Penal Code, 1860 – ss.120B, 411 rw s.120B – Dishonestly receiving stolen property – Criminal conspiracy – Possession of stolen property – Commission of fraud by remittance through fake Telegraphic Transfers-TT and subsequent withdrawals amounting to Rs. 6.7 crores at the Bank – Bank account opened for a fictitious firm using forged documents – TTs made and said amount credited to the account of the firm and thereafter withdrawn by preparing demand drafts in favour of two companies – Amount involved in the demand drafts allegedly used against purchase of seized gold bars delivered to the appellant-accused no. 3 – Search at the shop of accused no. 3 leading to seizure of 205 gold bars and other documents – Trial court convicted two officers of the bank, however acquitted by the High Court – Accused no. 3 held guilty of the offence punishable u/ss.120B, 411 rw 120B, however directed that
205 gold bars be returned to the accused no. 3 – High Court upheld the conviction of accused no. 3, however quashed the direction to return the gold bars to accused no. 3 and the property stood confiscated – Challenge to:
Held: Once the courts below found that the seized gold bars are not the same gold bars linked to the fraudulent transactions, conviction u/ss.120B and 411 cannot be sustained – On consideration of the pre-requisite evidence to bring home the charge u/s.411, even if it is proved that the appellant was handed over the demand drafts and gold bars were purchased by the appellant from the company, still it was necessary for the prosecution to prove that the appellant either had knowledge or reason to believe that the demand drafts had been obtained through fraudulent process to make the gold bars as stolen property in the hands of the appellant or that the appellant was part of the conspiracy – Moreover, the appellant has been not charged and tried for the first part of the offence relating to criminal conspiracy vis-à-vis fraudulent TTs – Furthermore, the trial court held that the prosecution ought to have produced evidence to show that there was a stock of the same brand with the company and out of that stock some gold bars with the markings were sold to the so called fictitious firm – In the absence of this evidence and especially due to delay of four years in the recovery of the property the very basis of its identification is found shattered, and the possibility of mistaken identification cannot be ruled out – Invocation of s.114 of the 1872 Act not at all permissible since the prosecution failed to discharge its initial burden – Prosecution has to prove its case beyond all reasonable doubts by positively completing the chain of circumstances against the appellant, which the prosecution utterly failed – Thus, the conviction and sentence of the accused no.3 u/ss.120B and 411 set aside – Since the seized gold bars were recovered from the appellant, he is entitled to the possession thereof – Seized gold bars be handed over to the appellant – Since the identity of the seized property being the stolen property not established, the bank not entitled to the possession of the seized gold – Evidence Act, 1872. [Paras 30, 35, 37-39] Penal Code, 1860 – s.411 – Dishonestly receiving stolen property – Charge u/s.411 – Duty of the prosecution to prove: Held: Prosecution has to prove that the stolen property was in the possession of the accused; that some persons other than the accused had possession of the property before the accused got possession of it; and that the accused had knowledge that the property was stolen property. [Para 32]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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