In Re: Morsan alias Chinnathambi Pattan

Venkataramana Rao, J.—The appellant in this case has been convicted by the learned Sessions Judge of South Arcot of offences under

Sections 235 and 243, Indian Penal Code, and sentenced to five years'' rigorous imprisonment under each section, the sentences to run

concurrently.

So far as the offence u/s 243, Indian Penal Code, is concerned, the evidence on record does not warrant a conviction and the learned Public

Prosecutor fairly conceded that it does not. He must therefore be acquitted of this offence.

The next question is whether the conviction u/s 235, Indian Penal Code, is sustainable. Section 235 runs thus:

Whoever is in possession of any instrument or material, for the purpose of using the same for counterfeiting coin, or knowing or having reason to

believe that the game is intended to be used for that purpose, shall be punished....

Before an offence can be made out under this section, it is incumbent upon the prosecution to prove not only the possession of the instrument or

material but also to prove that the possession was with the intention of using the same for the purpose of counferfeiting coin or with full knowledge

and belief that it was intended to be used for that purpose. If the prosecution fails to prove the necessary intention, knowledge or belief, a person

cannot be convicted under that section by a mere proof of physical possession of an instrument or material. The facts found against the appellant in

this case by the learned Sessions Judge are that when P.W. 1 saw him in the house of P.W. 8 and arrested him, he was holding in his hands two

pieces, one in each hand, M.Os. 1 and 2 in the case, which contained dies of the obverse and reverse sides of a King Edward rupee coin of 1907

and that on searching the appellant''s house, two lead plates (M.O. 34) were recovered. The case for the prosecution was that the Circle Inspector

received information sometime before the arrest that the appellant was counterfeiting coins, that he proceeded to the village of P.W. 8 at about 3-

30 P.M., sent for P.W. 8, who was the lessee of the house, where the appellant was at the time of the arrest, asked him to watch the appellant and

at 6 P.M. surprised him and found him in possession of the said incriminating articles. It is in evidence that P.W. 8 is a blacksmith and that the

house was rented by him; in the room was found not only M.Os. 1 and 2 but also M.Os. 3 to 33. The learned Sessions Judge has found that

M.Os. 3 to 33 save M.O. 14 were those normally found either in a blacksmith''s or goldsmith''s workshop and that all the said articles admittedly

belong to P.W. 8. It is also the case for the prosecution that the appellant lives in a village 12 miles distant from the village of P.W. 8, that on the

day previous he requested P.W. 8 to allow him the use of the room for the purpose of making some silver articles, that P.W. 8 acceded to his

request and that accordingly he came the next day and was at the work of counterfeiting coins. This was sought to be proved by P.W. 8, whom

the learned Sessions Judge rightly disbelieved. There is absolutely no evidence that the appellant brought M.Os. 1 and 2 into the house; nor has the

prosecution been able to establish that they were manufactured at the instance of the appellant. One is rather inclined to suspect that the real culprit

is probably P.W. 8. He was admittedly the lessee of the house; it was in his house that the incriminating articles were found; he was present in the

very same room where the appellant was arrested; and the evidence of P.W. 8 to the effect that the appellant manufactured the coins was rejected

by the learned Sessions Judge. But, however, the question is, can the appellant be said to be guilty of any offence by reason of the possession of

M.Os. 1 and 2? The case for the defence is that the whole case was foisted at the instance of one Kannuswami, the Village Munsiff of

Vellaikuppam, who decoyed the mistress of the appellant and in consequence whereof there was considerable ill-feeling between the said

Kannuswami and the appellant. The appellant''s case is that P.W. 9 owed him some money and when he demanded it, P.W. 9 asked him to come

on the day of his arrest and when he went to his village, he took him to the house of P.W. 8 and Kannuswami conspiring with P.Ws. 8 and 9

introduced these articles into the house. P.W. 1 admits that Kannuswami and his son were in the house of P.W. 8 when he arrested the appellant

and that they were present when he searched the house. It is rather surprising that Kannuswami''s signature to the Mahazar was not taken, nor was

his son examined. It is not possible to understand why Kannuswami was present at the house at the psychological moment of the appellant''s

arrest. There seems to be a good deal of foundation for the case set up by the accused having regard to the fact that no evidence is forthcoming of

any actual counterfeiting of the coin by the appellant at any time and that he was supposed to have begun the work of counterfeiting coin in P.W.

8''s house on the very day on which he was arrested. Accepting however the version as given by the prosecution that the appellant was having in

his hands M.Os. 1 and 2 and that M.O. 34 was recovered from the house of the appellant, would he be guilty u/s 235 in the circumstances of this

case? From the possession of M.O. 34, it is not possible to draw any inference on the evidence on record. P.W. 2, the Coin and Currency Expert,

says that M.O. 34 looked as if they had been struck off M.Os. 1 and 2 and then flattened out. It is only a surmise and from a mere surmise, no

adverse inference can be drawn and there is no other evidence in regard to this matter. The only other thing which remains against the appellant is

his having M.Os. 1 and 2 in his hands. From the mere holding of M.Os. 1 and 2 in his hands, it cannot be said that the appellant was having them

for the purpose of using the same for counterfeiting coin or knowing or having reason to believe that the same was intended to be used for that

purpose. The prosecution has failed to prove the necessary mens rea on which alone a conviction can be based under that section. At any rate; it

seems to me that the case against the appellant has not been established beyond all reasonable doubt.

I therefore set aside the convictions and direct the appellant to be set at liberty.