JUDGMENT P.K. Musahary, J. 1. None appears for the Appellant. Heard Mr. B.B. Gogoi learned Addl. P.P., Assam. 2. Being highly aggrieved by and dissatisfied with the judgment dated 7.12.2002 passed by the learned Sessions Judge Sivasagar in Sessions Case No. 10(S-C)/2001 convicting the Appellant under Section 489C, IPC and sentencing him to under go rigorous imprisonment for 2 years and to pay a fine of Rs. 5,000 in default to under go further rigorous imprisonment for 3 months, the Appellant has filed this appeal. 3. The prosecution story in brief is that three accused persons, namely, Bhupen Borgohain, Biren Borgohain and Kiron Borgohain, as usual, came to the weekly market at Sapekhati on 18.10.1999. Bhupen Borgohain and Biren Borgohain took tea in the cafeteria of one Romen Gogoi and tendered one currency of 500 denomination towards payment of Rs. 15 only. As the restaurant owner did not have adequate money to return the balance, Bhupen Borgohain sent his friend Biren Borgohain to bring notes of small denomination. Biren approached the accused Kiron Borgohain who was selling pork in the market and brought five numbers of one hundred notes. The accused Bhupen then tendered one such currency note to said Romen Gogoi and left the restaurant after taking the balance amount of Rs. 85. From the restaurant accused Bhupen went to the grocery shop of witness Shukhlal Mahatoo and purchased certain grocery items and also tendered an one hundred rupee note. The shop-keeper declined to accept the said note suspecting it to be a forged one. Then the said accused again came to the restaurant of Romen and gave him four numbers of one-hundred rupee notes and five numbers of fifty-rupee notes and asked him to bring back his five-hundred rupee note which was exchanged earlier from the accused Kiron Borgohain. When witness Romen went to exchange the money with Kiron, a police constable, who was also purchasing pork from Kiron, saw the currency notes, which appeared to be counterfeit. Then the police constable came to the restaurant and interrogated accused Bhupen Borgohain. Thereafter, accused Bhupen Borgohain was brought to Sapekhati police station and on further interrogation, the said accused revealed that he got the fake currency from the accused Kiron Borgohain in exchanging one five-hundred note. Then the police constable came to the restaurant and interrogated accused Bhupen Borgohain. Thereafter, accused Bhupen Borgohain was brought to Sapekhati police station and on further interrogation, the said accused revealed that he got the fake currency from the accused Kiron Borgohain in exchanging one five-hundred note. Thereafter, the officer-in-charge of Sapekhati police station S.I. G.K. Bhuyan himself lodged an FIR to the effect that four numbers of one-hundred rupee currency notes, suspected to be counterfeit, were found from the possession of accused Bhupen Borgohain and accused Biren Borgohain and Kiron Borgohain were also involved in the transaction of fake currency notes. This FIR was registered as Sapekhati PS Case No. 57/99 under Section 489C of the Indian Penal Code. Ext. 3 is the said FIR. The Officer-in-charge himself took up investigation of the case. First of all he seized the currency notes vide Ext. 1. On the next day all the 3 accused persons were produced in the court and also made a prayer for police custody. Accordingly, the accused persons were taken on police custody for 5 days. The accused persons were again produced in the court on 22.10.1999 with a prayer to record their confessional statements. Only accused Bhupen Borgohain made his confessional statement. The other two accused persons declined to make any such indictable statement. During investigation, the I.O. also sent the seized currency notes to the Forensic Science Laboratory, Guwahati on 13.11.1999. The report was received on 26.11.1999 confirming that the seized notes were forged bank notes. Ext. 4 is the FSL report. In this way, the investigation was completed. Finally, SI Arfan Ali Ahmed submitted charge sheet on 21.7.2000 on the transfer of his predecessor. 4. The offence being exclusively triable by the court of Sessions, the case was committed to the Court of Sessions Judge, Sivasagar and the formal charge under Section 489C, IPC was framed, which was read over to the accused persons, who pleaded not guilty and claimed to be tried. 5. The prosecution examined, in all, six witnesses including the I.O. and the SDJM, Charaideo, Sonari, who recorded the confessional statement of the accused. The learned trial court recorded the statement of the accused persons under Section 313, Code of Criminal Procedure after closure of evidence of the prosecution witnesses. 