Kanwaljit Singh Ahluwalia, J.@mdashAppellant Dalip Singh was tried by the Court of Additional Sessions Judge, Panipat in a case FIR No. 61 dated 25.01.1998 registered at Police Station Model Town Panipat under Sections 420, 511, 467, 468, 471, 474, 489A, 489C IPC.
2. The trial Court charged the Appellant for offences punishable under Sections 420/511 IPC, 489A and 489C IPC. After conclusion of the trial, the Court vide its judgment dated 20th December, 2001, acquitted the Appellant of offences u/s 420/511 and 489A IPC, but convicted him u/s 489C IPC for possession of forged currency notes and vide an order dated 21st December, 2001 sentenced him to undergo rigorous imprisonment for a period of one year.
3. Prosecution case, as contained in the FIR Ex.P12, is that ASI Pawan Kumar, In-charge of Police Post Kacha Camp, Panipat, along with his companion police officials, was present at Kabri Phatak on patrol duty, when one Manohar Lal appeared and disclosed that accused is residing in a rented house in Hari Nagar, Panipat and he can double Rs. 50,000/- to Rs. 1.00 lakh. Manohar Lal further told that the accused is having forged notes and in case raid is conducted, the accused can be apprehended red-handed. The police party, along with Manohar Lal and other officials, was proceeding towards the house of the accused, when on the way he was apprehended. On interrogation, the accused disclosed his name as Dalip Singh son of Piara Singh. The accused was carrying a suitcase in his hand, the key of which was taken from him and the suitcase was opened. It contained 52 notes in the denomination of Rs. 100/-, 59 notes of Rs. 50/-, 6 notes of Rs. 10/-and two packets of white paper equal to the size of Rs. 100/-note. On checking, it was found that two notes of Rs. 10/-were having similar number i.e. 41Q807335, two notes of Rs. 10/-were having similar number i.e. 41Q807334, two other notes of Rs. 10/-were having similar number i.e. 46E786713, two notes of Rs. 50/- were having similar number i.e. 4KU596633, two other notes of Rs. 50/-were having similar number i.e. 4CE455133 and two notes of the denomination of Rs. 100/-were having similar number i.e. 2BH722188. Two small plastic containers were also recovered from the accused, out of which one was containing white powder. ASI Pawan Kumar had sent a ruqa from the spot to the Police Station, on the basis of which a case was registered. The currency notes were sent to Government of India Bank Note Press, Dewas (Madhya Pradesh). The report Ex.P15 received from the Government Press reads as under:
The notes of Rs. 50/-deno. and Rs. 100/-were received by post in sealed condition and are being sent herewith in sealed condition by regd. & insured post.
1. The notes of Rs. 50/-deno. and Rs. 100/-deno. marked as ''A'' ''A'' and ''A'' respectively are genuine notes.
2. The notes of Rs. 50/-deno. and Rs. 100/-deno. marked as B,C and B respectively are forged notes. The last numerical in C(''B'' at top and bottom), the last but one numerical in ''B'' (''B'' at top and bottom) and the last but one numerical in B (3 at top and bottom) have been changed in to 3, 3, 8 respectively by extra polation with red ink and removing the red ink
4. Prosecution examined HC Ram Kumar as PW-1, who stated that the currency notes and articles were taken in police possession vide memo Ex.P1. He is an attesting witness to the recovery memo. Inspector Randhir Singh PW-3 had prepared a report submitted u/s 173 Code of Criminal Procedure SI Pawan Kumar PW-4 was the Investigating Officer.
5. Manohar Lal PW-2, who had informed the police officer and was associated by the police party as an independent person, was declared hostile as he had not supported the prosecution case.
6. Thereafter, prosecution closed its evidence and a statement of the accused Appellant was recorded u/s 313 Code of Criminal Procedure He denied all the incriminating circumstances put to him and pleaded false implication.
7. In defence, Lakhbir Singh appearing as DW-1, stated that Dalip Singh was arrested in an excise case and was later-on falsely implicated in a case of counterfeit currency notes.
