SABIN DEKA vs THE STATE OF ASSAM

1.Heard Mr. B Kalita, learned counsel for the appellant and Mr. D Das, learned Addl. PP, Assam.

This appeal is directed against the judgment and order dated 22.12.2017 passed by learned Sessions Judge, Nalbari in Sessions Case No.118/2010.

By the said judgment, learned Sessions Judge convicted the accused/appellant under Section 489(B) IPC and sentenced him to undergo RI for 4 (four)

years and to pay a fine of Rs.1,000/- with default stipulation.

As per the prosecution story, an FIR was lodged by one Nagen Basumatary alleging that he was the lessee of Nagrijuli market. On 08.07.2003,

eight numbers of fake currency notes of Rs. 500 (five hundred) denomination were recovered from the accused/appellant Sabin Deka, while he was

paying revenue for sale/purchase of cow. On the basis of the said FIR, police registered a case and after usual investigation, submitted charge-sheet

against the present appellant as well as one Satish Biswas (since acquitted) under Section 489 (A) IPC read with Section 34 IPC.

On the basis of the said FIR, learned JMFC took cognizance and having found the offence, exclusively triable by the Court of Sessions, committed

the case to the Court of Sessions and eventually the present appellant and the co-accused Satish Biswas stood trial for charge under Section 489 (B)

IPC.

In the course of trial, the prosecution examined 5 (five) witnesses including the forensic expert, and on appreciation of evidence, learned trial Court

acquitted the co-accused Satish Biswas. However, convicted the appellant under Section 489-B and awarded sentence as indicated above.

Aggrieved by the impugned judgment of conviction and sentence, the petitioner preferred the instant appeal.

The learned counsel for the appellant vehemently arguing for the acquittal of the appellant submits that the petitioner got the currency notes by

selling his cattle and he had no knowledge that those currency notes were counterfeit and in absence of evidence, that the accused/appellant used the

counterfeit currency, knowing or having reason to believe that the currency notes was counterfeit, the accused could not have been convicted under

Section 489-B IPC.

Out of the 6 (six) witnesses examined by the prosecution, PW-5 was the forensic expert, who examined the seized currency notes and submitted a

report with the opinion that those notes were not genuine.

The testimony of PW-2 and PW-3 are of no consequence as PW-3 stated that he only heard about some counterfeit notes being seized from the

accused. The PW-2, though, stated during his examination-in-chief that Sabin Deka handed over a 500/-rupees note to the cashier, during cross-

examination, he admitted that he was not present when the transaction took place and he also did not notice the 500 rupee note.

PW-1 the informant deposed that the accused/appellant Sabin Deka gave him a 500 rupee note, which he suspected to be forged and accordingly

informed the police and handed over the note to police. According to him, police seized seven numbers of currency notes of 500 denomination from

the accused/appellant.

PW-4, Shahnur Choudhury stated that on 01.07.2003 Sabin Deka sold a pair of cows to one Satish Biswas for an amount of Rs.4,200/- and Satish

Biswas paid Rs.4000/- in cash and Rs.200/- was kept balance to be paid in the next market. He also stated to have stood as guarantor for making the

payment of Rs.200/-. On the next market when Sabin Deka gave a 500 rupee note to the mahaldar in connection with the sale and purchase of the

cow, the said note was found to be counterfeit. During cross-examination, PW-4 admitted that he was not present when money was paid by the

accused/appellant Sabin Deka to the lessee of the market. Thus, none of the PW-3 or PW-4 had seen the accused appellant giving 500 rupee note to

PW-1.

Though eight numbers of Rs.500/- notes were shown to have been seized vide Ext.2 seizure list and sent for forensic examination, Ext.2 does not

support the oral evidence of the PW-1, inasmuch as, there was no mention in the Ext.2 that those notes were seized from the accused appellant.

Rather Ext.2 seizure list (serial number 5) shows that all the eight fake currency notes were seized from Nagen Basumatary (PW-1) and not from the

accused. The investigating officer PW-6 stated that the eight currency notes were seized from Nagen Basumatary. According to PW-6, Nagen

Basumatary told that the notes were handed over to him by the accused. However, PW-1 Nagen Basumatary stated in his evidence and also in the

FIR that accused gave him only one 500 rupee note. According to PW-1, police seized 7 (seven) numbers of 500 rupee note from the accused.

