Amrit Sonar vs Emperor

Jwala Prasad, J.—The appellant Amrit Sonar has been convicted by the Sessions Judge of Bhagalpur on charges u/s 235, Indian Penal Code, of being in possession of certain instruments, to wit, moulds for the purpose of using the same for counterfeiting King''s coins and u/s 243, Indian Penal Code, of being fraudulently in possession of King''s coins, namely, two whole rupees and one anna piece, having known at the time when he became possessed of them that they were counterfeit.

The facts are simple. On receipt of certain information the Sub-Inspector of Partapganj Police Station came to the village of the accused with two Dafadars and two constables, on the evening of the 23rd August, and stayed that night at the Gola of one Khair Singh (P.W. No. 4). He gave confidential instructions to the Dafadars to watch the house of the accused at night. The next morning, the 24th August, he directed one Ganga Prasad, Dafadar of the village, and the Choukidars to surround the house, and made a search of the house of the accused in the presence of some witnesses of the village, namely, Khair Singh (P.W. No. 4), Bheju Labh and Rup Lal Singh. Nothing suspicious was found in the portion of the house intended for the residence of the accused and his family. The Sub-Inspector then dug the floor of an open verandah and found a small piece of dirty cloth buried underneath the floor. In the cloth there were two moulds, Exhibits 1 and 2, each containing a coin--one a counterfeit rupee, Exhibit 1(a), and the other a counterfeit one anna, Exhibit 2(a), a third counterfeit rupee, Exhibit 3, was also found in the cloth. The cloth was buried about one cubit deep. There were other instruments found buried in another spot in this verandah, namely, a hammer and a crucible, Exhibit 4. The two places were near each other.

Upon the above facts the appellant Amrit Sonar and his son Kapur Chand Sonar were committed to the Court of Session. The appellant is aged 50 years and his son is aged 38 years. The trial was conducted with the aid of two assessors who returned a verdict of not guilty, being of opinion that the counterfeit coins and the moulds were placed in the accused''s shop by some one else. Accepting the verdict of the assessors the learned Sessions Judge acquitted Kapur Chand Sonar, whereas disagreeing with them convicted the father Amrit Sonar, appellant, and sentenced him to two years'' rigorous imprisonment under each count, the sentences to run concurrently. For the conviction of the appellant the learned Sessions Judge recorded the following finding:--

There is nothing in the trial in this Court to suggest how and when the articles could have been placed under the shop floor by others than the accused themselves, or by one of them. The moulds are instruments for counterfeiting coins and were found in possession of the accused, who, I think, should he held to be equally guilty. The coins are counterfeit King''s coin and anyone must have known when he became possessed of them that they were counterfeit. Their possession was fraudulent. If the possession of the son Kapur Chand be considered distinct from the possession of his father Amrit, he should be given the benefit of the doubt. It is stated by one witness that the father looks after the cultivation and the son works in the shop, but the evidence on the whole is that both work in the shop and this is probably the truth. Prima facie, the possession of articles found in the shop would be that of the father, and I do not consider from the circumstances he was not aware of their existence. The son in the absence of any special proof may be exonerated.

The finding of the Sessions Judge that the coins are counterfeit and that the moulds were used for preparing counterfeit coins may be accepted. Prosecution witness No. 5, Bhado Mandal, Potedar of the Bhagalpur Treasury, whose duty is to search for counterfeit coins, says that the said coins are counterfeit and that the rupees are not of silver and are below weight and that they appear to be of lead, and that the one anna piece also appears to be of lead.

