JUDGMENT Padma Khastgir, J. Jiban Sasmal preferred this appeal being aggrieved by a conviction under s.489B of the Indian Penal Code to suffer rigorous Imprisonment for five years and also by a conviction under s.489B read with s.109 of the Indian Penal Code to suffer rigorous imprisonment for five years. The learned Sessions Judge, Midnapore, however directed that both the sentences would run concurrently. 2. This appeal was admitted by Mr. Justice Monoj Kumar Mukherjee and Mr. Justice Amal Kumar Chatterjee on 10th January, 1986 but the prayer for bail was refused by their Lordships. 3. Along with one Rampada Samanta, Jiban Sasmal, the appellant herein, was put on trial before the learned Sessions Judge, Midnapore, on charges under s.489C and s.489B read with s 109 of the Indian Penal Code on the allegation that on 5th August, 1983, at Argoraha, P.S. Ghatal, the appellant had in his possession five counterfeit currency notes of ten rupee denomination knowing the same to be counterfeit and Intending to use the same as genuine and on the same day at about the same time and same place the appellant Jiban Sasmal abetted Rampada Samanta to use as genuine two counterfeit currency notes of ten rupee denomination knowing the same to be counterfeit. The learned Sessions Judges, Midnapore, by his judgment and order dated 20th December, 1985 although was pleased to acquit the other accused, Rampada Samanta of the charges framed against him under ss. 489C and 489B of the Indian Penal Code but held the appellant, Jiban Sasmal, guilty of both the changes. 4. The short point that needs consideration in this appeal is whether in view of the acquittal of the other co-accused of the charges levelled against him the conviction against the present appellant be sustained. The appellant was charged under s.489C of the IPC on the allegation that on 5th August, 1983 corresponding to 19th Sravan, 1930 B.S. at Argoraha, P.S. Ghatal he had in his possession five counterfeit currency notes of ten rupee denomination bearing number A/11/270156, A/11/2701588, P/32/931877, P/32/931877 and P/32/931800 knowing the same to be counterfeit and intending to use the same as genuine. He was further charged under s.489B/109 of the Indian Penal Code on the allegation that the appellant bad on the same day and at the same place and at the same time abetted Rampada Samanta to use as genuine two counterfeit currency notes of ten rupee denomination bearing number A/11/270150 and A/11/270155 knowing the same to be counterfeit which offence was committed in consequence of his abetment. 5. The evidence led on behalf of the prosecution was that on that date, the accused Rampada Samanta at about 8 PM at night called at the tea shop situate al Argoraha bus stand within PS Ghatal belonging to one Ratan Khan (PW.1) when Rampada Samanta purchased cocked meat film his shop worth Rs. 8/. and made over a ten rupee note to him. On seeing the note, PW.1 got suspicious As a result, he showed the currency note to Ajit Naga (PW5) who also opined that the note was not genuine. Then P.W.1 asked Rampada Samanta to say as to wherefrom be got the same whereupon Rampada replied that he had received the two notes from the appellant, Jiban Sasmal, who at that relevant point of time was sitting in the shop of P.W.4, Panchanan Panja. At the instance of the appellant, Rampada Samanta went to purchase meat with the help of those two currency notes. Rampada also produced the ether notes which were similarly found by others as not genuine P.W.5, Ajit Naga, P.W.2, Dignendu Bera and P.W.3, Niranjan Pal, including P.W.1, Ratan Khan, all accompanied Rampada to the shop of Panchanan Panja (P.W.4) where Rampada identified the accused appellant, Jiban Sasmal. Being pressed and confronted, the accused Jiban Sasmal produced five other ten rupee note sin the presence of some other witnesses which was found to be counterfeit by a mere look on those notes As a result, both the accused together with the counterfeit notes were token to the police station and handed over to the officer concerned, Swapan Das (P.W.7) Upon the written complaint of P.W.1, the proceeding was started. The counterfeit notes seized in the presence of the seizure witnesses were ultimately sent to the Forensic science Laboratory in a sealed cover which was received by P.W.6, Subimal Ghosh. The counterfeit notes seized in the presence of the seizure witnesses were ultimately sent to the Forensic science Laboratory in a sealed cover which was received by P.W.6, Subimal Ghosh. After the forensic examination, P.W.6, found those notes to be counterfeit P.W.8, Nirmal Kumar Sinha also opined that all the notes seized and sent for forensic examination were forged and the forgery was rather crude in nature and, as such, it could be easily detected with naked eyes that those notes were not genuine. After examining all the witnesses, the learned Judge Came to the conclusion that the accused, Rampada, Samanta was not guilty of the offence charged against him but convicted the appellant. Jiban Sasmal, in the manner indicated earlier. 6. Section 489B of the Indian Penal Code provides as follows :- "489B -Whoever sells to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency not to bank note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with imprisonment fur life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine" 7. Under the circumstances, the evidence led for and on behalf of the prosecution does not lend support to the case Inasmuch as none of the witnesses examined on behalf of the prosecution, so far as the present appellant is concerned, had not Indicated in any manner that the present appellant had either sold bought or received from any person or other wise trafficed in or used as genuine, any forged counterfeit currency notes or bank notes, knowing or having reason to believe the same as forged or counterfeit Under the circumstances, In the absence of any evidence led on behalf of the prosecution to Indicate that the present appellant had in any manner used the same counterfeit currency notes the conviction of the appellant under s. 489B or the Indian Penal Code cannot, therefore be sustained. 