JUDGMENT :- The convict (accused) in Sessions Trial No. 42 of 2009 on the file of the learned Ad-hoc Additional Sessions Judge, Yavatmal, who has been sentenced to undergo rigorous imprisonment (R.I.) for ten years with fine of Rs. 1,000/- in default to suffer further R.I. for six months in respect of Section 489-B of Indian Penal Code (for short, I.P.C.) and to undergo R.I. for seven years with fine of Rs.1,000/- in default to suffer further R.I. for six months for offence under Section 489-C of I.P.C., has filed this appeal against the judgment and order dated 17/8/2009. 2. The case of the prosecution, in short, is as follows : (i) On 4/2/2009, which was the day of weekly Bazar in village Dongarkharda, at about 5.00 p.m., the accused gave fake currency note of Rs.500/- to Shaikh Sadique Shaikh Ibrahim for getting change, knowing or having reason to believe that the said note of Rs.500/- was counterfeit note. (ii) On the same day, the accused was in possession of three such currency notes of Rs.500/- which he knew to be forged or counterfeit and he had intention to use them as genuine. 3. The prosecution examined altogether nine witnesses in support of its case. P.W.-1 Sk. Sadik Sk. Ibrahim, who lodged the report against the accused which is at Exh.17. P.W.-2 Jai Devidas Bawankar is one of the panch witnesses for the panchanama of personal search of the accused which panchanama is at Exh.20. P.W.-3 Ramesh Baburao Khekare and P.W.4 Bhaskar Marotrao Khekare are the panch witnesses for the panchanama of the spot of occurrence. They have not supported the case of the prosecution. P.W.-5 Vijay Madhukarrao Utale is a witness who was also given a fake note. P.W.-6 Govindrao Dnyaneshwar Kinake is another witness who was given a fake note of Rs.500/-. P.W.-7 Prashant Gunwantrao Rohane is a panch witness for two anchanamas which are at Exhs. 28 and 29. P.W.-8 Dhananjay Mahadeorao Sayare and P.W.-9 Maroti Gunaji Fulpagar are the Police Officers, who have conducted the investigation in the case. 4. After considering the evidence on record, the learned trial Judge found the accused guilty of the offence under Sections 489-B and 489-C of I.P.C. and sentenced him for the periods noted above. 5. Heard arguments. Learned Advocate Miss Rane argued on behalf of the accused, whereas learned A.P.P. Mr. Kothari argued on behalf of the State. 4. After considering the evidence on record, the learned trial Judge found the accused guilty of the offence under Sections 489-B and 489-C of I.P.C. and sentenced him for the periods noted above. 5. Heard arguments. Learned Advocate Miss Rane argued on behalf of the accused, whereas learned A.P.P. Mr. Kothari argued on behalf of the State. 6. Perused the entire record and proceedings. 7. P.W.-1 has deposed that on 4/ 2/2009 at about 5.00 p.m., which was a Bazar day, one unknown person came to him and gave him currency note of Rs.500/- for getting the change and he gave five currency notes of Rs.100/- each to that unknown person. P.W.-1 has stated that on 5/2/2009, he came to his shop at about 10.00 a.m. and saw the said currercy note of Rs.500/- bearing No.9AD 969988 and since he had come to know from the villagers that police had seized one fake currency note of Rs.500/- bearing No. 9AD 969989, he suspected and went to Kalamb police station and lodged the report which is at Exh. 17 and the police seized the said currency note. P.W.1 has stated that the accused is the said person who gave him the said fake note. 8. In his cross-examination, P.W.-1 has stated that there is heavy rush in village Dongarkharda on the day of Bazar and he does not know all his customers and he could not state as to which customer gave which note. He has stated that the police did not carry out test identification parade. 9. Since the accused was present in the police station when P.W.-1 lodged the report, it appears that he has identified the accused as a person who gave him the said note. 10. P.W-9 Maroti Fulpagar, the Investigating Officer, has stated that he took personal search of the accused in presence of two panch witnesses and found one currency note of Rs.500/- in the right pocket of his pant and one mobile set. P.W-9 seized both the articles under the panchanama Exh.20. 11. P.W.-2 is one of the panch witnesses for the search panchanama Exh.20 and he has confirmed that the P.S.O. took search of the person who was caught and brought by them at the police station and one note of Rs.500/- and one Nokia mobile having sim-card were found in the pocket of his pant and they were seized. 12. 11. P.W.-2 is one of the panch witnesses for the search panchanama Exh.20 and he has confirmed that the P.S.O. took search of the person who was caught and brought by them at the police station and one note of Rs.500/- and one Nokia mobile having sim-card were found in the pocket of his pant and they were seized. 