, it can presume the necessary intention or knowledge (until the contrary y

is proved) and counterfeiting would then be complete. therefore ba

the two things that were necessary to decide in this case were (i) whether the labels or wrappers on the soaps sold by the om

respondent were made to resemble the labels and wrappers of the genuine Sunlight and Lifebuoy soaps, and (ii) if they were so made to resemble, whether B

resemblance was such as might deceive a person If both these things were found the labels and wrappers in this case would be counterfeit and the necessary intention or knowledge would be Page 53 of 90

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presumed unless the contrary was proved.”

rt

48. The authorities may take the case of ou

prosecution to proof of counterfeiting rubber stamps used for canceling the Special Adhesive C

Stamps. I do not see as to how the stamps themselves certified by expert to be genuine h

would become counterfeit. ig

H

49. In Ramlal v. Emperor, reported in AIR 1921 Nagpur 86(2) on which the learned Special y

Public Prosecutor placed reliance, the Hon’ble ba

Judicial Commissioner has observed as under :- “The charge against the applicant was that he used as a genuine om

stamp, namely, a forest stamp of the value of Rs.2, on Exhibit P. VII and six stamps of the value of Rs.6.14 on Exhibit P. VI, knowing them to be counterfeit B

stamps used by Government for the purpose of Forest Revenue. The fraud disclosed by the evidence is a most ingenious one. The applicant used to issue Page 54 of 90

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licenses for cattle grazing in triplicate, in form given in Appendix C to Appendix XIV of the Central Provinces Forest rt

Manual. These licenses are paid for by stamps affixed to the licenses, and the applicant was ou

the licensed stamp vendor under the system of forest stamps described in the Forest Account Rules. He was licensed vendor of C

the third class; that is to say, he purchased supplies of stamps from the Treasury for cash and received a discount on his h

purchases of one-anna in the rupee.

ig The stamps, like the licenses, are in triplicate, and are pasted on the back of the licenses, so that the first part H

of the stamp is affixed to the third part of the license, the second portion of the stamp to the second part of the license y

and the third part of the stamp to the first part of the license. ba

After the stamps are affixed, the vendor tears off the second and third parts of the license bearing the first and second om

parts of the stamp and gives them to the purchaser, keeping the first part of the license with the third part of the stamp in the book of counterfoils which is B

periodically submitted to the Range Officer. The middle part is recovered, as far as possible, from the licensee by the Forest Checking Officer, while the license retains the third part Page 55 of 90

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bearing the first part of the stamp.

A licensee will not pay the fees unless he sees that the rt

proper number of stamps of the right value are issued to him on ou

his license and the stamps are distinctively marked so as to be easily recognised by illiterate persons, so it would seem as if C

fraud were impossible. But the applicant devised a scheme with the connivance of some Forest Checking Officer. The Forest Checking Officer necessarily gets h

hold of a number of middle part licenses and stamps.

ig As the middle part stamps are almost identical in appearance with the first part issued, the applicant, H

according to the prosecution case, got hold from some Checking Officer of some used middle part stamps and affixed them to the y

licenses issued to licensees, receiving payment in full as if ba

the stamp had been new. In this way the applicant received from the licensees money for stamps for which he had paid nothing to om

Government, or rather he sold the stamps twice and paid for them only once.

Not only have the two extra B

stamps on Exhibit P. 7 been altered with ink, and, three of the six extra stamps on ‘Exhibit P.6 been similarly altered, but all eight extra stamps have been cut down to the size of first Page 56 of 90

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part stamps, the middle part stamps being longer than first and third part stamps. This is not easy to follow from a rt

description, but a glance at Exhibit P.13 which contains a complete stamp in all three parts ou

will make it plain. The eight extra stamps on Exhibits P.6 and P.7 were thus counterfeited within the meaning of Section 28, C

Indian Penal Code, since they were middle part stamps altered to resemble first part stamps in order to deceive the licensees, h

who were in fact deceived. They were sold to the licensees as ig

genuine first part stamps, though they were in reality second part stamps altered to resemble first H

part stamps. Under Section 28, Indian Penal Code, the imitation need not be exact. The applicant’s conduct amounts to an y

offence under Section 260, Indian Penal Code, though he might have ba

been charged and convicted under other sections of the Penal Code. This disposes of the 6th and main ground of the revision om

application which is to the effect that as the stamps used were genuine Government stamps they were not counterfeit; as the Sessions Judge says, the facts B

are quite different from those, in Queen v. Shuroop Chunder Dass(1).”