8. Section 489C of the Indian Penal Code provides as follows : "489C. 8. Section 489C of the Indian Penal Code provides as follows : "489C. Whoever has in his possession any forged or counterfeit currency note, or bank notes 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 even years, or with fine or with both." 9. Although it is in evidence led on behalf of the prosecution that five currency note were recovered from the possession of the present appellant but mere possession of those counter-fell currency notes will not be sufficient to uphold the change framed against the appellant under s.489C and, as such, the conviction thereunder cannot be sustained inasmuch as from a plain in reading of the said section, It is clear that mere possession of any forged or counterfeit currency notes or bank notes, knowing or having reason to believe the same to be so will not be sufficient inasmuch as the Section itself provides that possession coupled with intention to use the same as genuine is required to be satisfied before a conviction can be upheld under s. 489C. In the charge framed against the appellant under the said section, it has been stated that under s.489C, he had in his possession five currency notes of ten rupee denomination, full particulars whereof had been given, together with the charge that he intended to use the same as genuine, whereas from an analysis of the evidence led for and on behalf of the prosecution, it is clear that it does not support such charge inasmuch as all the five counterfeit currency notes were no doubt found in his possession but there he no evidence that he intended to me the same as genuine. 10. So far as the charge framed against the appellant under s.109 of the Indian Penal Code is concerned, the said section provides in the manner following "109 Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for punishment of such abetment, be punished with the punishment provided for the offence. Explanation-An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitute the abetment" 11. Under the circumstance, the offence under s.109 of the IPC is only committed when a person abets any offence and if the act abetted is committed in consequence of the abetment, then Dilly be would be punished with the punishment provided for the offence. 12. In the explanation itself it is stated that an act or offence is said to be committed in consequence of an abetment when it is committed in consequence of all instigation or in pursuance of the conspiracy or with the aid which constitute the abetment. Under the circumstances, when admittedly the other accused, Rampada Samanta, had been acquitted of the charges on the ground that he has not committed the offence charged against him, the question arises whether the person who has shelled in the commission of such crime can be held guilty under s.109 of the IPC in the case of Faguna Kanta Nuth v. The State of Assam, reported In AIR 1959 SC 673 , it was held as follows: "In the case of abetment by aid a person can be said to abet by aiding only when by the Commission of an act he intends to facilitate the commission of the offence and does facilitate the commission thereof. Therefore where a person is charged with abetment by aid of an offence under s.161 and the person charged with the offence is acquitted on the ground that he had not committed the offence no question of intentionally aiding by any act or omission the commission of that offence arises Therefore, whether the acquittal is right or wrong the conviction of the abettor also Cannot be allowed to stand in the circumstances" 13 Similarly, In the case of Jamuna Singh v. State of Bihar, reported in AIR 1967 SC 553 , It was held as follows : "It cannot be held in law that a person cannot ever be convicted of abetting a certain offence when the person alleged to have committed that offence in consequence of the abetment has been acquitted. The question of the abettor's guilt depends on the nature of the act abetted and the manner, in which the abetment was made. The question of the abettor's guilt depends on the nature of the act abetted and the manner, in which the abetment was made. The offence of abetment is complete when the alleged abettor has instigated another or engaged with another in a conspiracy to commit the offence. It is not necessary for the offence of abetment that the act abetted must be committed It is only in the case of a person abetting an offence by intentionally aiding another to commit that offence that the charge of abetment against him would be expected to fall when the person alleged to have committed the offence is acquitted of that offence." 14. The case of Faguna Kanta Nath v. State of Assam (supra) was discussed in the aforementioned case where at paragraph 7, the learned Judge of the Supreme Court clearly brought cut the distinction in the case of persons instigating another or engaging in conspiracy with another on the one hand and that of the person aiding the person is committing such offence. In the case three co-accused had been acquitted. The learned Judges of the Supreme Court were of the view that the appellant Jamuna Singh could not have instigated in the commission of a crime in which other co accused had been acquitted. 15. In the facts and circumstances of the present case, it appears that the conviction of the appellant, Jiban Sasmal, cannot be upheld both under ss.489B and 489C of the Indian Penal Code. It is true that under s.116 of the Indian Penal Code abetment of offence is punishable with imprisonment even if the offence is not committed But, in view of the fact that the appellant, Jiban Sasmal, has been charged under s.109 of the Indian Penal Code and not under s.116 of the said Code, he cannot be held guilty in the present case. In the judgment in the case of Madan Raj Bhandari v. State of Rajasthan, reported in AIR 1970 SC 436 , It was held that the accused was charged under s.314 read with s.109, Indian Penal Code and he was notified that he would only be tried for an offence of having abetted and throughout the trial the accused was asked to defend himself against the charge on which he was tried The conviction for abetting was held not to be proper on the ground that the accused was likely to have been prejudiced by such charge. In the facts and circumstances of this case, when the accused-appellant was only found in possession of the five counterfeit currency notes but no evidence having been led on behalf of the prosecution that he was intending to use the same as genuine this Court is not inclined to convict the appellant under S.116, Indian Penal Code. 16. Under the circumstances, all the charges framed against the appellant, Jiban Sasmal, having failed, this appeal is allowed. In view of the fact that the accused appellants is in jail, he be released forthwith. Amil Kr. Chatterjee, J. - I agree. Appeal allowed