Ramchariter Singh vs Emperor

Sen, J.—The appellant has been convicted under Sections 489B and 489C, I.P.C. and sentenced to rigorous imprisonment for two years.

The charges against him were (1) that he had on the 29th December 1926, at Patna, used a genuine a forged currency note of Rs. 50, having reason to believe the same to be forged, and, (2) that he had in his possession a forged currency note of Rs. 50, having reason to believe the same to be forged and intending to use the same as genuine.

The prosecution case is as follows: The appellant went to the Allahabad Bank on the 29th December and presented a currency note (Ex. 1) of Rs. 50 and wanted cash in exchange. He presented the note to the assistant cashier one Benarsi Das (P.W. l) as a fifty rupee note. The assistant cashier was at that time very busy and he says as it was a dirty note he took it to the head cashier to have it examined. Ha says however, that he had no suspicion about the note being other than genuine and he simply took it to the head cashier because he had no time to examine it closely. The head cashier (P.W. 4) examined it for two or three minutes and then he declared it to be a forgery. According to P.W. 4 the head cashier himself, he detected the forged character of the note after a minute or two. Thereupon the appellant was told that the note was a forged one but he said that it was all right and asked that it might be changed. Raja Earn the head cashier then took the note and the accused to the agent. The agent, as appears from his evidence, asked the accused if he had presented the note and he said yes. He said he was a clerk of Babu Nageswar Prasad, a well known vakil of Patna, and he also said that he had no account at the bank but that since he was passing he dropped in to get it changed. The agent asked him to sign it and he feigned the note on the back. The agent thereafter telephoned to the thana. The accused asked him to destroy the note and not hand it over to the police. It also appears that on being questioned by the agent the appellant said he had got the note from a client of Babu Nageswar Prasad who had given it in payment of Babu Nageswar''s fees. In the course of the trial it transpired that P.W. 2 Kuldip Singh was the client who, according to the appellant, had paid its. 55 to the appellant on account of Babu Nageswar Prasad''s fee for moving a bail application on the 23rd December 1926.

According to the written statement of the appellant the fee of Rs. 55 having been first settled by Babu Nageswar Prasad it was laid on the table by Kuldip Singh (P.W. 2) and ''it consisted of a fifty-rupee, note and Rs. 5 in cash. The appellant was very busy at that time typing the petition for bail, which was to be moved by Babu Nageswar Prasad immediately in court, and there being no ostensible ground for suspecting the note to be a forged one the accused put it in his pocket together with the Rs. 5 in cash. Soon afterwards he had to hurry to the Court as the bail application had to be moved. The same evening Babu Nageswar Prasad left for Calcutta and the appellant was, asked to spend the fees realized that day and also some more cash, about Rs. 25 or Rs. 30 which was given to him, if necessary over the building of a new house of Babu Nageswar Prasad which was then under construction. It appears that from the 23rd December the bank remained closed for four days and there was no occasion for the accused to change the fifty rupee note inasmuch as he had Rs. 25 to Rs. 30 in loose cash which served for necessary expenses during that time. On the 29th ha wanted to get the note changed for further expenses. As the Allahabad Bank was close by be dropped in there to change the note. Kuldip Singh (P.W. 2) states that Babu Nageswar Prasad demanded a fee Rs. 75, but he agreed to take Rs. 40, as it would, not take long for him to move the petition plus Rs. 5, for his clerk; that it is not true that ha paid Rs. 55 as fee to Babu Nageswar Prasad but that it was a sum of Rs. 45, paid in coin. He goes to the extent of saying that he has never seen a fifty rupee note.

Kishundhari Singh (P.W. 5) who together with Kuldip Singh was looking after the case in connexion with which Babu is ages war Prasad was to move the petition for bail, supports the statement of Kialdip Singh that Rs. 45 was paid and not Rs. 55. The evidence of neither of these two witnesses, however, appears to be straightforward. There is an apparent end over on their part to dissociate themselves by all means whatsoever from the fifty-rupee note which was the subject-matter of the prosecution. Babu Nageswar Prasad has also given evidence in the case and he states that he fixed a sum of Rs. 55 as his fee for moving the petition, that he ascertained from the clerk that the sum of Rs. 55 had been paid before he actually moved the petition, and that he had also been told by the appellant that there was a fifty rupee note and Rs. 5 in cash; that in addition to the said sum of Rs. 55 he paid to his clerk a further sum of Rs. 25 or Rs. 30 before leaving for Calcutta for necessary expenses in his absence in connexion with the building operations then going on.

