Subrata Talukdar, J.@mdashThis is an appeal arising out of the judgement and order of conviction dated 29th June, 1989 passed by the Ld. Additional Sessions Court, Siliguri, in Sessions Case No. 40 of 1986 convicting the appellant under Sections 489B and 489C of the Indian Penal Code.
2. The charge, in brief against the appellant was that on 13th August, 1981 at about 11 a.m. the appellant tendered Rs. 13,648.20 paise in notes/coins of several denominations at the cash counter of State Bank of India, Main Branch, Hill Cart Road, Siliguri. The said currency was contained in a stitched packet of hundred rupee notes bearing the name of the organization, Hari Shankar Prasad Harak Chand Prasad of Siliguri.
3. At the cash counter the currency notes were received by one Smt. Sarita Sherpa, Cashier. At the time of counting of the said notes by Smt. Tripti Chakraborty, Cashier a forged currency note of Rs. hundred bearing the Sl. No. 2BF423912 was detected. The matter was reported to the then Branch Manager, Sri N.K. Das who then reported the same to the officer-in-charge, Siliguri Police Station. Hence the charge.
4. Sri Dipanjan Dutt, Ld. Counsel appointed as Amicus Curiae takes this court to the evidence of PW1, the then Deputy Head Cashier of the Bank. Ld. Counsel points out that all the hundred rupee notes were stitched together and bearing the seal of the firm. PW1 states that in the bundle one hundred rupee note was found to fake.
5. In his cross-examination, to which Ld. Amicus Curiae draws the attention of this Court, PW1, inter alia, states:-
"Even common man can detect or forged note by looking to it carefully.
Anybody can tender money for deposits in Bank for anybody and the tenderer is not required to sign those Draft Vouchers or the pay-in-slips so tendered.
The accused had tendered the money for and on behalf of Hari Shankar Prasad Harak Chand Prasad of Alupatty, Siliguri.
I know him as he frequently deposits money in the Bank for Hari Shankar Prasad and Harak Chand Prasad."
6. Ld. Amicus Curiae next takes this Court to the evidence of PW2, Smt. Tripti Chakrabory, the then Cashier of the Bank. In her evidence PW2 states that she was sitting behind the Cashier Sarita Sherpa for the purpose of counting the notes received at the counter. At about 11 a.m. messenger gave the notes received at the counter among which there was a bundle of hundred rupee notes stitched together with a printed flap containing the name of Hari Shankar Prasad Harak Chand Prasad. It is the further evidence of PW2 that during counting she suspected the genuineness of one of the hundred rupee notes in the said bundle.
7. Ld. Counsel further takes this Court to the cross-examination of PW2, who also identified the appellant in court, stating as follows:-
"The forged note has been detected by me for the first time at the time of counting the same. I cannot say if it could be detected by a common man or not if mixed up with some other hundred rupee notes"
8. The fact that the presence of a single forged note in a bundle of hundred rupee notes cannot be easily detected is also found from the evidence of PW4 who was the investigating officer. PW4 in his cross-examination also states as follows:-
"It is not possible for me to say if an ordinary person can detect the seized forged note as it varies from man to man".
9. Taking note of the evidence of PWs as noticed above Ld. Amicus Curiae submits that the appellant used to usually deposit the currency notes in the Bank on behalf of his firm Hari Shankar Prasad Harak Chand Prasad. This fact is borne out from the evidence of PW1. Ld. Counsel argues that none of the PWs have indicated any mens rea on the part of the appellant to the effect that he had prior knowledge of the single fake currency note. On the contrary the PWs have testified to the effect that it is difficult to easily detect a single fake currency note unless the same is looked into carefully.
10. Ld. Counsel points out that when the note is mixed up with a bundle of other notes, as in the present case, it is difficult to detect the forgery. Such fact also emerges from the evidence of PW2. Therefore, in the facts of the present case when the appellant was a regular depositor of notes on behalf of his firm and in a situation where the bundle of notes were belonging to several different serial numbers stitched together, it is presumptive to hold against the appellant by imputing mens rea.
11. Ld. Amicus Curiae submits that the presence of mens rea is a vital component of the offence made out under Sections 489B and 489C IPC. He submits that the Ld. Sessions Court failed to put any questions to the PWs on the aspect of knowledge of the fake note. According to Ld. Counsel, the Ld. Sessions Court applied the presumption of knowledge and guilt to the appellant on the basis of the mere possession of the note in a bundle of notes.
12. Ld. Counsel also takes this Court to the statement of the appellant under Section 313 CrPC and argues that no specific question was asked to him with regard to the nature of the note.
13. In support of his arguments Ld. Amicus Curiae relies upon the judgement of the Hon''ble Apex Court in
14. Also drawing the attention of this Court to the judgement in
"8. A perusal of the provisions, extracted above, shows that mens rea of offences under Sections 498B and 489C is, "knowing or having reason to believe the currency-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 under Section 489B 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 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 under Section 4 of the Evidence Act. Further it is also not shown that any specific question with regard to the currency-noted being fake on counterfeit was put to the appellant in his examination under Section 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: M. Mammutti Vs. State of Karnataka]."
15. Ld. Counsel therefore submits that the order of conviction was erroneous.
16. Per contra, Sri Amarta Ghosh, Ld. State Counsel submits at the very outset that the sentence imposed against the present appellant is moderate and he has been on bail throughout. Ld. State Counsel further submits that the evidence of PWs show the following:-
(a) The identity of the accused is not in doubt;
(b) The seizure of the notes is not in doubt;
(c) The fact of identifying a forged note is part of a common course of human transaction; and
(d) No defence was taken by the appellant during trial that he had no mens rea with regard to the fake note.
17. Ld. State Counsel therefore argues that the scope of Sections 489B and 489C relate to the use of fake notes by the accused who has knowledge or the reason to believe that the note is fake. In the facts of this case, according to Sri Ghosh, knowledge shall be deemed of concealment of a single note in a bundle or notes to be fraudulently passed off as genuine.
18. By way of reply Ld. Amicus Curiae strongly argues that the prosecution must stand on its own feet. It is essential for the prosecution to prove mens rea in order to drive home the charge under Sections 489B and 489C IPC.
19. Having heard the parties and considering of the materials on record this Court finds that the appellant was regularly engaged in depositing currency notes at the Bank in question on behalf of the firm Hari Shankar Prasad Harak Chand Prasad. Therefore, on the particular date, i.e. 13th August, 1981 the appellant transacted his usual transaction at the teller of the Bank.
20. It can be gathered from the evidence of the PWs that sitting at the teller and possessing the necessary expertise to identify forged notes, even the officers of the Bank have admitted that it is not an easy job to find out a single fake note from a bundle of hundred rupee notes. PWs have agreed in their separate evidence that to presume knowledge in respect of a solitary note in a bundle of similar notes bearing assorted serial numbers does not lead to a presumption of guilt on the part of the carrier of the notes.
21. This Court is of the further opinion that the ratio of the decisions reported in
22. Accordingly, this Court is persuaded enough to set aside the impugned judgement and order of conviction dated 29th June, 1989 passed by the Ld. Sessions Court, Siliguri, in Sessions Case No. 40 of 1986. The appellant stands acquitted of the charge. He also stands discharged from his bail bond, if any.
23. CRA 261 of 1989 stands allowed.
24. Ld. Public Prosecutor is directed to regularise the appointment of the Ld. Amicus Curiae.
25. Let the Lower Court Records be sent down forthwith.
26. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.
