Judgment Kanwaljit Singh Ahluwalia, J. 1 By this common order, Criminal Appeal No. 443-SB of 1998 preferred by appellant Ram Kumar son of Jumman and No. 411-SB of 1998 preferred by appellants Balwinder Singh son of Surta Ram, Rulia Ram alias Balbir son of Mukhtiara Ram, shall be decided together. 2 Both the appeals assail the impugned judgment dated 5.5.1998 whereby the appellants were held guilty of offence under Section 420 IPC. Appellants Ram Kumar and Rulia Ram alias Balbir were also held guilty of offence under Sections 489-A, 489-B and 489-C IPC. They have also challenged the order of sentence dated 7.5.1998. 3 A chart drawn by the trial Court reflecting sentence awarded upon the accused is reproduced below :- S. No. Offence Sentence awarded I. Under Section All the three convicts are 420 IPC sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 500/- each and in default of payment of fine,, the defaulter will further undergo rigorous imprisonment for a period of 15 days. II. Under Section Convicts Ram Kumar and 489-A IPC Rulia Ram alias Balbir are sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 1000/-each and in default of payment of fine,; the defaulter will further undergo rigorous imprisonment for a period of 15 days. III. Under Section Convicts Ram Kumar and 489-BIPC Rulia Ram alias Balbir are sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 1000/-each and in default of payment of fine,, the defaulter will further undergo rigorous imprisonment for a period of 15 days. IV. Under Section Convicts Ram Kumar and 489-C IPC Rulia Ram alias Balbir are sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 500/- each and in default of payment of fine,, the defaulter will further undergo rigorous imprisonment for a period of _______________________15 days.__________________ All the sentences were ordered to run concurrently. 4 The FIR was lodged on the basis of statement Ex. PA made by Randhir Singh. In his statement, Randhir Singh stated that he was resident of village Sair and was doing agricultural work. They were four brothers and two sisters. 4 The FIR was lodged on the basis of statement Ex. PA made by Randhir Singh. In his statement, Randhir Singh stated that he was resident of village Sair and was doing agricultural work. They were four brothers and two sisters. The name of his eldest brother was Shamsher Singh and younger to him was his sister Kulwinder Kaur; The complainant was youngest amongst the family members. Three killas of land fell to the share of complainant. About one week before 12.7.1996, Balwinder Singh son of Surta Ram, who is a resident of his neighbouring village, met the complainant and told that he know two persons who double the currency notes. Balwinder Singh further told that in case complainant desire, he would introduce him to those persons. Balwinder Singh further told that earlier also two/three persons, through him, had got their currency notes doubled. Balwinder Singh further told that the currency notes shall carry the same numbers. The complainant stated that he was induced by Balwinder Singh as he was in the dire need of the money. He borrowed Rs. 10,000/- from his sister Kulwinder Kaur and met Balwinder Singh on 11.7.1996. On the same evening, Balwinder Singh introduced complainant to his real brother-in-law Rulia Ram alias Balbir Singh and Ram Kumar, accused at tea stall near railway crossing at old Bus Stand, Thanesar. At that time, Rulia Ram took out two currency notes of Rs. 50/- denomination from the pocket of shirt and Ram Kumar also took out two currency notes of Rs. 100/- denomination from the pocket of his pant. The currency notes shown to the complainant had same serial numbers. The accused told him that the complainant would have to pay half the amount, in advance, which he intended to get doubled and the balance would be given when the doubled amount was handed over. The complainant gave Rs. 5,000/- in the denomination of Rs. 100/- each to accused Rulia Ram. Rulia Ram passed on this amount to Ram Kumar and told the complainant to approach them on the next day. On the next day i.e. 12.7,1996, the complainant met Shamsher Singh son of Mange Ram and disclosed him the modus operandi of the accused. Shamsher Singh informed him that he had already lost Rs. 2,000/- and his amount has not been returned. The complainant and Shamsher Singh planned to get the accused arrested. On the next day i.e. 12.7,1996, the complainant met Shamsher Singh son of Mange Ram and disclosed him the modus operandi of the accused. Shamsher Singh informed him that he had already lost Rs. 2,000/- and his amount has not been returned. The complainant and Shamsher Singh planned to get the accused arrested. They were going to lodge the report when Jahangir Singh, Assistant Sub Inspector, met them. A grievance was made in the statement lodged to Jahangir Singh, Assistant Sub Inspector, that the accused had defrauded the complainant of Rs. 5,000/-. On the basis of statement Ex. PA, FIR Ex. PJ was registered. 