6. 5. The prosecution examined, in all, six witnesses including the I.O. and the SDJM, Charaideo, Sonari, who recorded the confessional statement of the accused. The learned trial court recorded the statement of the accused persons under Section 313, Code of Criminal Procedure after closure of evidence of the prosecution witnesses. 6. In their statement, accused Bhupen Boragohain and Biren Boragohain admitted the fact of exchanging the five hundred rupee currency note from the market for the purpose of making payment in the restaurant. Accused Bhupen Borgohain even admitted the fact of giving a confessional statement and also seizure of four numbers of fake currency notes from his possession. Accused Bhupen Borgohain also admitted the fact that he brought the said fake currency notes from the accused Kiron Borgohain in exchange the one five hundred notes. Accused Kiron Borgohain however, denied the fact of exchange of five hundred rupees note. 7. The learned trial court, on appreciation of the evidence and materials on records and after hearing the learned Counsel for the parties convicted the Appellant Kiron Borgohain as stated above. 8. It may be noted that no illegality, irregularity or infirmity has been pointed out by the defence in making the confessional statement by the accused Bhupen and recording of the same by the learned SDJM Charaideo, Sonari, PW6, who deposed in details how the fake currency notes were found as per statement of accused Bhupen. As per the confessional statement of accused Bhupen, the fake currency notes were obtained from present Appellant Kiron Borgohain. 9. PW 4 was the OC of Sapekhati police station who was on patrolling duty in the said weekly market and who received the information from PW1 Sri Ramen Gogoi, owner of the tea stall at Sapekhati market who came to know about tendering of fake currency note. This PW4 brought the accused persons to the police station along with the currency notes in question, which were seized and sent for testing by the forensic laboratory. 10. The three accused persons were produced before learned SDJM, Charaideo for recording their statements. Out of this three accused, persons, accused Bhupen gave the confessional statement as stated above, while other two accused persons declined to make any confessional statement. PW4 himself took the charge of investigation: He received the FSL report which confirmed that the currency notes in question are fake ones. Out of this three accused, persons, accused Bhupen gave the confessional statement as stated above, while other two accused persons declined to make any confessional statement. PW4 himself took the charge of investigation: He received the FSL report which confirmed that the currency notes in question are fake ones. According to him the PW 4 examined one Naren Saikia (PW3) who stated that on 18.10.1999 at about 2.30 p.m. four numbers of 100 rupee denominations suspected to be forged/fake were seized from the possession of accused Bhupen Borgohain who was selling pork in front of his shop and the said currency notes were seized from Bhupen Borgohain in his presence. 11. His evidence has been corroborated by PW3 Sri Naren Saikia. He was declared hostile, but in his cross-examination he clearly stated that the police seized four numbers of hundred fake currency notes from the possession of accused Bhupen Borgohain in his presence and he signed the seizure list Ext.1 as a witness. The evidence of P Ws 3 and 4 clearly establishes that the fake currency notes were seized from accused Bhupen Borhohain. Accused Bhupen Borgohain in his confessional statement, Ext. 5, stated that on 18.10.1999, he met his co-villager Biren in the said market and asked him to get some small notes in exchange of Rs. 500 note. As requested by him Biren brought 5 one hundred rupee notes from accused Kiron Borgohain. The clear evidence is that the fake currency notes were brought by accused Biren from accused Appellant Kiron. The learned trial court, while examining him under Section 313, Code of Criminal Procedure so as to give him an opportunity to explain the position as to how he happened to give the said fake currency notes to accused Biren, he categorically denied that accused Bhupen or Biren came to him for the purpose of exchanging five hundred note with hundred notes and he gave the said fake hundred rupee notes. In reply to a question of the learned trial court as to whether he would like to say anything more, the accused Appellant stated as follows: - 2. Q. Would you like to say anything more? Ans.: It was a market day at Sapekhati, I was selling pork in the