There is no reason whatever to disbelieve the evidence of Babu Nageswar Prasad; and, as I have already observed, on the face of the evidence of P.W. 2 and P.W. 5, the statement, that the sum of Rs. 45 was paid in coin and not Rs. 55, seems to be open to grave doubt.

The fact that the note was forged or counterfeit appears to have been proved satisfactorily. It is also clear, and it is admitted, that the appellant did use the note by presenting it for encashment at the Allahabad Bank. The only point upon which liability of the appellant must turn is as to whether he knew or had reason to believe the note to be forged, or counterfeit, and whether knowing it to be so he intended to use the same as genuine. The learned Sessions Judge in his summing up pointed out to the jury that in his opinion the bank would be an unlikely place at which to try and pass a forged note if one was aware of its character. Ordinarily notes and particularly those of higher denominations, would be care-fully examined at the bank. A man would be more likely tottery and pass off a forged note in the bazar.

He also pointed out that, although from the 23rd to the 29th December the note in question had been in possession of the accused, and although from that one might think that the accused would have had ample opportunity for examination of the note, yet it was to be remembered that it is not the ordinary practice for a man to examine daily the notes in his possession and that one would only take them out when one wanted them.

As regards the question whether Rs. 45 was paid to Babu Nageswar Prasad as his fee or Rs. 55 in the shape of the fifty-rupee note and Rs. 5, in cash : the learned Sessions Judge placed the evidence relating to that subject before the jury and he pointed out that the evidence of P.W. 2 Kuldip Singh and P.W. 5 Kishum-dhari Singh was contradictory, and he further pointed out that the evidence of P.W. 9 Surja Prasad, and Babu Nageswar Prasad who had been called as a Court witness, was opposed to the evidence of P.W. 2 and P.W. 5. As regards the character of the note the learned Sessions Judge did not fail to discuss the question as to whether it was such as to arouse the suspicion of an ordinary man, He directed the attention of the jury to the fact that no layman had been examined by the prosecution in order to show whether the forged character of the note was so palpable as to be easily detected by an ordinary person. He also pointed out that only two experts had been examined and out of these the assistant cashier in the tank deposed that when he presented the note to the head cashier for examination, it was not because he was suspicious regarding its genuineness, but because it was dirty and he was busy. The head cashier, P.W. 4, also examined it for two or three minutes (or for a minute or two) before he could detect that the note was a forgery.

It appears, therefore, that the main and salient features of the case were fairy and fully laid before the jury by the learned Sessions Judge. The jury, however, unanimously returned a variety of guilty and the learned Sessions Judge, accepting the unanimous verdict has convicted the accused and sentenced him to two years rigorous imprisonment.

There are two lines of argument advanced in his court on behalf of the appellant by the learned Counsel appearing for him. The first is that in the eye of the law there is no evidence in this case such as might legitimately lead to an inference of guilt on the part of the accused. Therefore, in view of the revisions of Section 289, Sub-section (2), Criminal P.C., the learned Sessions, judge, in this charge to the jury, should have definitely put it to them that there was no evidence to show guilty knowledge on the part of the accused; in the absence of such a direction the verdict of the jury is vitiated by misdirection by the Judge.

In support of this proposition reliance is placed on the dictum of Jenkins, C.J., in Emperor v. Upendra Nath Das 19 C.W.N. 653. The passage relied on runs thus:

We have heard much of a scintilla of evidence and its paralyzing effect on the power of the Judge to assist the jury that is an argument the might possibly have possessed some force in the early part of the last century. But the scintilla theory is now exploded.

It is not enough to say that there was some evidence. A scintilla of evidence clearly would not justify the Judge in leaving the case to the jury.

There must be evidence on which they might reasonably and properly conclude the fact to be established: Ryder v. Wombwell [1869] 4 Ex. 32. This case was quoted with approval in Metropolitan Ry. Co. v. Jackson [1877] 3 A.C. 193, where Lord Blackburn said: "It is for the jury to say whether and how far the evidence is to be believed. And if the facts as to which evidence is gives are such the it from them a further inference of fact may legitimately be drawn, it is for the jury to say where that inference is to be drawn. But it is for the Judge to determine, subject to review, as a matter of law, whether from those facts that further inference may legitimately be drawn It is true that these remarks were made in a civil case, but they are of universal application.