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50. With respect I may say that the Hon’ble AJC ought to have convicted the accused therein rt

for the offence punishable under Section 262 of the Indian Penal Code for re-using the stamp ou

rather than counterfeiting. C

51. As compared to the first two cases, this h

Judgments may be nearer the facts of the present case.

ig

But here too, the accused had altered a genuine used stamp to make it resemble an unused H

stamp. In the case at hand, there is absolutely no alteration. There is nothing to show that y

the stamps had been previously used, including ba

the two fifty rupee stamps, which have received special attention of the learned trial Judge. om

For, if those stamps had been already used, they would have borne the mark of cancellation by the B

issuing office. All that can be said about those stamps is that they had been earlier pasted (and not affixed) elsewhere and were re- Page 58 of 90

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pasted on the document in question. rt

52. I am afraid that merely because ou

magnitude of fraud is huge, it would be wrong to convict the accused of any offence that the C

prosecution thinks of. There can be no doubt that criminals must be punished. But they have h

to be punished for offences well defined in the Code. It

ig

appears that the prosecution has mistaken a “Government stamp issued for the H

purpose of revenue” with a rubber stamp used by such stamp office. To examine the question as y

to which offence the accused have committed, it ba

may be useful to refer to provisions of Sections 28 (which has already been quoted in Judgment in om

AIR 1954 CALCUTTA 277) and 255 to 263, 415, 420, 463, 464, 468, 473 of the Penal Code which may B

be reproduced for ready reference as under :- “255. Counterfeiting Government stamp.- Whoever counterfeits, or knowingly performs any part of the process of counterfeiting, Page 59 of 90

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any stamp issued by Government for the purpose of revenue, shall be punished with imprisonment for life, or with imprisonment of rt

either description for a term which may extend to ten years, and shall also be liable to ou

fine.”

Explanation.- A person commits this offence who counterfeits by C

causing a genuine stamp of a different denomination.

“256. Having possession of instrument or material for h

counterfeiting Government stamp.- Whoever has in his possession any ig

instrument or material for the purpose of being used, or knowing or having reason to believe that H

it is intended to be used, for the purpose of counterfeiting any stamp issued by Government for the purpose of revenue, shall be punished with imprisonment of y

either description for a term ba

which may extend to seven years, and shall also be liable to fine.”

“257. Making or selling om

instrument for counterfeiting Government stamp.-Whoever, makes or performs any part of the process of making, or buys, or sells, or disposes of, any B

instrument for the purpose of being used, or knowing or having reason to believe that it is intended to be used, for the purpose of counterfeiting any stamp issued by Government for Page 60 of 90

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the purpose of revenue, shall be punished with imprisonment of either description for a term which may extend to seven years, rt

and shall also be liable to fine.”

ou

“258. Sale of counterfeit Government stamp.- Whoever, sells or offers for sale, any stamp which he knows or has reason to C

believe to be a counterfeit of any stamp issued by Government for the purpose of revenue, shall be punished with imprisonment of either description for a term h

which may extend to seven years, and shall also be liable to ig

fine.”

“259. Having possession of H

counterfeit Government stamp.- Whoever has in his possession any stamp which he knows to be a counterfeit of any stamp issued by Government for the purpose of y

revenue, intending to use, or ba

dispose of the same as a genuine stamp, or in order that it may be used as a genuine stamp, shall be punished with imprisonment of om

either description for a term which may extend to seven years, and shall also be liable to fine.”

“260. Using as genuine a B

Government stamp known to be a counterfeit.- Whoever uses as genuine any stamp, knowing it to be counterfeit of any stamp issued by Government for the purpose of revenue, shall be Page 61 of 90

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punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.” rt

“261. Effacing, writing from substance bearing Government ou

stamp, or removing from document a stamp used for it, with intent to cause loss to Government.- Whoever, fraudulently or with C

intent to cause loss to the Government, removes or effaces from any substance, bearing any stamp issued by Government for the purpose of revenue, any h

writing or document for which such stamp has been used, or ig

removes from any writing or document a stamp which has been used for such writing or H

document, in order that such stamp may be used for a different writing or document, shall be punished with imprisonment of y

either description for a term which may extend to three years, ba

or with fine, or with both.” “262. Using Government stamp known to have been before used.- om

Whoever, fraudulently or with intent to cause loss to the Government, uses for any purpose a stamp issued by Government for the purpose of revenue, which he B

knows to have been before used, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

