Kosho Bania vs Emperor

Dhavle, J.—The petitioner has been convicted of an offence u/s 243, I.P.C., and sentenced to rigorous imprisonment for six months.

The prosecution story was that, following information received, constable Ehsan Ahmad of Phulwari thana challenged the petitioner who was going with some others from Phulwari towards Sonepur, and that as a result four counterfeit two anna nickel pieces were recovered from the petitioner. The defence was that the prosecution story was false but this has been disbelieved by the lower Courts, and the prosecution story accepted. The learned advocate who appears for the petitioner has endeavoured to argue that the identity of the coins has not been proved, and further that it has not been proved that the petitioner was in possession of the coins "fraudulently or with intent that fraud may be committed." The former is a simple question of fact, and the latter a matter of inference which appears unassailable in view of the circumstances on which the learned Sessions Judge has relied.

The learned advocate has also urged that no offence under the section is established unless it is shown that the accused knew at the time when he became possessed of the coins that they were counterfeit.

The contention is supported by the terms of the section itself, (compare and contrast Sections 240 and 241), but this part of the section does not seem to have received any attention in the lower Courts. The Government pleader who appears in support of the conviction has not been able to refer me to anything in the judgment of the trial Court bearing on this ingredient of the offence. From the judgment of the learned Sessions Judge, he has referred to two passages. The first passage is that

in the present case the conduct of the appellant in putting his hand into his pocket and bringing out the four counterfeit coins and transferring them to his right hand clearly indicates that he knew from before that these were counterfeit coins;

and the second,

the very fact that the four nickel two anna bits were kept separate from the rest of the coins and that the appellant wanted to throw them away as soon as the tamtam was stopped by the constables can but lead to only one inference, namely that he knew that these coins were counterfeit coins.

Are these findings regarding the petitioner''s knowledge of the counterfeit character of the coins sufficient to bring the petitioner within Section 243? The learned Sessions Judge has not found in respect of any of the coins that the petitioner knew "at the time when he became possessed of it that it was counterfeit." Ho does not in fact appear to have addressed himself to this question at all.

It was suggested on behalf of the Crown that the onus of proving this was not on the prosecution but on the defence, in view of Section 106, Evidence Act, which provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. But it is elementary law that all the ingredients of an offence must in general be proved by the prosecution, so much so that it has even been said sometimes that in criminal cases the onus never shifts from the prosecution to the accused: Emperor v. U. Damapala AIR 1937 Rang 83.

A general exception to this rule is first provided by Section 105, Evidence Act, which throws on the accused the burden of proving the existence of circumstances bringing the accused within any of the general exceptions in the Penal Code, or within any special exception or proviso contained in any other part of the same Code etc. The learned. Government pleader has not been able to contend that the words in Section 243 now under consideration, viz., "having known at the time when he became possessed of it that it was counterfeit," constitute any special exception or proviso within the meaning of Section 105.

Another exception is provided by Section 106 on the meaning and scope of which much light is thrown by the Illustration 1:

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

This was applied in Deputy Legal Remembrancer v. Kuruna Baistobi (95) 22 Cal. 164, and discussed in the Rangoon Full Bench Emperor v. U. Damapala AIR 1937 Rang 83, and it seems clear that Section 106 does not entitle the prosecution to throw the onus as regards the time of knowledge on the accused without any qualification, but that if the prosecution had succeeded in establishing circumstances suggesting that the petitioner knew at the time he became possessed of the coins that they were counterfeit, then and in that case alone it would have been necessary for the petitioner to lead evidence to show that it was not at that time that he became aware of their counterfeit character.

But the learned Sessions Judge has failed to find any circumstances suggesting the petitioner''s knowledge at the time of receipt. All he finds is the petitioner''s knowledge before the coins were found on him.

In my opinion this is clearly insufficient to support the conviction of the petitioner under the section.

The application in revision is accordingly allowed, and the conviction and sentence passed upon the petitioner set aside.