8. The trial Court held that the recovery memo Ex.P1 was signed by another Ram Kumar Constable No. 18, who was given up as unnecessary. The complainant Manohar Lal PW-2 had not supported the prosecution case and the only evidence left for consideration of the Court was the testimony of ASI Pawan Kumar PW-4. The trial Judge held as under:
14. As regards the currency notes being forged, the report Ex.P8 of Bhartiya Reserve Bank Note Mudran Ltd. found two currency notes of Rs. 10/-denomination bearing identical No. 46E-786713, with insert letter ''R'' in the numbering panel. It was also opined that genuine No. 46E-786718 unit figure ''8'' had been tempered with and changed to figure ''3''. Thus said notes were opined to be ''genuine tempered notes''.
9. From the report Ex.P15 and the findings of the trial Judge recorded in para No. 14 of the impugned judgment, reproduced above, it is apparent that somebody has changed the numbers of the currency notes with red ink. Thus, it cannot be said that any counterfeit currency was being used by the Appellant.
10. Whether the Appellant had the knowledge that notes in his possession were forged, is an essential ingredient which prosecution was bound to prove.
11. In the present case, numbers of the currency notes have been changed with ink. Genuine notes were tampered with. The accused will not have the knowledge that the notes in his possession were counterfeit. No presumption can be drawn unless the prosecution, by leading some evidence, proves that the accused knew that notes in his possession have been tampered with. Manohar Lal, independent witness has not supported the prosecution case. The recovery memo Ex.P1 was attested by HC Ram Kumar Constable No. 18. In the Court, HC Ram Kumar Constable No. 69 appeared as a witness and though his name is written on the recovery memo Ex.P1, he is not a signatory to the same. Therefore, having observed that Manohar Lal and Ram Kumar Constable No. 18 have not supported the case of prosecution, the trial Judge committed an error by placing implicit reliance upon the testimony of ASI Pawan Kumar PW-4.
12. In the Government Press, on two notes marked as ''B'' and ''C'', the numericals have been changed with the ink. Who changed the numerals? The question remained unanswered. The accused has taken a categoric stand in his statement recorded u/s 313 Code of Criminal Procedure that he was arrested in an excise case and was later-on involved in the present case, as he could not satisfy the demand of the police. It is not a case, where the entire recovery effected from the accused was of counterfeit currency notes.
13. In
7. A perusal of the provisions, extracted above, shows that mens rea of offences under Sections 489B and 489C, "knowing or having reason to believe the currency-notes or bank-notes are 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 u/s 489B or 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 u/s 489C 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. The High Court, however, completely missed this aspect. The learned trial judge on the basis of the evidence of P.W. 2, P.W. 4 and P.W. 7 that they were able to make out that currency note alleged to have been given to P.W. 4, was fake "presumed" such a mens rea. On the date of the incident the Appellant was said to be 18 years old student. On the facts of this case the presumption drawn by the trial court is not warranted u/s 4 of the Evidence Act. Further it is also not shown that any specific question with regard to the currency-notes being fake or counterfeit was put to the Appellant in his examination u/s 313 of Criminal Procedure Code. On these facts we have no option but to hold that the charges framed under Sections 489B and 489C are not proved. We, therefore, set aside the conviction and sentence passed on the Appellant under Sections 489B and 489C of I.P.C. and acquit him of the said charges [see:
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15. A Division Bench of Calcutta High Court, in
7. There is no material before us to show that the Appellant had the requisite knowledge that the three fifty rupee notes found from his possession were fake notes nor is there anything to suggest that with the knowledge that they were fake the accused had the knowledge or reason to believe that the said questioned note was a forged one, the question of his palming it off as genuine could not arise. Therefore, the conviction u/s 489C is altogether bad.