5 After the registration of FIR, Randhir Singh handed over the remaining amount of Rs. 5,000/-. A memo was prepared. A raiding party was organized and Randhir Singh was asked to hand over the amount to the accused. A memo Ex. PB was prepared which was attested by Shamsher Singh and Ram Kumar, Head Constable. Accused Ram Kumar was arrested on 12.7.1996 by Jahangir Singh, Assistant Sub Inspector, who at that time was accompanied by Ram Kumar, Head Constable. From his personal search two currency notes of Rs. 100/- denomination each were recovered. Both the currency notes were numbered OBR- 164324. From accused Rulia Ram, two currency notes of Rs. 50/- denomination were recovered. They also had a similar serial number i.e. 9GK 064258. The amount of Rs. 5,000/-, handed over to Randhir Singh, was also recovered from Balwinder Singh. A memo regarding possession of currency notes Ex. PC was prepared. On 11.7.1996, out of Rs. 5,000/-, Rs. 4,300/-were recovered from Ram Kumar accused. Thus, the prosecution case can be summed up as under :- (a) Complainant Randhir Singh was induced by Balwinder Singh, on 11.7.1996, to pay and part Rs. 5,000/- on the inducement that the amount would be doubled. Randhir Singh had to pay Rs. 5,000/- more. Remaining Rs. 5,000/- were handed over to Balwinder Singh, in the presence of police party. (b) Two currency notes of Rs. 100/- denomination bearing same serial numbers were recovered from Ram Kumar accused the time of his arrest and two currency notes of Rs. 50/- each having same serial number were recovered from Rulia Ram accused. (c) Out of amount of Rs. 5,000/-, which was handed over by the complainant to the accused at the time of his arrest on 12.7.1996, Rs. 50/- each having same serial number were recovered from Rulia Ram accused. (c) Out of amount of Rs. 5,000/-, which was handed over by the complainant to the accused at the time of his arrest on 12.7.1996, Rs. 4,300/- were recovered from Ram Kumar, accused. Thus, accused Ram Kumar was found in possession of two currency notes of Rs. 100/-each which were having the same serial numbers. (d) Accused Rulia Ram was found in possession of two currency notes of Rs. 50/- denomination bearing the same serial numbers. 6 After the investigation was concluded, a report under Section 173 Cr.P.C. was submitted. 7 All the three appellants were charged for Offence under Sections 420 IPC for having cheated Randhir Singh. The second charge formulated against appellants Rulia Ram alias Balbir and Ram Kumar read as under :- "Secondly, you Rulia alias Balbir and Ram Kumar on 11.7.1996 or piror to it counterfeited two currency notes of Rs. 50/-of same numbers i.e. 9GK 064258 and two notes of Rs. 100/- of same numbers i.e. OBR 164324, respectively, and thereby committed an offence punishable under Section 489-A of the Indian Penal Code and which is within the cognizance of this Court". 8 The third charge stated that the accused had agreed to sell forged currency notes to Randhir Singh and had committed an offence punishable under Section 489-B IPC. The fourth charge stated that the appellants Rulia Ram alias Balbir and Ram Kumar were found in possession of currency notes knowing the same to be forged and intended to use the same as genuine one and, therefore, they had also committed an offence punishable under Section 489-C IPC. The appellants pleaded not guilty and claimed trial. 9 Randhir Singh, complainant, appeared as PW.l. He has not supported the prosecution case. He has resiled from his previous statement Ex. PA and was declared hostile. According to this witness, there was some dispute pending between him and Balwinder Singh. A verbal exchange took place between him and Balwinder Singh. The accused in the Court standing along with Balwinder Singh started hurling abuses and reprimanded him for demanding the money. On that, police arrived at and took complainant Randhir Singh, accused Balwinder Singh and Rulia Ram to Police Station. This witness was allowed to go from the Police Station after he had signed blank papers. The accused in the Court standing along with Balwinder Singh started hurling abuses and reprimanded him for demanding the money. On that, police arrived at and took complainant Randhir Singh, accused Balwinder Singh and Rulia Ram to Police Station. This witness was allowed to go from the Police Station after he had signed blank papers. The Public Prosecutor cross-examined this witness and confronted him with his previous statement Ex. PA. The witness had not stated anything in favour of the prosecution. 10 Ram Kumar, Head Constable, appeared as PW.2. He stated that on 12.7.1996, he was posted in the Police Post Krishna Gate, Kurukshetra. He along with other police officials and Jahangir Singh, Assistant Sub Inspector, was present in front of old Bus Stand. At that time PWs Randhir Singh and Shamsher Singh had met the Assistant Sub Inspector and stated that they had been cheated. In his presence, statement of PW. 1 Randhir Singh was recorded and was sent to the Police Station for registration of the case. Randhir Singh was asked to hand over 50 currency notes of Rs. 100/- denomination to accused Ram Kumar, Balwinder and Rulia Ram who were to be available at Railway Phatak. He accompanied Randhir Singh who gave Rs. 5,000/- to Balwinder Singh, present in the Court. Randhir Singh told the accused that he had given Rs. 10,000/- and he should be handed over Rs. 20,000/- whereupon accused Ram Kumar told that they would give money on the next day as the money was not available with them. PW.2 Ram Kumar, Head Constable, acted as a shadow witness. He gave the signal and the Assistant Sub Inspector reached the spot. He effected recovery of two currency notes of Rs. 100/- denomination from Ram Kumar accused and two currency notes of the denomination of Rs. 50/- each from Rulia Ram accused. The currency notes of Rs. 100/-and Rs. 50/- were having the same serial numbers. On 13.7.1996, accused Ram Kumar suffered a disclosure statement Ex. PE that he had kept concealed Rs. 2,000/- taken from Shamsher Singh in his house along with a pen. On 14.7.1996, he got the amount recovered from iron almirah. The amount was handed over to the Assistant Sub Inspector in the presence of Roshan Lal, Sarpanch. 