The coins and the moulds were called for and produced in this Court for inspection. The inspection has confirmed the view taken by the learned Sessions Judge, which is also supported by the evidence on the record. It is not essential for coins to be counterfeit that they should be exact resemblance of genuine coins. It is sufficient that they are such as to cause deception and may be passed for genuine coins within the definition of counterfeit u/s 28, Indian Penal Code: Pirbhu v. Queen-Empress 4 P.R. 1899 Cr and Public Prosecutor v. Kona Thirumala Reddi 1 Weir 219. It is also immaterial that they are not of silver but are of some other inferior metal. The coins bear the impression of 1906 and are of the same size as the King''s coins and bear the imitations of the Crown and the surrounding decorations as are to be found in a genuine coin. The moulds are also apparently capable of turning out the counterfeit coins. One of the rupees and the one anna piece were actually found in the moulds held together by iron springs. There can, therefore, be hardly any doubt that the coins in question are counterfeit and that the moulds were used for preparing the counterfeit coins. There can also be no doubt as to the articles having been found by the Sub-Inspector at the search under the floor in the verandah.

The only question, therefore, to be decided in this case is whether upon the above finding the accused can be said to be in possession of the said counterfeit coins and the moulds. In order to determine this point, it is necessary in the first instance to consider the position of the verandah in which the said articles were found. The verandah is separate from but close to the residential huts of the accused and his family. No plan of the verandah and the house containing the huts has been placed on the record. It may, however, be gathered from the evidence of the Sub-Inspector, P.W. No. 1 that the verandah is in the bazar and it faces south and a part of it is closed on that side with a mat two cubits high nearly reaching the eaves. There is a village path outside. There is a read on the west. P.W. No. 2 says that the verandah is 15 to 20 cubits long and that it is an open ore. The hat of the bazar is a few paces off from it. The inner apartments are enclosed. The verandah in question is used as a shop for the purposes of carrying on goldsmith''s business.

Excepting the discovery of the articles buried under the floor of the verandah which was used as a shop, there is no evidence as to how the articles came to be there, or of the accused having been seen in possession of any counterfeit coin or instrument for counterfeiting coin. There is also no evidence on the record of the accused having ever been seen using the verandah, or carrying on any business in the shop. The Sub-Inspector got certain information which led him to make the search in question. The informant might have probably given some information upon this point, but he has not been examined. Of course the Sub-Inspector was not bound to examine him. The village people who are supposed to be the neighbours have not said anything in their evidence as to whether the accused was seen working in the shop, or was ever in control or possession of the articles in question. The statement of prosecution witness No. 3, Bhai Lal, that the accused (meaning both the accused and his son) are goldsmiths and work in the same shop as being father and son, as well as the statement of prosecution witness No. 4, Khair Singh, that the accused are goldsmiths and have a shop, are too vague to prove that the accused was in actual possession of the shop or carried on business there. The learned Sessions Judge himself does not definitely hold that the accused was in direct possession of the shop. He simply says that "the evidence on the whole is that both work in the shop and this is probably the truth." On the other hand witness No. 6 for the prosecution, Ram Lal Sahu, has definitely stated that Kapur Chand, the son if the appellant, works in the shop and that the appellant looks after the cultivation and that the appellant has 32 bighas of cultivation besides cattle. The learned Sessions Judge has simply stated this evidence but has not clearly rejected it, nor has he given any reason for not accepting it. Kapur Chand, son of the accused, is an elderly person, being 38 years of age, and it is not unreasonable or unusual that he should have been in exclusive charge of the shop, particularly when the cultivation of the accused is an extensive one, consisting of 32 bighas of land. Except the evidence of P.W. No. 6, which I have no reason to discard, the shop must be held to be in exclusive possession and control of the son of the accused and that it has not been proved that the accused had anything to do with the shop. The learned Sessions Judge himself has held the appellant responsible for the articles in question only upon the presumption that "prima facie the possession of the articles found in the shop would be that of the father." The observation of their Lordships of the Allahabad High Court in the case of Queen-Empress v. Sangam Lal 15 A. 129 : A.W.N. (1893) 49, 7 Ind. Dec. (N.S.) 800 may possibly lend support to the view that presumption as to possession and control of articles found in a house may be made against the house-master. Their Lordships, however, declined to lay down an inflexible rule, as is clear from the following observation:--"We do not lay down as an invariable rule that where weapons are found in a house occupied by a Hindu joint family living jointly, possession is necessarily that of the managing member, and the managing member only; but we do lay down that in all cases where it is sought to establish that possession and control are with some member of the family other than the managing member, there must be good and clear evidence of the fact before we can in an act of this kind, arrive at such a conclusion. The act is one highly penal and one which must be strictly construed." Vide also Jagjiban Ghose v. Emperor 2 Ind. Cas. 381 : 13 C.W.N. 801 : 9 C.L.J. 663 : 10 Cr.L.J. 125. In the Allahabad case the conviction of Sangam Lal being in possession of arms without license was set aside, inasmuch as the room in which the almirah containing the arms was placed was in the occupation of the accused and Ram Chand, the managing headman of the family, where other persons also had access. There were in the room a masnad and other pieces of furniture which showed that the managing member Ram Chand was in the habit of using that room. In the case before us nothing was found in the shop to indicate that the accused Amrit Lal, father of accused No. 2, was also using the shop, rather the positive evidence is that the appellant''s son, Kapur Chand, used to work in the shop. The presumption that a managing member must be held to be in possession of the house is rebutted in the present case. It depends on the circumstance of each case. Where the articles found are large properties and placed in a conspicuous place to which the managing member may have access and over which he could exercise control and which could not be overlooked by him, the presumption against the managing member may fairly be made, as observed by Betty, J., in Emperor v. Hari Maniram Sonar 6 Bom. L.B. 887 : 1 Cr. L.J. 960. But in a case where the articles are small ones, like those in the present case, the presumption cannot be properly raised. Although the managing member as the head of the family is supposed to have control over the house, it is impossible for him to know of finy(sic) things placed by a junior member in a place which is not shown to have been in direct control of the managing member. The case of Emperor v. Hari Maniram Sonar 6 Bom. L.B. 887 : 1 Cr. L.J. 960 appears to be similar to the present case, and the evidence in that case also appears more or less to be like what we have got in the present case. The learned Judges Betty and Aston in that case, while not agreeing as to the legal connotation of the word possession'' in sections 235 and 213, Indian Penal Code, held that the evidence was not sufficient to bring home the guilt to the accused, and set aside the conviction. Aston, J., at page 897, observed: "The evidence cannot be said to exclude the possibility of the articles having been surreptitiously introduced by a stranger." This remark appears exactly to apply to the present case.