16. A Single Bench of this Court, in
9. Sections 489A to 489D were originally not in the Indian Penal Code but were introduced later by the Currency Notes Forgery Act (XII of 1899). Since in the aforesaid Sections the word ''counterfeit'' has been employed it is futile to confine the definition of the word ''counterfeit'' given in Section 28 of the Indian Penal Code to coins alone. P.W.2 Sh. Darshan Kumar Ahluwalia too wishes to confine counterfeiting to coins but that impression of his is plainly wrong. But can ''made-up notes'' be termed as ''counterfeit notes'' is one question and the other one is can ''made up notes'' be ''forged notes''. Now counterfeiting is a process by which one thing is caused to resemble another thing. It presupposes that there is an original. The act of counterfeiting is the effect of producing another so as to resemble the original, and the object of which is to practice deception, or knowing it likely that the deception will thereby be practiced. In a made-up note, both parts thereof are original portions of the genuine notes. Could two different portions of two genuine currency notes by putting them together amount to counterfeiting is a subtle question which poses to be answered. If it is taken that by joining two different pieces of two genuine currency notes, the end product in the shape of a made-up note would still be a genuine currency note then it would not be counterfeiting. But if is taken that by joining two different portions of two different currency notes would turn out the end-product to be a note which is made to resemble the genuine currency note (represented by one part or the other part) then obviously a new thing has come into being so as to resemble another. The object of placing together two different pieces of two genuine currency notes as a made-up note presupposes to create a new legal tender which it otherwise is not. The mere fact that such notes are changeable at face value from the Reserve Bank of India it being its issuing authority as the promissory thereof, and giving the bearer the sum represented in the note torn is of no consequence. But in order to retain the character of a currency note it has to maintain its original character and any act practiced to make it resemble like if retaining its original character, would to my mind be counterfeiting so as to come within the mischief of Sections 489A to 489D, Indian Penal Code. There can be no quarrel with the opinion expressed by Sh. Darshan Kumar Ahluwalia, P.W.2, that a made-up note is not a forged note since no mechanical process is involved. Since no process as is known to Sections 463 and 464, Indian Penal Code, is involved in making a made-up note, the allegation of forgery to my mind is completely out in the process.
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11. With regard to the case of Bachan Singh it is to be noted that he was found in possession of 13 counterfeit ten rupee notes. He is an iron-smith by profession and barely literate. How could he have the knowledge or reason to believe the same to be counterfeit is one part but the other important part is whether he intended to use the same as genuine or that they may be used as genuine has further to be proved by the prosecution. It was held in Bur Singh v. the Crown (1931) Cri. LJ 351) (Lah) (supra), that mere possession of a forged note is not an offence under the Indian Penal Code and in order to bring a case within the purview of Section 489C, Indian Penal Code, it was not only necessary to prove that the accused was in possession of forged notes but it should further be established that:
(a) at the time of his possession he knew the notes to be forged or had the reason to believe the same to be forged or counterfeit; and.
(b) he intended to use the same as genuine. No further collateral circumstances in the case have been brought forth such as the accused had palmed off such notes before, or that he was in possession of such and similar notes in such large numbers, that his possession for any other purpose was inexplicable.
17. In ''Ram Kumar v. State of Haryana 2010(3) RCR 621, relying upon the definition of ''counterfeit'' u/s 28 of IPC, this Court has also held that mere change of number with the ink will not constitute an offence punishable u/s 489C IPC.
18. In view of the position of law, which has been noticed in this judgment, this Court is not in a position to say that accused had the requisite knowledge that notes found from his possession were fake notes and there is no material available to show that the accused also had the knowledge or reasons to believe that the notes in his possession were forged one. Furthermore, mere change of number on the note will not make the note counterfeit. Prosecution has also not led any evidence to prove that by using the ink, it was the accused, who had changed the number of notes.
19. Thus, taking into consideration the law on the subject noticed above and the facts of the case, this Court is of the opinion that as a matter of abundant caution, benefit of doubt can be extended to the Appellant.
20. Hence, the present appeal is accepted. Conviction and sentence of the Appellant is set aside and he is hereby acquitted of the charges.