11 PW.3 Dharam Pal, Head Constable and P. 4 Chander Pal, Constable, tendered into evidence their affidavits Ex. 2,000/- taken from Shamsher Singh in his house along with a pen. On 14.7.1996, he got the amount recovered from iron almirah. The amount was handed over to the Assistant Sub Inspector in the presence of Roshan Lal, Sarpanch. 11 PW.3 Dharam Pal, Head Constable and P. 4 Chander Pal, Constable, tendered into evidence their affidavits Ex. PG and Ex- PH, respectively, to prove link evidence. 12 Shamsher Singh and Roshan Lal were given up by the prosecution as won over. Jahangir Singh, Assistant Sub Inspector, appeared as PW.5. Thereafter, the prosecution closed its evidence. 13 The statements of accused were recorded under Section 313 Cr.P.C. All the incriminating evidence was put to them. They denied the same and pleaded false implication. 14 In the present case, Randhir Singh, complainant, appeared as PW. 1 and had not supported the prosecution case. Other two witnesses namely Shamsher Singh and Roshan Lal were given up as won over. The entire prosecution case rests upon the testimony of Ram Kumar, Head Constable, PW.2 and Jahangir Singh, Assistant Sub Inspector, PW.5. Therefore, the charge that Balwinder Singh had been given Rs. 5,000/- on 11.7.1996, out of which Rs. 4,300/- were recovered and another Rs. 5,000/- were recovered on 12.7.1996 to get the amount doubled has not been proved. Randhir Singh PW.l has stated that regarding the amount, he was having a dispute with accused Balwinder Singh. He was grappling with Balwinder Singh when the police party arrested him and took the amount into possession. Regarding the charge that two currency notes of Rs. 100/- denomination having the same serial numbers Ex. P2 and Ex. P3 were recovered from accused Ram Kumar and two currency notes of Rs. 50/-each Ex. P4 and Ex. P5 were recovered from the possession of accused Rulia Ram. 15 The Chief Chemist, Government of India, Bank Note Press, Dewas, Madhya Pradesh, has submitted his report Ex. PM regarding the currency notes, which reads as under :- "The referred notes at A Rs. 50/- deno. (2 notes) at BRs.100/- deno. 92 notes) and one Ball pen of Red Ink were received in sealed condition by hand through Shri Chandrapali PC No: 311, P.S. Thanesar and are being sent herewith in sealed condition by regd. & insured post. The referred notes at A Rs. 50/- deno. (2 Nos.) are genuine notes, but the note at Sr. (2 notes) at BRs.100/- deno. 92 notes) and one Ball pen of Red Ink were received in sealed condition by hand through Shri Chandrapali PC No: 311, P.S. Thanesar and are being sent herewith in sealed condition by regd. & insured post. The referred notes at A Rs. 50/- deno. (2 Nos.) are genuine notes, but the note at Sr. No. 2, there is forgery of last digit of the genuine note bearing No. 9 GK 064253 has been altered to read as 9 GK 064258. The referred note at BRs. 100/-deno. (2 notes) are genuine note, but the note at Sr. No. 2, there is a forgery of last digit of the genuine note, bearing No. O BR 164321 has been altered to read as O BR 164324. The Red Ink of the fine tipped pilot Hi Tec point Ball pen submitted has been found to have been used in this forgery". 16 A perusal of the report reveals that the currency notes recovered were genuine. However, their serial number was altered by the red ink of Pilot Hi-Tec Point 0.5 Ball Pen. Whether alteration of a currency note by means of Pen or Ball Pen will make the currency note counterfeit is a question which this Court has to answer ? Section 28 IPC defines counterfeit, which reads as under:- "28. Counterfeit A person is said to "counterfeit" who causes one thing to resemble another thing, intending by means of that resemblance to practice deception, or knowing it to be likely that deception will thereby be practiced". 17 By using the Pen, the accused intended that two currency notes should be of same number so that deception could be practiced and the person is able to part the money on lure that the money will be doubled. PW.1 Randhir Singh has not supported the prosecution story to this effect. Shamsher Singh and Roshan Lal were given up as won over. The question which now arises for consideration of the Court is, "Whether, if by means of Pen, serial number of currency note is altered, offence will fall under Sections 489-A, 489-B and 489-C IPC ?" If currency note is tampered with the ink, it would not resemble with the other currency note. Therefore, the currency note cannot be considered as a counterfeit note. At the most, it will be the currency note which has been tampered with. Therefore, the currency note cannot be considered as a counterfeit note. At the most, it will be the currency note which has been tampered with. It has nowhere come in the evidence that the accused had intended to use currency notes as genuine. Hence, both the appeals are accepted. The conviction and sentence awarded to the appellants are set aside. They are acquitted of the charges.