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“263. Erasure of mark denoting that stamp has been used – Whoever, fraudulently or with intent to cause loss to rt

Government, erases or removes from a stamp issued by the Government for the purpose of ou

revenue, any mark, put or impressed upon such stamp for the purpose of denoting that the same has been used, or knowingly has C

in his possession or sells or disposes of any such stamp from which such mark has been erased or removed, or sells or disposes h

of any such stamp which he knows to have been used, shall be ig

punished with imprisonment of either description for a term which may extend to three years, H

or with fine, or with both.” “415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly y

induces the person so deceived to deliver any property to any ba

person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit om

to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that B

person in body, mind, reputation or property, is said to “cheat”.” Explanation.- A dishonest concealment of facts is a deception within the meaning of Page 63 of 90

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this section.

“420. Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby rt

dishonestly induces the person deceived to deliver any property ou

to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or C

sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may h

extend to seven years, and shall also be liable to fine.” ig

“463. Forgery.- Whoever makes any false documents or false H

electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim y

or title, or to cause any person ba

to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be om

committed, commits forgery.” “464. Making a false document.- A person is said to make a false document or false electronic record –

B

First – who dishonestly or fraudulently –

(a) makes, signs, seals

or executes a document or part of a document;

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(b) makes or transmits

any electronic record or part of any electronic record;

(c) affixes any rt

electronic signature on any electronic record;

ou

(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, C

with the intention of causing it to be believed that such document or part of document, electronic record or electronic h

signature was made, signed, sealed, executed, transmitted or ig

affixed by or by the authority of a person by whom or by whose authority he knows that it was H

not made, signed, sealed, executed or affixed; or

Secondly – Who, without

lawful authority, dishonestly or y

fraudulently, by cancellation or otherwise, alters a document or ba

an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature om

either by himself or by any other person, whether such person be living or dead at the time of such alteration; or

B

Thirdly – Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic Page 65 of 90

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record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised rt

upon him, he does not know the contents of the document or electronic record or the nature ou

of the altercation.”

“468. Forgery for purpose of cheating.- Whoever commits C

forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of h

either description for a term which may extend to seven years, ig

and shall also be liable to fine.”

H

“473. Making or possessing counterfeit seal, etc., with intent to commit forgery punishable otherwise.- Whoever makes or counterfeits any seal, y

plate or other instrument for ba

making an impression, intending that the same shall be used for the purpose of committing any forgery which would be punishable om

under any section of this Chapter other than section 467, or, with such intent, has in his possession any such seal, plate or other instrument, knowing the B

same to be counterfeit, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

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53. It may be seen that Sections 255 to 263 refer to “stamp issued by Government for the rt

purpose of revenue”. It is such stamp which has to be shown to be counterfeited for attracting ou

penal provisions of these sections. The argument that a Special Adhesive Stamp becomes a C

genuine stamp only upon it being rubber stamped by issuing office has its own dangers which h

prosecution ought to realise. In that case, a person in

ig possession of counterfeit stamps resembling Special Adhesive Stamps issued for H

the purpose of revenue may not at all be prosecuted for the offence punishable under y

Section 259 of the Indian Penal Code without the ba

stamp being effaced. Effacement of a stamp to prevent re-use cannot be included as a part of om

the process of production or printing or creation of such stamps. Therefore to term as B

counterfeits, stamps certified by expert to be genuine only because effacement is a forgery would be virtually re-writing the law. Judicial creativity cannot be allowed to run amok merely Page 67 of 90

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because the situation confuses the investigator and the prosecutor. It cannot be overlooked that rt

there is no complaint either from the Security Printing Press or the treasury about theft of ou

any such stamps at least in the record of this case. Failure of appellants to show the source C

from which they got these stamps does not make the stamps counterfeit or even stolen property. h

54.

ig

What has been done in this case is that genuine Special Adhesive Stamps were H

fraudulently obtained and then were impressed with forged rubber stamp of the Extended Sales y

Counter and Proper officer at Bandra. Since ba

there is no complaint of theft or misappropriation, as far as obtaining Special om

Adhesive Stamps fraudulently, no charge could be made, since inability to satisfactorily explain B

source is itself not an offence. However, putting rubber stamp thereon would amount to forgery by making false document as defined in item (a) of first Clause of Section 464 of the Page 68 of 90

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Indian Penal Code for the purpose of cheating punishable under Section 468 of the Indian Penal rt

Code, and not offences punishable under Sections 256, 258 and 259 of the Code. ou

55. When a specific objection had been C

raised, it was necessary for the learned trial Judge and the prosecution to examine the issue h

threadbare. Criminal trials are not meant for ig

dealing with any wrong but dealing with specific offences as defined in relevant law. H

56. The learned Special Public Prosecutor y

thereupon submitted that in that case, the Court ba

may alter the conviction of appellants to one under appropriate provision of law. He relied on om

the following Judgments to support his contention that such a course is open to this B

Court.

