Tika Ram vs State of U.P.

Surendra Vikram Singh Rathore, J.—Challenge in this appeal is to the judgment dated 6.12.2005, passed by the Additional Sessions Judge/Fast Track Court No. 1. Bahraich, in S.T. No. 61/2004, under Sections 489B and 489C of Indian Penal Code. Police Station Rupaideeha, District Bahraich, whereby the sole appellant Tika Ram Giri was held guilty for offence under Sections 489B and 489C of I.P.C. and for the offence u/s 489B, I.P.C. he was sentenced to undergo rigorous imprisonment for a period of 15 years, studded with the fine of Rs. 50,000 with default stipulation of two years simple imprisonment. For the offence u/s 489C, I.P.C., he was sentenced to undergo rigorous imprisonment for a period of 7 years and also with fine of Rs. 10,000 with default stipulation of one year''s simple imprisonment. In brief, the case of the prosecution is that on 28.11.2003 when the Sub-Inspector Ganpat Singh alongwith three other constables was on patrol duty in Police Jeep No. U.P. 40-A 5625 then, at about 5.00 p.m. he got a secret information through informer that a citizen of Nepal is present near private bus stand alongwith fake Indian currency notes of denomination of Rs. 500, which he shall distribute amongst the labourers of the brick-kiln and shall take them to Nepal.

Relying on this information the police procured independent witness Mohd. Saleem while other persons did not agree to become witnesses. Thereafter the police party searched each other and on being satisfied that none of them had any objectionable material then they went to the private bus stand, leaving the jeep and the driver at about 5.20 p.m. When this police party reached near the shop of Raju Tea Vendor then they saw that 3-4 persons were indulged in conversation for giving and taking notes of Rs. 500, when those persons saw the police party then they started running. The police party was successful in apprehending the appellant who disclosed his name and address and on his search 71 notes of Rs. 500 denomination each were recovered from the left inner pocket of his leather Jacket. On interrogation he disclosed that because of greed, he had purchased" these notes from one Veer Bahadur Kesi, a resident of Lamhi, District Danng (Nepal).

Thereafter the police party prepared the recovery memo and the accused-appellant was taken into custody. The recovered counterfeit currency notes were sealed in a separate cloth. Apart from these notes, Rs. 6,000 of Indian currency notes were also recovered from him.

On the basis of this recovery memo Case Crime No. 336/2003 under Sections 489B and 489C, I.P.C. was registered against the appellant. The recovered currency notes were sent to Reserve Bank of India, Kanpur and all the 71 notes were found to be counterfeit. Report of the Reserve Bank of India is Ext. Ka-4. After completing the investigation the police submitted charge-sheet against the appellant. In order to prove its case the prosecution examined P.W. 1 S.I. Ganpat Singh, P.W. 2 Constable Atul Ratan Singh, P.W. 3 Mohd. Saleem (independent witness) as witnesses of the fact. P.W. 4 is S.O. Ramesh who has investigated this case, P.W. 5 is M.P. Das, Manager, Reserve Bank of India, Kanpur who has proved the report Ext. Ka-4, P.W. 6 is Constable Ramayan Yadav who took the notes to Reserve Bank of India in sealed condition and brought the examination report of the currency notes, P.W. 7 is constable clerk Bhanu Prakash who has proved chick report and G.D. of the case.

The case of defence was that he has been falsely implicated in this case. He was going to Kanpur to deposit the fees of his son. The police party arrested him under suspicion that he belongs to the group of Maoist. He was kept in custody for a period of three days. When police could not get any evidence from Nepal then he was falsely implicated in this case. No evidence in defence was produced on behalf of the appellant.

Learned trial court after discussing the evidence held the appellant guilty under Sections 498B and 489C, I.P.C. and convicted him as above, hence this appeal.

Heard learned counsels for the parties.

The argument of learned counsel for the appellant is that the appellant has already undergone more than 8 years of detention. He has no criminal history. He is resident of Nepal. Because of his detention his family is starving. It is further submitted that he has already undergone sentence inflicted upon him for the offence u/s 489C, I.P.C. and technically no offence u/s 489B is made out against him because there is no evidence that the appellant had any reason to believe that the recovered notes were counterfeit or fake.

The argument of learned counsel for the appellant is limited only to the extent that the conviction of the appellant u/s 489B, I.P.C. is not sustainable as he has been convicted on the basis of the presumption by the trial court.

Learned A.G.A. has supported the judgment of the trial court and has stated that the learned trial court has given cogent reasons for holding that the appellant had reason to believe that the notes which he was carrying were counterfeit.

Now the only point to be considered in this case is whether on the basis of the evidence in this case it can be said that the offence u/s 489B, I.P.C. is made out against the appellant or not. Before proceeding further in the matter I would like to mention the Section 489B, I.P.C., which reads as under:

[489B. Using as genuine, forged or counterfeit currency-notes or bank-notes.--Whoever sells to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, 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.