market. I had already collected a huge sum of Rs. 7,000 by selling pork. At about 12.30 p.m. one police officer, namely, Mr. Q. Would you like to say anything more? Ans.: It was a market day at Sapekhati, I was selling pork in the market. I had already collected a huge sum of Rs. 7,000 by selling pork. At about 12.30 p.m. one police officer, namely, Mr. Phukan also purchased pork from me. In presence of the police constable, witness Ramen Gogoi came and asked me to give him one five hundred rupee note in exchange of four Nos. one hundred rupee notes and two fifty rupee notes. Ramen was sent to me by the accused Bhupen. Police constable saw this transaction and he developed suspicion that one hundred rupee notes were fake. Thereafter, the notes were taken by the constable and he accompanied Ramen Gogoi for enquiry. Since the notes belongs to accused Bhupen Borgohain, the police constable interrogated me. Bhupen told the police constable that since he could not utilized the notes in the market he had sent Ramen to get one five hundred rupee note. In the meanwhile police officer from Sapekhati PS also came and interrogated me regarding the exchange of fake notes. Subsequently, I was called to the police station and I was detained and arrested. 12, It was admittedly a market day at Sapekhati and it is an admitted fact that the accused Appellant Kiron Borgohain was selling pork in Sapekhati market on 18.10.1999 and it was quite natural that he could collect some cash amounts from the sale of pork. His cash collection included different currencies/denominations received from various customers. While selling pork and receiving the price in cash it was not possible on his part to carefully examine or look at each and every currency note he received from different customers including those he received from accused Biren who was sent by accused Bhupen for exchange of smaller currency notes. Thus, it was quite natural that the Appellant, unmindfully, happened to give the aforesaid fake currency notes in question to accused Biren. It is thus, found that the accused Appellant was not in conscious position of such fake currency notes or he was knowingly in possession of the same with intention to use them as genuine. It may be appropriate to referrer to provision under Section 489C, IPC which reads as under: - 489C. It is thus, found that the accused Appellant was not in conscious position of such fake currency notes or he was knowingly in possession of the same with intention to use them as genuine. It may be appropriate to referrer to provision under Section 489C, IPC which reads as under: - 489C. 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. In the circumstance under which the accused Appellant supplied the aforesaid counterfeit currency notes, I am of the considered view that the ingredients of offence under Section 489C, are not found inasmuch as it has not been proved by the prosecution by adducing sufficient materials. It is not proved that the accused Appellant have been possessing the forged or counterfeit currency notes knowingly or having reason to believe the same to be forged or counterfeit with intention to use the same as genuine and he supplied the same to accused Biren and Bhupen. Further in my considered view there is no evidence to the fact that the Appellant was possessing the fake currency notes in question before hand with full knowledge about it and he handed over the same with ill motive to accused Biren who in his turn handed over to the accused Bhupen. There is also no evidence to the effect that the accused Appellant is connected with any racket or party circulating the forged or counterfeit currency notes. 13. The evidence of the prosecution witnesses could not remove the aforesaid doubts for coming to a conclusion that the prosecution has been able to prove the case against the present accused Appellant beyond reasonable doubt. I do not agree with the finding and conclusion arrived at by the learned trial court convicting and sentencing him as noted above and, therefore, I have no hesitation to differ from him and set aside the impugned conviction and sentence awarded against the Appellant. 14. I do not agree with the finding and conclusion arrived at by the learned trial court convicting and sentencing him as noted above and, therefore, I have no hesitation to differ from him and set aside the impugned conviction and sentence awarded against the Appellant. 14. Accordingly the impugned conviction and sentence is set aside and in the result the accused Appellant Sri Kiron Borgohain is acquitted. 15. The bail bond stands discharged. Sent back the records. Appeal allowed