57. In K. Prema S. Rao and another v. Yadla Page 69 of 90

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Srinivasa Rao and others, reported in 2003 CRI.L.J. 69 relied on by the learned Special rt

Public Prosecutor the Supreme Court has observed as under :-

ou

“22. Mere omission or defect in framing charge does not disable the Criminal Court from C

convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal h

procedure has ample provisions to meet a situation like the one ig

before us. From the Statement of Charge framed under Section 304B and in the Alternative Section H

498A, IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under Section 306, y

IPC existed in the case. The mere omission on the part of the trial ba

Judge to mention of Section 306, IPC with 498A, IPC does not preclude the Court from convicting the accused for the om

said offence when found proved. In the alternate charge framed under Section 498A of IPC, it has been clearly mentioned that the accused subjected the deceased to B

such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 of Cr.P.C. take care of such a situation and safeguard the powers of the criminal court to Page 70 of 90

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convict an accused for an offence with which he is not charged although on fats found in evidence, he could have been rt

charged for such offence. Section 221 of Cr.P.C. needs reproduction:-

ou

221. Where it is doubtful what offence has been committed. – (1) If a single act or series of acts C

is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with h

having committed all or any of such offences, and any number of ig

such charges may be tried at once; or he may be charged in the alternative with having committed H

some one of the said offences. (2) If in such a case the accused is charged with one offence, and y

it appears in evidence that he committed a different offence for ba

which he might have been charged under the provisions of Sub- section (1), he may be convicted of the offence which he is shown om

to have committed, although he was not charged with it.

23. The provision of Sub-section (2) of Section 221 read with Sub- B

section (1) of the said Section can be taken aid of in convicting and sentencing the accused No.1 of offence of abetment of suicide under Section 306 of IPC along with or instead of Section 498A Page 71 of 90

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of IPC.

24. Section 215 allows criminal court to ignore any error in stating either the offence or the rt

particulars required to be stated in the charge, if the accused was ou

not, in fact, misled by such error or omission in framing the charge and it has not occasioned a failure of justice. See Section C

215 of Cr.P.C. which reads:-

215. Effect of errors – No error in stating either the offence or the particulars required to be h

stated in the charge, and no omission to state the offence or ig

those particulars, shall be regarded at any stage of the case as material, unless the accused H

was in fact misled by such error or omission, and it has occasioned a failure of justice.

25. As provided in Section 215 of y

Cr.P.C. omission to frame charge under Section 306 IPC has not ba

resulted in any failure of justice. We find no necessity to remit the matter to the trial om

court for framing charge under Section 306 IPC and direct a retrial for that charge. The accused cannot legitimately complain of any want of B

opportunity to defend the charge under Section 306 IPC and a consequent failure of justice. The same facts found in evidence, which justify conviction of the appellant under Section 498A for cruel treatment of his wife, make Page 72 of 90

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out a case against him under Section 306 IPC of having abetted commission of suicide by the wife. The appellant was charged rt

for an offence of higher degree causing “dowry death” under Section 304B which is punishable ou

with minimum sentence of seven years rigorous imprisonment and maximum for life. Presumption under Section 113A of the C

Evidence Act could also be raised against him on same fats constituting offence of cruelty under Section 498A IPC. No h

further opportunity of defence is required to be granted to the ig

appellant when he had ample opportunity to meet the charge under Section 498A IPC.” H

58. In Shamrao Shivram Akhade and another v. State of Maharashtra, reported in 1974 y

ba

CRI.L.J.86 (V 80 C 27) on which reliance was placed by the learned Special Public Prosecutor, om

this Court has observed as under :- “11. In the case of Chainsukhlal Punamchand Meher v. The State of Maharashtra MANU/MH/0199/1968 : B

(1969)71 BOM LR 390, my brother Tulzapurkar J. had referred to a Division Bench consisting of myself and my brother Kamat J. the question as to whether in a case falling under Sections 236 Page 73 of 90

