State of Himachal Pradesh vs Balwinder Singh

Sanjay Karol, J.—Assailing the judgment dated 9.7.2008, passed by learned Sessions Judge, Una, District Una, H.P., in Sessions Case No. 14 of 2005 (Sessions Trial No. 09/2005), titled as State of H.P. vs. Balwinder Singh & another, whereby respondents-accused stand acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

It is the case of prosecution that on 17.4.2005, accused purchased certain articles from the shop of Vashisht Kumar (PW-1) who apprehending that the currency notes given to him were fake informed the police. Inspector Ajay Rana (PW-10) along with ASI Darshan Singh (PW-9), HC Prabhat Chand, HHC Karnail singh and HHC Jaswant Singh, after recording entry in the Daily Diary Register (Ext. PW-8/A) reached the spot i.e. Pir Nigaha and recorded the statement of PW-1 (Ext. PW-1/B) under Section 154 Cr. P.C. on the basis of which F.I.R. No. 248 of 2005, dated 17.4.2005 (Ext. PW-5/A) was registered at Police Station Una, under the provisions of Sections 489-B and 489-C of the Indian Penal Code, against the accused. Currency notes were sealed with seal impression-A and seized vide memo (Ext. PW-2/A). They were of denominations of Rs. 50/- and Rs. 100/-. Similarly notes which were produced by Rakesh Kumar (PW-3), which were handed over by accused Surjit Singh, were also sealed and seized in similar manner. Currency notes were sent through constable Mulkh Raj (PW-7) to the Government of India, Bank Note Press, Dewas, Madhya Pradesh and report (Ext. PW-10/B) obtained by the police, revealed them to be fake. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.

Accused were charged for having committed offences punishable under the provisions of Sections 489-B and 489-C of the Indian Penal Code, to which they did not plead guilty and claimed trial.

In order to prove its case, in all, prosecution examined ten witnesses and statements of the accused under Section 313 Cr. P.C. were also recorded, in which they took plea of innocence and false implication. No evidence in defence was led by the accused.

Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offences. Hence, the present appeal by the State.

We have heard Mr. B.S. Parmar and Mr. Ashok Chaudhary, learned Addl. Advocate Generals assisted by Mr. Vikram Thakur, Dy. A.G. on behalf of the State as also Mr. N.K. Thakur, learned Senior Advocate assisted by Mr. Surinder Sharma, learned Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.

It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offences.

In Prandas Vs. The State, , Constitution Bench of the apex Court, has held as under:

"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.C., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - AIR 1934 227 (Privy Council), in these words:

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." "

Significantly in the instant case independent witness Vashisht Kumar (PW-1), Rachpal Singh (PW-2) and Rakesh Kumar (PW-3) to whom currency notes were alleged handed over by the accused, for purchasing certain articles, have not supported the prosecution case at all. Despite their extensive cross examination nothing fruitful could be elicited from their testimonies.

PW-1 categorically states that he was called to Police Post, Pir Nigaha and asked to produce the currency notes kept in his chest box. Accordingly two currency notes of denomination Rs. 50/- each were produced by him which were seized by the police for the reason that they were fake. He categorically denies accused having purchased any parshad from him or his shop.

Rachpal Singh (PW-2) states that police recovered the currency notes from the custody of the accused. He categorically denies accused having purchased any parshad from the shop of PW-1 or the police having effected any recovery of notes from him. He thus belies the genesis of the prosecution case.

Significantly notes allegedly recovered from the accused had no identification marks. Thus currency notes so recovered cannot be linked to the accused.

Testimony of Rakesh Kumar (PW-3) is somewhat to similar effect. He denies that accused purchased any parshad from him or handed over fake currency notes to him.

Amritpal Singh (PW-4), Manager of the inn, where accused allegedly stayed and to whom fake currency notes were handed over, which also were seized by the police, though was never cross examined by the Public Prosecutor but in our considered view has not supported the prosecution, for he admits that accused were not known to him from before and he could not identify an un-identified person if he had stayed in his inn, even for a day.

Even perusal of testimony of relevant police official ASI Darshan Singh (PW-9) does not establish the prosecution case beyond reasonable doubt. Significantly person who took ruka from the spot has not been examined and SI-Jagjit Singh (PW-5) does not remember his name despite the fact that he registered the F.I.R. He does not remember the direction in which the shop of Rachpal Singh is located from the shop of Vashisht Kumar. In our considered view testimony of this witness required corroboration from other members of the raiding party, who were never examined in Court. He does not remember whether shop keepers of the adjoining shops were summoned for investigation or not or that Vashisht Kumar had produced the currency notes from the cash box or from his own pocket.

Be that as it may, Darshan Singh (PW-9) admits that currency notes produced before the Court are neither sealed nor packed in a parcel. Now if seals were broken then the possibility of tampering with evidence cannot be ruled out.

