Ganesh alias Karan Mali vs State of M.P.

A.K. Shrivastava, J.

This appeal has been preferred by the Appellant u/s 374(2) of the Code of Criminal Procedure. 1973 against the judgment of conviction and order of sentence dated 19.3.1999 passed by the learned IVth Additional Sessions Judge, Chhatarpur in Sessions Trial No. 253 of 1998 whereby he has been convicted u/s 489-B and 489-C of the Indian Penal Code (hereinafter referred to as the IPC) and has been directed to suffer rigorous imprisonment of 10 years under each section.

No exhaustive statement of facts are necessary for the disposal of this appeal. Suffice it to say that on 29.9.1997 at 6.30, A.S.I., R.K. Rai (PW-7) came to know that one person wearing green trouser and white printed shirt is having counter-feit currency note of Rs. 500/-, in his possession, as a result of which Shri Rai along with police party encircled and arrested him. At the time of arrest, four currency notes of Rs. 500/-were seized from him. Apart from these currency notes, some currency notes of Rs. 100, 50, 20, 10, 5 and 2 were also recovered. These currency notes were seized and a seizure memo was prepared. During the investigation, the accused stated to the ASI, R.K. Rai that some currency notes, he had invested in the market and thereafter at his instance from different shopkeepers five currency notes were seized from Arun, Davendra, Avadhesh, Suraj and Anil. According to the prosecution, these currency notes of Rs. 500/- were also conuter-feit.

After completing the investigation, a charge-sheet was filed before the competent Court u/s 489-B and 489-C of the IPC. The Committal Court committed the case to the Court of Session and from where it was received by the Trial Court for the trial.

The learned Trial Judge framed charges punishable u/s 489-B and 489-C of the IPC. Needless to emphasise, the Appellant abjured his guilt and pleaded complete innocence. His defence is that he is an illiterate person and he has no idea or any special knowledge to identify the genuine and fake currency notes.

In order to prove the charges, the prosecution examined as many as eight witnesses and placed Ex.P-1 to P-9 the documents on record. The learned Trial judge after appreciating and marshalling the evidence came to hold that the currency notes of Rs. 500/- which were recovered from the possession of the Appellant and as well as other currency notes which were recovered from different shop-keepers from whom after paying the said currency notes of Rs. 500/-, the accused purchased certain goods, were found counter-feit and hence convicted the Appellant for the said offences and passed the sentence to suffer rigorous imprisonment of 10 years under each Section. Hence, this appeal.

In this appeal, Mrs. Sudha Sharma, learned Counsel for the Appellant has contended that there is no evidence to the effect that the currency notes which were seized from the Appellant or by which he purchased certain goods from different shop-keepers, were in his knowledge to be counterfeit According to her, it was the bounden duty of the prosecution to prove that the accused was knowing or having reason to believe that they were forged or counter-feit and therefore the prosecution has utterly failed to prove its case beyond all possible doubts. On these premised reasons, it has been contended by learned Counsel that no offence is proved and the appeal be allowed by acquitting the Appellant.

Refuting the aforesaid submission of learned Counsel for the Appellant, it has been vehemently argued by Shri R.N. Yadav, learned Counsel appearing for the State that the Trial Court after examining the entire material placed before it came to hold that there is overwhelming evidence to draw a conclusion that the Appellant did commit the offence for which he was charged and therefore the Trial Court did not commit any error in convicting the Appellant.

After having heard the learned Counsel for the parties, I am of the view that this appeal deserves to be allowed.

Before I proceed to discuss the evidence, I would like to re-write Section 489-B and 489-C of the IPC which reads thus:

489-B. Using as genuine, forged or counterfeit currency-notes or bank-notes. - Whoever, sells to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

489-C Possession of forged or counterfeit currency-notes or bank-notes. Whoever, has in his possession any forged or counterfeit currency-notes or bank-note knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

On going through the above said provisions, it is found that the legislature has casted a heavy burden on the shoulder of the prosecution to place cogent evidence in order to prove the offences u/s 489-B and 489-C of the IPC. In order to prove the offence u/s 489-B IPC, the prosecution must prove by cogent evidence that:

(i) the currency note or bank note in question was forged or counterfeit;

(ii) the accused sold to, or brought or received from some person, or trafficked in, or used as genuine, such currency notes or bank note; and

(iii) when he did so the accused knew or had reason to believe that it was forged or counter-feit.