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and 237 of the Code of Criminal Procedure, it was permissible for a Criminal Court to alter the conviction from an offence which rt

is of lesser gravity to an offence of greater gravity. After considering the various ou

authorities on the point and having regard particularly to the provisions of Sections 236 and 237 of the Code of Criminal C

Procedure, we held that in a case falling under these sections, it was permissible for a Criminal Court to alter the conviction h

from an offence which is of lesser gravity to an offence of ig

greater gravity, provided that prejudice is not caused to the accused thereby. The view taken H

by us was that the only limitation that can be read into Section 237 of the Code of Criminal Procedure, having regard y

to its plain language and the Supreme Court decisions discussed ba

by us in that judgment was the overriding consideration of prejudice to the accused. Though the question of altering the om

conviction from that of a particular offence of lesser gravity to one of greater gravity does not arise in the present case, the said decision has been B

cited for the purpose of showing the manner in which the provisions of Sections 236 and 237 of the Code of Criminal Procedure should be interpreted and applied. In my opinion, as Page 74 of 90

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far as the offence of abetment of kidnapping by the 1st accused is concerned, the facts and the evidence bring it within Section rt

237 of the Code of Criminal Procedure. The facts of the prosecution case against the 1st ou

accused were of such a nature that it was doubtful whether he had committed the substantive offence of kidnapping itself, or C

the offence of abetment of kidnapping. He could therefore, by virtue of the provisions of Section 236 of the Code of h

Criminal Procedure have been charged with both these offences. ig

He was in fact, not so charged and, in those circumstances, the provisions of Section 237 of the H

Code of Criminal Procedure are attracted. I therefore hold that he can be convicted of the offence of abetment of kidnapping y

with which he might have been charged under the provisions of ba

Section 236 of the Code of Criminal Procedure, although he was not charged with it, subject of course to this that the first om

accused must be shown not to be prejudiced in any manner thereby. As already stated by me above, there is, to my mind, no other evidence, either by way of B

additional witnesses, or by way- of further evidence elicited from the same witnesses, which could have been led if the charge of abetment had been framed against the first accused and, in those Page 75 of 90

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circumstances, the fact that he was not so charged and is now sought to be convicted of the offence of abetment of kidnapping rt

cannot cause him any prejudice.

12. Two subsidiary points were ou

sought to be raised by Mr. Naik. the learned Counsel appearing for accused Nos. l and 3 before me. and they were, first, that to C

convict accused No. 1 of the offence of abetment of kidnapping by accused No. 2. who has been convicted by the trial Court not of the substantive offence of h

kidnapping but only of the offence of abetment of kidnapping ig

and who is not before the Court in this appeal, would not be fair, and the Court should not, H

therefore, alter the conviction of the first accused as is sought to be done. Secondly, it was sought to be contended by Mr. y

Naik that whatever may be the powers of the trial Court, the ba

appellate Court cannot resort to the provisions of Sections 236 and 237 of the Code of Criminal Procedure.

om

13. The decision of Division Bench of this Court in the case of Nana Gangaram Dhore v. State of Maharashtra 71 Bom LR 375 = B

(1970 Cr.L.J. 621): Provides a complete answer to both these contentions raised by Mr. Naik. It has been laid down in the said case that the powers of the appellate Court under Section 423 Page 76 of 90

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of the Code of Criminal Procedure, are the same as those of the trial Court (at page 383) and that if for the purpose of rt

deciding the appeal, the evidence examined as a whole shows that the appellants are guilty under ou

Section 34 of the Indian Penal Code having shared a common intention with the other accused who are acquitted, and that the C

acquittal of those persons was bad. there was nothing to prevent the appellate Court from expressing that view and giving h

that finding (at page 386). The view taken by the Division Bench ig

in the said case is binding upon me, and following the same. I must reject both these H

contentions of Mr. Naik.

14. I, therefore, alter the convictions of the first accused from the substantive offence of y

kidnapping under Section 366 of the Indian Penal Code to one of ba

abetment of the offence of kidnapping committed by the second accused under Section 366 of the Indian Penal Code, and om

pass upon him the same sentence as has been awarded in respect of the substantive offence of kidnapping of which he was found guilty by the trial Court. The B

conviction as well as the sentence passed against him by the trial Court for the offence under Section 376 of the Indian Penal Code are set aside and the appeal filed by accused No.1 is Page 77 of 90

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allowed to that extent.”