On the strength of this passage it is urged that in the circumstances of this case although there might have been some evidence it was of so meagre a description that it was the duty of the Judge to tell the jury that there was in fact no legal evidence to justify an inference of guilty knowledge.

This necessitates an examination of the case referred to in the passage above quoted. In the case of Ryder v. Wombwell [1869] 4 Ex. 32, it was laid down:

There is in every case...a preliminary question which is one of law, namely, whether there is any evidence on which the jury could properly find.... It was formerly considered necessary in all cases to leave the question to the Jury if there was any evidence even a scintilla, in support of the case: but it is row settled that the question for the Judge (subject, of course, to review) is, as is stated by Maule, J., in Jewell v. Parr [1853] 13 C.B. 909 not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the Jury that the fact sought to be proved is established.

In the case of Metropolitan Ry. Co. v. Jackson [1877] 3 A.C. 193 the question again came to be fully discussed and the cases of Ryder v. Wombwell [1869] 4 Ex. 32 and Jewell v. Parr [1853] 13 C.B. 909, along with several other cases were fully considered and the dictum laid down in those two cases was approved. But it is quite clear on reference to the facts of those cases that it was never meant that the principle would admit of application to any and every case where the evidence does not come up to the standard of certitude desired.

It may fall short of that standard, and yet it may be such that the jury will be entitled under the law to draw their own conclusions from it. There may thus arise any one of four different situations: first, there may be no evidence at all, not even a scintilla; secondly, there may be some evidence, a scintilla perhaps, yet none that caught reasonably to satisfy the jury thirdly, there may be evidence which is not of the standard of certitude desired but on which the jury may reasonably and properly conclude the fact in question established; lastly, the evidence may approach the standard of certitude.

Formerly it used to be thought that in the second of these four situations the question should be withdrawn from the jury. The later decisions above mentioned lay down that that view is erroneous. A mere scintilla is not enough. But the rulings above referred to do not sanction the opposite extreme contended for, namely that the evidence must be satisfactory, trustworthy and conclusive before the jury can be asked to arrive at their verdict on it. In the case of the Metropolitan Railway Co. v. Jackson [1877] A.C. 193 the question was whether the company were liable for the negligence of their servant a porter, in having slammed the door to, just as the train was entering the tunnel so as to cause injury to the hand of a passenger.

In view of the facts of that particular case, their Lordships were constrained to take the view that there was no evidence from which, in their opinion, negligence could reasonably be inferred. The train was just going to enter the tunnel and in order to effect the safety of the passengers the porter must have to act and act quickly, as he did, by slamming the door to. The principle laid down in the cases above mentioned has to be interpreted with reference to the facts of those cases and must be applied accordingly. The principle barely stated hardly proves of any assistance.

Applying the principle according to its proper scope and meaning the conclusion that is fairly deducible is that it is not correct to say that a matter can be left to the jury if, and only if, the evidence relating to it is satisfactory, trustworthy and conclusive. This view is supported by the rulings in Queen Empress v. Munna Lal [1888] 10 All. 414 and Queen Empress v. Vijiram [1892] 16 Bom. 414. That is the sense in which, in our opinion, the provisions of Section 289, Sub-section (2) Criminal P.C., are to be understood.

Reliance has also been placed on the case of Queen v. Bahar Ali Kahar 15 W.R. 46. In that case there was a total absence of evidence that the prisoner committed the offence charged and it was, therefore, held that the conviction by the jury could not stand. Similarly, in the case of Queen v. Rutton Dass 16 W.R.19, it was laid down that.

a jury may be satisfied with a minimum of proof, and it is beyond the power of this Court in such oases to interfere with its verdict, but when there is nothing which can, if believed, amount to proof, the case should not be put to the jury at all, as a verdict of guilty cannot, in such circumstances, be sustained.

The same observations apply to an unreported case relied on by the learned Counsel for the appellant: Muhammad Ahsan v. King Emperor (Criminal Appeal No. 176 of 1924, decided by this Court on the 1st December 1924).

The learned assistant Government advocate has urged that it is impossible to say in this case that such minimum of proof is absent from the evidence. He contends that the fact that the note in question was with the accused for six days and that he might have looked to see whether it was genuine or not; the fact that the accused presented the note for encashment to the Allahabad Bank rather than to his own bank; his first refusal to sign the note; his suggestion to the agent to de for it rather than make it over to the police, all these might have weighed with the jury to come to the conclusion that the accused had guilty knowledge He urges, therefore, that in these circumstances it is beyond the power of the Court to interfere with the verdict.