Words ''reason to believe'' has been discussed by the Hon''ble Apex Court in different cases. In the case of N. Nagendra Rao and Co. Vs. State of Andhra Pradesh, Hon''ble Apex Court held that "the expression ''reason to believe'' has been interpreted that in the mind of court even though formation of opinion may be subjective but it must be based on material on the record. It cannot be arbitrary, capricious or whimsical.

Hon''ble Apex Court in the case of Dr. Jai Shanker (Lunatic) through Vijay Shanker Brother Guardian Vs. State of Himachal Pradesh, has held that "words ''reason to believe'' mean a belief which a reasonable person would entertain on facts before him. In the case of Dr Partap Singh and Another Vs. Director of Enforcement, Foreign Exchange Regulation Act and Others, Hon''ble Apex Court has held that "the expression ''reason to believe'' is not synonymous with the subjective satisfaction of the officer, the belief must be held in good faith, it cannot be merely a pretence. It is open to the court to examine the question whether the reason or the belief for a rational action or relevant bearing to the formation of the belief are not extraneous or irrelevant for the purpose of the section.

Phrase ''reason to believe'' has been defined in Section 26 of the Indian Penal Code as under:

"Reason to believe".--A person is said to have "reason to believe a thing if he has sufficient cause to believe that thing but not otherwise.

Therefore, the words ''reason to believe'' mean definitely some thing more than a mere presumption or suspicion.

The grievance of the appellant is that the learned trial court has presumed that appellant had knowledge that the notes were fake currency notes and for this presumption he has relied upon the large number of currency notes which are alleged to have been recovered and also the statement made by the appellant himself while he was in police custody during the interrogation by the police.

u/s 489B, I.P.C. the burden is on the prosecution to prove that at the time when the accused was passing the notes he knew that they were fake. The mere possession of such notes by him does not shift the burden upon the accused to prove his innocence.

In this case, it is not in dispute that the appellant was in possession of the notes, alleged to have been recovered from him. This fact has not been challenged in this appeal but the question remains to be decided is, as to whether he had reason to believe that the said currency notes were fake.

In view of the aforesaid legal position the impugned judgment was looked into. It is clear from the judgment that on the basis of the recovery of 71 counterfeit notes learned trial court presumed that the appellant had sufficient reason to believe that these notes were counterfeit and fake.

The presumption of the trial court cannot be said to be baseless. It is nowhere the case of the appellant that he got this money from a particular person as a consideration of some transaction and he himself is the victim of the offence,. The statement which was given by him during the interrogation by the police has been resiled and now his version is that the police arrested him as a suspected member of Mao group when no evidence could be procured by the police to that effect, then he was falsely implicated in this case.

A perusal of the record shows that information of the arrest of the appellant was given by the police to his cousin Dhruv Yogi. This fact has no where been challenged by defence. If the appellant was kept at the police station for three days then someone of his family might have made an effort to search him out or move any application before any authority for his release but no such step was taken on behalf of the appellant, by any of his family members.

The story of false implication also does not appeal to reason because the police could not have any intention to falsely implicate a person of a different country. It is unbelievable that simply for the purpose of false implication such a large number of notes shall be planted by the police. When the defence taken by the accused-appellant is not found to be correct and his version given at the time of interrogation has already been resiled by him then the position which emerges is that the appellant failed to offer any explanation for the possession of the said notes.

Hon''ble Apex Court in the case of Ennoswami v. State of U.P., 1997 SCC (Cr) 217, has held that the appellant offering no explanation as to from where he got the fake currency notes. Silence on his part was a telling circumstance.

Therefore, in the facts of this case also the appellant is not coming with any definite explanation regarding possession of the notes. In absence of any explanation, the natural inference as gathered by the trial court cannot be said to be illegal or wrong. Section 106 of the Evidence Act thus also comes into play, in the facts of this case, which reads as under:

Section 106.--When any fact is specially within the knowledge of any person, the burden of proving that fact is upon him.

Therefore, finding of the trial court regarding guilt of the appellant for the offence under Sections 489B and 489C cannot be said to be wrong and accordingly the same deserves to be confirmed and is hereby confirmed.

In the alternative it was argued that the appellant has already served more than 8 years of his sentence, he is a citizen of Nepal and his family is suffering badly and has come on the verge of starvation, he has become sick and infirm, therefore, leniency on the point of sentence is prayed.

Sections 489B and 489C of I.P.C. do not provide for any minimum sentence. The appellant is in custody since the date of his arrest, i.e., 28.11.2003, which means that he has already served out more than 8 years and 5 months'' of sentence.

Therefore, keeping an over all view of the matter this Court is of the considered opinion that the appeal deserves to be partly allowed, only the sentence deserves to be modified to the extent of sentence already undergone by the appellant in this case, on the special grounds submitted by his learned counsel.

Accordingly the appeal is hereby partly allowed. Conviction of the appellant under Sections 489B and 489C of I.P.C. is hereby confirmed. The sentences passed against the appellant are modified to the extent of the period already undergone by him in this case. He shall be released forthwith if not wanted in any other case. Office is directed to communicate this order forthwith to the court concerned for immediate compliance.