The apex Court in K. Hashim Vs. State of Tamil Nadu, has observed as under:-

"44. Further question that was raised is whether the essential ingredients of Sections 489-A, 489-C and 489-D are satisfied. The said provisions read as follows:

"489-A. Counterfeiting currency notes or bank notes:- Whoever counterfeits, or knowingly performs any part of the process of counterfeiting, any currency note or bank note 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.

Explanation: For the purposes of this section and of sections 489-B, 489-C, 489-D and 489-E the expression ''bank note'' means a promissory note or engagement for the payment of money to bearer on demand issued by any person carrying on the business of banking in any of the world, or issued by or under the authority of any State or Sovereign Power, and intended to be used as equivalent to, or as a substitute for money.

489-C. Possession of forged or counterfeit currency notes or bank notes:- Whoever has in his possession any forged or counterfeit currency note 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.

489-D. Making or possessing instruments or materials for forging or counterfeiting currency notes or bank notes:- Whoever makes, or performs, any part of the process of making, or buys or sells or disposes of, or has in his possession any machinery, instrument or material for the purpose of being used, or knowing or having reason to believe that it is intended to be used, for forging or counterfeiting any currency note or bank note, 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."

The expression ''counterfeit'' is defined in Section 28 IPC. The same reads as follows:

"28. Counterfeit:- A person is said to ''counterfeit'' who causes one thing to resemble another thing, intended by means of that resemblance to practice deception, or knowing it to be likely that deception will thereby be practiced.

Explanation 1: It is not essential to counterfeiting that the imitation should be exact.

Explanation 2: When a person causes one thing to resemble another thing, and the resemblance is that a person might be deceived thereby, it shall be presumed until the contrary is proved, that the person so causing the one thing to resemble the other thing intended by means of that resemblance to practice deception or knew it to be likely that deception would thereby be practiced."

Sections 489A to 489E deal with various economic offences in respect of forged or counterfeit currency notes or bank notes. The object of legislature in enacting these provisions is not only to protect the economy of the country but also to provide adequate protection to currency notes and bank notes.

Section 489-A not only deals with complete act of counterfeiting but also covers the case where the accused performs any part of the process of counterfeiting. Therefore, if the material shows that the accused knowingly performed any part of the process of counterfeiting, Section 489-A becomes applicable.

Similarly Section 489-B relates to using as genuine forged or counterfeited currency notes or bank notes. The object of Legislature in enacting this section is to stop the circulation of forged notes by punishing all persons who knowing or having reason to believe the same to be forged do any act which could lead to their circulation.

Section 489-C deals with possession of forged or counterfeit currency notes or bank notes. It makes possession of forged and counterfeited currency notes or bank notes punishable. Possession and knowledge that the currency notes were counterfeited notes are necessary ingredients to constitute offence under Section 489-C and 489-D. As was observed by this Court in State of Kerala Vs. Mathai Verghese and Others, the expression ''currency notes'' is large and wide enough in its amplitude to cover the currency notes of any country. Section 489-C is not restricted to Indian currency note alone but it includes dollar also and it applies to American dollar bills.

The wording of Section 489-D is very wide and would clearly cover a case where a person is found in possession of machinery, instrument or materials for the purpose of being used for counterfeiting currency notes, even though the machinery, instruments or materials so found were not all the materials particular (sic) required for the purpose of counterfeiting.

Section 28 defines the word ''counterfeiting'' in very wide terms. The main ingredients of counterfeiting as laid down in Section 28 are:

(1) causing one thing to resemble another thing;

(2) intending by means of that resemblance to practise deception; or

(3) knowing it to be likely that deception will thereby be practised.

Thus, if one thing is made to resemble another thing and the intention is that by such resemblance deception would be practised or even if there is no intention but it is known to be likely that the resemblance is such that deception will thereby be practised there is counterfeiting. [See The State of Uttar Pradesh Vs. Hafiz Mohammad Ismail and Hafiz Jawed Ali, ]

In the said case it was observed that there is no necessity of importing words like "colourable imitation" therein. In order to apply Section 28 what the Court has to see is whether one thing is made to resemble another thing and if that is so and if the resemblance is such that a person might be deceived by it, there will be a presumption of the necessary intention or knowledge to make the thing counterfeit, unless the contrary is proved.

"Counterfeit" in Section 28 does not connote an exact reproduction of the original counterfeited. The Explanation 2 of Section 28 is of great significance. It lays down a rebuttable presumption where resemblance is such that a person might be deceived thereby. In such a case the intention or the knowledge is presumed unless contrary is proved."

In the instant case by applying the aforesaid principles it cannot be said that prosecution has been able to prove, beyond reasonable doubt, guilt of the accused to the alleged crime.

Having perused the testimony of prosecution witnesses on record, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, to the effect that accused were found in possession of fake and forged currency notes and circulated the same as genuine knowing the same to be forged, by leading clear, cogent, convincing and reliable material on record. It cannot be said that findings returned by the Court below are not borne out from the record, are perverse, illegal, erroneous or arisen out of incomplete appreciation of the prosecution evidence.

The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , since it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.

For all the aforesaid reasons, present appeal, devoid of merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be immediately sent back.