The second point urged by the learned Counsel appearing for the appellant is that the law, as laid down in Section 26, I.P.C., with reference to reason to believe should have been clearly and fully explained to the jury by the learned Sessions Judge. His argument is based on the ground that the culpability or otherwise of the appellant in this case solely turns on the question whether he had the requisite mens rea or guilty knowledge, regarding the forged or counterfeit character of the note. This question turns on what is meant by reason to believe which is explained in Section 26, I.P.C. The mere fact, of his presentation of the note to the bank, or of his having had the note in his possession, would not make him guilty, but it must be shown that ha had reason to believe the same to be forged and such "reason to believe" can only be inferred if the jury is perfectly satisfied that he had "sufficient cause to believe" that the note was forged or counterfeit. The omission of the learned Sessions Judge to explain "reason to believe" in terms of Section 26 would amount, it is urged, not Only to a mere irregularity within the meaning of Section 537, Criminal P.C. but to a failure to comply with the express provisions of the law and would, therefore, vitiate the conviction.

In support of this proposition reliance is placed on the case of Mari Valayan v. Emperor [1907] 30 Mad. 44. In that case, which was one of dacoity, the learned Judge had laid down the law thus:

The accused are charged with dacoity. Dacoity is committed when any number of persons, not less than five, conjointly commit robbery.

But the learned Judge omitted to explain to the jury the essential elements of the offence of robbery. Thus it might fairly be urged that the jury were not able to direct their minds to the question whether the offence would fee hurt, or wrongful restraint, or fear of instant hurt, or instant wrongful restraint (any one of which or more may be essential ingredients of the section on robbery) had been caused or admitted to be caused by the accused. It was, therefore, held that

if the direction of the Judge leaves room for doubt as to whether the jury had present to their minds an essential element of the offence with which the accused are charged, the jury were not properly directed.

In the present case the sole question being whether the accused had had any opportunity of looking at the note and examining its character between the 23rd and the 29th after receipt of it from his master''s client it immaterial whether the jury investigated his case from the point of view as to whether he had reason to believe the note to be forged, or whether he had sufficient cause to believe the note to be forged, the difference between the two being inappreciable.

On both the above grounds, therefore, I am constrained to hold against the appellant. The terms of Section 423(2), Criminal P.C., are imperative and there being, in our opinion, no misdirection by the learned Sessions Judge it is not competent to us to alter or reverse the verdict of the jury.

We, however, wish to express our opinion that in a case of this description, which turns entirely on the mental factor, it is extremely difficult to base the conviction of an accused on the slender evidence of guilty knowledge disclosed in the case. The fact that the accused want to a bank to change the note is in itself an indication of his innocence, for no one would willingly subject the note to the scrutiny of the cashier of the bank who is an expert in detecting forged notes. The unwillingness expressed by him in the first instance to sign the note on being asked to do so does not necessarily point to his guilty knowledge. It is, in our opinion, perfectly consistent with one''s innocence. A man being innocent may be for that very reason at the first blush inclined to avoid being associated with what has turned out to be a forged note. His suggestion to the argent that "the note might be destroyed and not handed over to the police does not, in our opinion, necessarily point to his guilt. A old man night rise to the occasion and face a police prosecution. A timid man, on the other hand, may seek by entreaty to put a stop to a prosecution, if possible, by destruction of the note. It may also be said in his favour that if he was really guilty he would be the last person to make such a suggestion to a person in authority like the agent of the bank who was above all influence. We are inclined to think that all the circumstances pointing to the innocence of the accused have not been fully considered by the jury and that the appellant was deserving of acquittal. The jury have, however, in this case, exercised their judgment and formed; their own view, and the Judge has also accepted their verdict which was unanimous.

The law does not permit us to reverse the verdict of the jury as there has been no misdirection by the learned Sessions Judge nor a misunderstanding on the part of the jury of the law as laid down by him.

We are, however, of opinion that the accused should have been acquitted and that the verdict was against the weight of the evidence. We direct that a copy of our judgment, together with a copy of the paper book, should be sent without delay to the Local Government for such action, if any, as it may like to take.

A Hanson, J.

I agree.