In the case of Nga San Nyein v. Emperor 28 Ind. Cas. 152 : 8 Bur. L.T. 131 : 16 Cr. L.J. 264, where the articles were found in the eaves of the kitchen and the side wall of the main building and there was some enmity, it was held that it was not improbable that the moulds were planted out of revenge and the accused knew nothing about them. In the present case there is equal, if not greater, reason to raise a suspicion that the articles found in the shop were planted there by some enemies of the accused. It is admitted by the witnesses for the prosecution, P.W. No. 4 Khair Singh and P.W. No. 6 Ram Lal, that the accused was on bad terms with certain persons in the village, notably Ram Prasad and Ganga Prasad Dafadar, who was deputed by the Sub-Inspector to watch the house the night before the search and also to surround it at the time of the search. The verandah is an open one with village path to the south of it and a road to the west, and does not open into the inner apartments of the accused which are enclosed. It would not have been difficult for anybody to plant the articles in the shop without the knowledge of the accused or his son.

The evidence in the present case also shows that the moulds were rusty and, therefore, were not in use recently. This would show that some rusty old moulds with the counterfeit coins were newly buried in the accused''s shop, as is obvious from the earth being loose at the places where the articles were found. This enhances the suspicion as to the articles having been buried by somebody other than the accused or his son. The assessors have taken this view and there is no reason why the finding of the assessors should not be accepted.

In the circumstances of the present case I am not prepared to hold that the appellant Amrit Sonar had possession of the articles or had control over them or that he had any knowledge that the articles were buried in the shop.

I would, therefore, set aside the conviction and acquit the accused. The conviction is accordingly set aside and the accused discharged from his bail.

B.K. Mullick, J.

Although the case is one of great suspicion, I agree that it has not been established beyond all doubt that the articles in question could not have been put at the place where they were found by some person other than the accused.

I agree, therefore, that the appellant should be acquitted.