59. In Bishwanath Jha & Anr. v. State of rt

Bihar, reported in 2002(2) Crimes 163 (SC), ou

which was pressed in aid by the learned Special Public Prosecutor the Hon’ble Supreme Court has C

observed as under : –

“6. The above is not enough to dispose of this appeal nor to h

exonerate the appellants completely from the charge. ig The acts proved by the prosecution would fall within the ambit of section 457 of the IPC. Learned H

counsel for the appellants made a bid to contend that the said count was not included in the charge and hence, the appellants y

are not liable to be convicted thereunder. Section 221(ii) ba

enables the court to convict the appellants of the offence which they have shown to have committed, although they were not om

charged with it. If any such altercation to be made, the question is whether any prejudice would be caused to the appellants. We asked learned B

counsel for the appellants whether they want another opportunity to cross-examine the prosecution witnesses focusing on the offence under section 457 IPC. Learned counsel fairly Page 78 of 90

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submitted that it is not necessary.”

rt

60. The learned counsel for the appellants ou

have a strong objection and state that this would prejudice their clients. I have carefully C

considered the rival contentions. There can be no doubt that forgery cannot be termed as a h

lesser offence in relation to offence of counterfeiting

ig Government stamp, nor is it included in the offence of counterfeiting to H

attract provisions of Section 222 of the Code of Criminal Procedure. However, a conjoint reading y

of provisions of Sections 215 and 221 of the ba

Code of Criminal Procedure may remedy the situation. The provisions are as under :- om

“215. Effect of errors.- No error in stating either the offence or the particulars required to be stated in the charge, and no B

omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused as in fact misled by such error or omission, and it has Page 79 of 90

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occasioned a failure of justice.” “221. Where it is doubtful what offence has been committed.- (1) rt

If a single act or series of acts is of such a nature that it is doubtful which of several ou

offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of C

such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed h

some one of the said offences. ig

(2) If in such a case the accused is charged with one offence, and it appears in H

evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he y

may be convicted of the offence which he is shown to have ba

committed, although he was not charged with it.”

The elaborate charge in this case reads as om

under:-

“Firstly, that you above named accused, along with other unknown B

accused, during the period from March, 1994 to July, 1995 at Mumbai, particularly at the offices of you Accused No.1 – Telgi situate at 29, Police Court Lane, Garden Mansion, Handloom House, Fort, Mumbai – 1 and 44 Page 80 of 90

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Hussain Manor, Bomanji Petit Street, Camps Corner, Mumbai – 26, and generally within the limits of M.R.A.Marg Police rt

Station, agreed to do or caused to be done illegal acts necessary and incidental to counterfeiting ou

special adhesive stamps i. e. process of stamping special adhesive stamps on the documents and to effect fraudulent and C

unauthorized sale of such stamps, and thereby defraud the Government of its lawful revenue, to wit, you accused agreed to do h

or caused to be done unauthorized and fraudulent stamping of two ig

Lease Deeds and two attested copies thereof of Lalbhai Reality Ltd. and Arvind Fashions, clients of M/s. Purnanand & Co. with H

special adhesive stamps worth Rs.16,58,990/- and for that purposes to forge the signatures of Proper Officer of the General y

Stamp Office, Mumbai as well as seals of General Stamp Office, ba

Mumbai and G.S.O. extended Sales Counter, Bandra, Mumbai and to commit forgery in respect of cancellation/defacement of the om

said stamps for the purpose of counterfeiting the said special adhesive stamps on the said documents, and thereby you all accused committed an offence B

punishable under Section 120B of I.P.C. r/w. Secs.255, 256, 258, 259, 263, 420 r/w. Sec. 511 of the Indian Penal Code, 1860, and within my cognizance.

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Secondly, that you above named accused, along with other unknown associates, in the month of May, 1995 at the aforesaid place/s at rt

Mumbai in pursuance to the aforesaid criminal conspiracy counterfeited and/or knowingly ou

performed part of process of counterfeiting the said special adhesive stamps issued by the Government for the purposes of C

revenue, to wit, got the said special adhesive stamps totally valued at Rs.16,58,990/-, more particularly, 331 stamps of h

Rs.5000/- denomination each, 7 stamps of Rs.500/- denomination ig

each, 8 stamps of denomination each, 4 stamps of Rs.20/- denomination each and 1 Rs.50/-

H

stamp of Rs.10/- denomination, in pursuance to the said criminal conspiracy and in furtherence of your common intention counterfeited and knowingly y

performed the process of counterfeiting the said special ba

adhesive stamps issued for the purpose of Government revenue, which were affixed on two Lease Deeds of M/s. Lalbhai Reality om

Ltd. and Arvind Fashions Ltd., clients of M/s. Purnanand & Co. and cancelled/defaced the said stamps with forged signatures and seals in order to resemble as B

genuine special adhesive stamps, and thereby you all committed an offence punishable u/sec. 255 r/w. Sec. 34 of I.P.C., within my cognizance.