Therefore, the evidence of PW-1 and PW-6 appears to be contradictory and mutually destructive so far the seizure of currency note from the

accused is concerned. What therefore crystalises from the evidence, oral as well as documentary is that there was no legal evidence to prove that

eight numbers of currency notes involved in the present case were seized from the possession of the accused.

So far one Rs.500/- note is concerned, the accused/appellant admitted in his examination under Section 313 Cr.P.C. that on the previous market he

sold a pair of cows to Satish Biswas (co-accused) who paid Rs.4000/- in terms of eight 500 rupee notes, out of which one 500 rupee note he gave to

the Mahaldar and later, on being asked by PW-1, he handed over all the seven notes to PW-1. Apparently, the accused stated in his examination

under Section 313 Cr.P.C. that he handed over eight currency notes of 500 denomination to PW-1, which he received from Satish by selling cows.

The conviction of the accused is found to have been based on the statement of the accused under Section 313 CrPC. What is evident from the

statement of the accused under Section 313 CrPC is that he received 8 numbers of currency notes of 500 denomination from Satish, which he handed

over to PW-1. But prosecution evidence are found to be short of proving beyond doubt that the eight numbers of currency notes seized from PW-1,

were the notes, given by the accused to PW-1, inasmuch as, no evidence was adduced to establish that the seized notes were given by the accused to

PW-1.

Even if it is assumed for the sake of argument that the fake currency notes seized from PW-1 were given by the accused, then in order to

establish a charge under Section 489-B, prosecution needs to prove the following ingredients.

(i) The notes in question were currency notes or bank notes.

(ii) Such currency notes or the bank notes were counterfeit.

(iii) The accused sold or bought from or received from any person or otherwise trafficked in or used as genuine any forged or counterfeit notes.

(iv) The accused know or had reason to believe it to be forged or counterfeit.

The above essential ingredients of the offence under Section 489-B would show that, mere possession or using counterfeit note itself would not

constitute an offence under Section 489-B IPC, unless men-rea i.e. the accused had the knowledge that the notes were counterfeit and with such

knowledge he had used or sold the same.

The evidence brought on record clearly indicated that the accused appellant received eight numbers of 500 rupees notes by selling cows and the

notes which was given to the Pw-1, was one of the said notes which he received from the co-accused, Satish. That the accused/appellant sold his

cows to Satish Biswas (co-accused and since acquitted) and received only 4000/- is also supported by the prosecution witness Pw-3. No evidence is

brought on record to show that the accused/appellant had the knowledge that the said currency notes were not genuine. There was also no evidence

on record to show that the notes were of such, that any layman by merely looking can say that the notes are not genuine, inasmuch as, the evidence of

the PW-5, the forensic expert clearly demonstrated that in order to ascertain whether the notes were genuine or fake notes, he had to photograph the

notes besides, under taking other scientific examination. When the notes were such that by mere look it was not possible to say that those were

counterfeit, there could not be a presumption of knowledge. Therefore, in absence of evidence, that the accused had the requisite mens-rea or

knowledge with regard to the notes in question, conviction of the accused was not possible. The Apex Court in Mammuti Vs. State of Karnataka

(1997) 4 SCC 723 observed on similar facts that in absence of evidence that the accused had the knowledge or reason to believe that the notes were

counterfeit, conviction is not proper.

In Umashankar Vs. State of Chattishgarh (2001) 9 SCC 642, the Apex Court held that :

“8. A perusal of the provisions, extracted above, shows that mens rea of offences under Section 489-B and 489-C is, ""knowing or having reason to

believe the currency-notes or bank notes to be forged or counterfeit"". Without the afore-mentioned mens rea selling, buying or receiving from another

person or otherwise trafficking in or using as genuine forged or counterfeit currency-notes or bank-notes, is not enough to constitute offence under

Section 489-B of I.P.C. So also possessing or even intending to use any forged or counterfeit currency-notes or bank-notes is not sufficient to make

out a case under Section 489-C in the absence of the mens rea, noted above. No material is brought on record by the prosecution to show that the

appellant had the requisite mens rea……………………………..â€​

In absence of any evidence that the accused/appellant had the knowledge that notes were counterfeit, the conviction of the accused appellant

cannot be sustained. In any view of the matter, the evidence brought on record in the instant case, appears to be grossly inadequate to bring home the

charge under Section 489-B IPC, against the appellant, and as such, the conviction and sentence of the accused appellant cannot be maintained.

Accordingly, appeal is allowed and conviction and sentence are set aside.

The accused be released forthwith if not required in any other case.

Send down the LCR.