Where the accused is charged with using as genuine forged note, the burden is on the prosecution to prove that at the time when the accused was passing the note, he knew that it was a forged one, and the mere possession of it by him does not place the burden on him to account for its possession and to prove his innocent possession thereof.

In order to prove the charge u/s 489-C of the IPC, the prosecution must establish by placing reliable evidence that:

(i) the note must be currency note or bank note;

(ii) such note must have been forged or counter-feited;

(iii) the accused must be in its possession;

(iv) he at the time of his possession knew or had reason to believe, that it was forged or counter-feit; and

(v) that he intended to use it as a genuine or that it might be used as genuine.

If the aforesaid tests are tested on the anvil of the present factual scenario, it would reveal that there is no clinching evidence to the said effect. There is no evidence to the effect that the accused knew or had reason to believe that the currency he used was forged. Even if the accused had a suspicion that the currency was not genuine, that in itself is not sufficient or to prove home the charge under that section.

In the present case, the prosecution examined as many as five shop-keepers in order to demonstrate that the accused came to their shops and by giving them currency note of Rs. 500/- purchased certain goods. It has come in the cross-examination of these witnesses that umpteen purchasers happens to come in their shops daily and they could not remember them and if this be the position then how the shop-keepers could say that it was the accused who came to their shop and gave currency note of Rs. 500/-. There is no evidence to the effect that on the date when the goods were sold to the accused, no other customer did pay currency note of Rs. 500/-. PW-2, Davendra Sahu has specifically said that in his shop near about 400 to 500 customers happens to come. Some of the shop-keepers had said that 30-40 customers comes to their shop.

In the case of M. Mammutti Vs. State of Karnataka, , the Apex Court while dealing the provision of Section 489-B and 489-C of the IPC has held as under:

Mr. Nettar submitted that once the Appellant is found in possession of counterfeit notes, he must be presumed to know that the notes are counterfeit. If the notes were of such a nature that a mere look at them would convince anybody that it was counterfeit such a presumption could reasonably be drawn. But the difficulty is that the prosecution has not put any specific question to the Appellant in order to find out whether the accused knew that the notes were of such a nature. No such evidence has been led by the prosecution to prove the nature of the notes also. In these circumstances, it is impossible for us to sustain the conviction of the Appellant. For these reasons, therefore, the appeal is allowed, conviction and sentences passed on the Appellant are set aside, and the Appellant is acquitted of the charges framed against him.

If the ratio decidendi of the case of M. MAMMUTTI (Supra) is tested on the touch-stone of the present case, it would reveal that in the present case also, there is no such evidence of the prosecution to prove that it was in the knowledge of the Appellant that the currency notes were counter-feit. On going through the records, it is gathered that he Appellant is an illiterate person as he put thumb impression. There is no evidence on record so as to establish that the Appellant was having any idea or any special knowledge to identify the genuine currency notes and the take one. This Court in the case of GOKUL PRASAD v. STATE OF M.P., 1970 MPLJ Note 86 held that even if the accused has a suspicion that the currency was not genuine, that in itself is not sufficient to bring home the charge u/s 489-B of the IPC.

In this view of the matter, as there is no evidence of the prosecution to prove any of the ingredients which I have indicated hereinabove, therefore, it is not proved beyond doubt that the Appellant committed the offence for which he was charged.

For the reasons stated hereinabove, I have no hesitation to hold that the prosecution failed to prove its case beyond doubt and therefore the conviction of the Appellant cannot be sustained and I have no option except to acquit the Appellant.

In the result, the appeal succeeds and is hereby allowed. The Appellant is in jail, he be set at liberty forthwith if not required in any other case.