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Thirdly, that you above named accused No.1 – Telgi along with other unknown associates, in the month of May, 1995 at the rt

aforesaid place/s at Mumbai in pursuance to the aforesaid criminal conspiracy sold or ou

offered for sale the said special adhesive stamps totally valued at Rs.16,58,990/-, more particularly 331 stamps of Rs.5,000/- C

denomination each, 7 stamps of Rs.500/- denomination each, 8 stamps of Rs.50/- denomination each, 4 stamps of Rs.20/- h

denomination each and 1 stamp of Rs.10/- denomination affixed on 2 ig

Lease Deeds and two attested copies thereof of M/s. Lalbhai Reality Ltd. and Arvind Fashions H

Ltd., to wit, unauthorizedly affixed the said stamps on the said lease deeds, including 2 accused special adhesive stamps of Rs.50/- denomination each, y

caused cancellation/defacement of the said stamps with forged ba

signatures and seals of the Proper Officer of Extended Sales Counter, Bandra, G.S.O., Mumbai and delivered such documents with om

the bill in the name of Telgi AKL Government Licensed Stamp Vendor to Purnanand & Co., which you knew or had reason to believe to be the counterfeits of the stamps B

issued by the Government for the purposes of revenue, and thereby you accused No.1 – Telgi committed an offence punishable u/s. 258 of the I.P.C., 1860 and within my cognizance.

Page 83 of 90

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Fourthly, that you above named accused No.1 – Abdul Karim Telgi and you accused No.2 – Sanjay Gaikwad on or about 30.05.1995 at rt

the aforesaid place/s in pursuance to the aforesaid criminal conspiracy were in ou

possession of the aforesaid special adhesive stamps,which you knew to be the counterfeits of the stamps affixed on the said C

Lease Deeds issued by the Government for the purposes of revenue intending to use or dispose off the same as genuine h

stamps and thereby you accused No.1 – Telgi and you accused No.2 ig

– Gaikwad committed an offence punishable

I.P.C., 1860

u/s.

and

259 of

within

the

my

H

cognizance.

Fifthly, that you accused No.3 – Ramratan Soni during the period from March, 1994 to July, 1995 at y

Mumbai at your residence, particularly, at Room No.12-A, 2nd ba

floor, Sonawala Building, 5, Assembly Lane, Dadi Seth Aguiry Lane, Kalbadevi, Mumbai, were in possession of the instruments or om

material, viz. Rubber stamps meant for making impressions of (i) Extended Sales Counter, G.S.O., Bombay and (ii) Proper Officer, Extended Sales Counter, B

Bombay, G.S.O., Bombay of Date for the purposes of being used or knowing or having reason to believe that such stamps are/were intended to be used for the purposes of counterfeiting any Page 84 of 90

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special adhesive stamps issued by the Government for the purposes of revenue and thereby you accused No.3 – Ramratan Soni rt

committed an offence punishable u/s. 256 of I.P.C., 1860 and within my cognizance.

ou

Sixthly, that you above named accused No.1 – Abdul Karim Telgi during the aforesaid period at C

Mumbai knowingly had in your possession or sold or disposed off the said special adhesive stamps, particularly, the two h

stamps of Rs.50/- denomination each appearing on one of the ig

Lease Deeds, particularly marked as Q-1 and Q-2 from which mark put or impressed upon the said H

stamps for the purposes of denoting that the same has been used, has been erased or removed, and thereby you accused No.1 – Telgi committed an offence y

punishable u/s. 263 of the I.P.C., 1860, and within my ba

cognizance.

Seventhly, that you accused No.1 – Abdul Karim Telgi in the month of om

May, 1995, particularly, on 30th May, 1995 at Mumbai in pursuance of the aforesaid criminal conspiracy attempted to cheat the M/s. Purnanand and Co. and in B

such attempt dishonestly induced them, particularly its partner Mr. Manish Shantilal Parekh to deliver a sum of Rs.16,58,990/-, being the value of the said counterfeit special adhesive Page 85 of 90

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stamps, to wit, unauthorizedly undertook the work of selling the said special adhesive stamps affixed on the two Lease Deeds rt

knowing full well that you were not authorized to undertake such sale and further raise the Bill ou

of the said amount on M/s. Purnanand & Co. on delivering the said documents with the said counterfeit special adhesive C

stamps, and you hereby committed an offence punishable u/s. 420 r/w. Sec. 511 of I.P.C., and within my cognizance.

h

Eighthly, that you above named ig

accused No.1 – Abdul Karim Telgi in or about 1995 at Mumbai in pursuance to the aforesaid H

criminal conspiracy in the course of your business under the name and style as “Telgi AKL Government Licensed Stamp Vendor” unauthorizedly sold and/or y

entered into the business of dealing with the aforesaid ba

special adhesive stamps, which you knew that you were not so appointed and authorized to sell and deal in, and you thereby om

committed an offence punishable u/s. 63(a) & (b) of the Bombay Stamps Act, 1958, and within my cognizance.

B

Ninethly, that you above named accused No.2 – Sanjay Gaikwad in or about May, 1995 at Mumbai, being a person not appointed to carry on business in stamps, carried on business by dealing in Page 86 of 90

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the said special adhesive stamps, and thereby you accused No.2 – Gaikwad committed an offence punishable u/s. 63(b) of the rt

Bombay Stamps Act, 1958, and within my cognizance.

ou

And I hereby direct that you be tried by me on the aforesaid charges.” C

61. Thus, though some of the Sections of h

Penal Code invoked by the learned trial Judge may to hold that

ig

not be apt, the particulars given are sufficient appellants could not have been H

misled due to the reference to wrong penal sections about counterfeiting of stamps instead y

of forgery. It cannot, therefore, be said that ba

there would be any failure of justice or prejudice to the accused if the conviction is om

altered.

62. As already observed, there is absolutely B

no evidence about appellant Gaikwad’s complicity in the conspiracy and evidence sought to be created by appellant Telgi is contrived. His Page 87 of 90

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Appeal No.410 of 2006 is allowed. His conviction and sentence is set aside and he is rt

acquitted of all the charges. ou

63. As far as appellant Soni in Criminal Appeal No.486 of 2006 is concerned, he is held C

to have engaged in a conspiracy with appellant Telgi for commission of offences punishable under h

Sections 420 and 468 read with Section 511 of the Indian

ig

Penal Code and thereby attracting punishment under Section 120B of the Indian H

Penal Code, instead of offences punishable under Sections 255, 256, 258 and 259 of the Indian y

Penal Code. Since the offences punishable under ba

Sections 420 and 468 attract maximum sentence of rigorous imprisonment for seven years, the om

sentence would have to be reduced to rigorous imprisonment for seven years with a fine of B

Rs.50,000/- or in default of payment of fine further rigorous imprisonment for one year on that count. Conviction of the appellant Soni for the offence punishable under Section 256 of Page 88 of 90

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the Indian Penal Code is altered to that for the offence punishable under Section 473 of the rt

Indian Penal Code, without disturbing the sentence of rigorous imprisonment for seven years ou

with a fine of Rs.10,000/- or in default of payment of fine further rigorous imprisonment C

for three years.

h

64. As far as appellant Telgi in Criminal Appeal No.710

ig of 2006 is concerned, his conviction on the first count of conspiracy of H

counterfeiting is altered to the offence punishable under Section 120B read with Sections y

420 and 468 read with Section 511 of the Indian ba

Penal Code and sentence is reduced to rigorous imprisonment for seven years with a fine of om

Rs.50,000/- or in default of payment of fine further rigorous imprisonment for one year. His B

conviction for the offences punishable under Sections 255, 258 and 259 is set aside. Instead he is convicted for the offence punishable under Section 468 read with Section 511 of the Indian Page 89 of 90

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Penal Code and sentenced to suffer rigorous imprisonment for three years and six months with rt

a fine of Rs.20,000/- or in default of payment of fine further rigorous imprisonment for one ou

year. His conviction for the offence punishable under Section 420 read with Section 511 of the C

Indian Penal Code and sentence imposed is maintained.

h

65.

ig

Substantive sentences shall run concurrently. Criminal Appeal Nos.486 of 2006 H

and 710 of 2006 of appellants Soni and Telgi are partly allowed to the extent indicated above. y

ba

(R.C.CHAVAN, J.)

om

B

Page 90 of 90

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