12. The said panchanama (Exh.20) specifically mention that minute search of the accused was taken, but nothing else was found with him. 13. According to P.W-1, he had given five notes of Rs.100/- to the unknown person, who gave him a note of Rs.500/-. However, P.W.-9 did not find the said five currency notes of Rs.100/- in possession of the accused. If the accused was really the person to whom P.W-1 had given five notes of Rs.100/- each, then P. W-9 had to find those notes with the accused. Therefore, there is doubt whether accused is the person who gave the note bearing No. 9AD 969988 to P.W-1. 14. P.W-2 has deposed that one unknown person had given a fake note of Rs.500/- to Govindrao and Govindrao had shown to him the said note and told him that it is a fake note. According to P.W.-2; Govindrao returned the said note to the said unknown person and thereafter he, Govindrao and Vinod caught that person and brought him to the police chowki of Dongarkharda . Thus, P.W-2 had not seen the said unknown person giving the note of Rs.500/- to Govindrao. 15. P.W.-6 Govindrao has deposed that on 4/2/2009 one person came to his shop and purchased ready-made dress of kid and paid to him a note of Rs.500/-. He has further stated that he had with him the numbers of fake note of Rs.500/- and he tarried the number of the currency note given to him by the said person with the numbers of fake note and he found that the said note given by the said person having number 9.AD 969989, was a fake note and he, therefore, returned the said note to the said person and thereafter Vijay, Vinod and himself caught that person and took him to the police chowki. 16. However, P.W.-6 could not definitely identify the accused person as the same person who gave him that note. 16. However, P.W.-6 could not definitely identify the accused person as the same person who gave him that note. P.W-6 has stated that he feels that accused was the same person who had given to him the said note. 17. P.W-6 has not stated that after returning back the note of Rs. 500/- to the said person, he took back the ready-made dress which was purchased by the said person. However during the personal search of the accused person, no ready-made dress of kid was found with him. There is therefore doubt whether the accused had given the said note of Rs, 500/- to P.W-6. 18. P.W-5 Vijay Utale has medical shop at Dongarkharda and he has deposed that on 4/2/2009 there was sale of Rs.5,000/- at his shop and on 6/2/2009 he read in the daily newspaper "Lokmat' that one person is caught by police and fake currency notes of Rs.500/were distributed at Dongarkharda. P.W.-5 has further stated that the series 9AD' was also mentioned in the said newspaper. He has further deposed that he tallied the currency notes which were with him and found one note of Rs.500/- of the said series "9AD" bearing No. 969993. P.W.-5 has stated that he came to Kalamb police station and produced the said note before the police and police seized the same. 19. Here also during the personal search of the accused no medical items were found in possession of the accused. As far as P.W.-5 is concerned, he is also not sure as to who had given the said note ofRs.500/- to him. The accused was shown to P.W.-5 in the Court and P.W.-5 stated that he thinks that the accused might have come to his shop on 4/2/2009. In his cross-examination, P.W.-5 has stated that he cannot tell as to who had handed over the said particular note of Rs.500/- to him. 20. P.W.-7 Prashant Rohane is panch witness in whose presence P.W.-5 had produced the note before the police and the same was attached. 21. Admittedly, no test identification parade was held. 22. First of all, therefore, there is reasonable doubt about the identification of the accused person as the same person who had given the fake notes to the said witnesses. 23. There is no doubt about the fact that three notes of Rs.500/- bearing Nos. 21. Admittedly, no test identification parade was held. 22. First of all, therefore, there is reasonable doubt about the identification of the accused person as the same person who had given the fake notes to the said witnesses. 23. There is no doubt about the fact that three notes of Rs.500/- bearing Nos. (i) 9AD 969988, (ii) 9AD 969993; and (iii) 9AD 969989 are counterfeit notes and not genuine. This is proved by the expert opinion on forged notes which is at Exh.35. 24. However, there is doubt about the person who was in possession of the said fake notes. 25. Sections 489-8 & 489-C of I.P.C. read as under : “489-B. Using as genuine, forged or counterfeit currency-notes or banknotes. - Whoever sens to, or buys, or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or banknote, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 489-C. Possession of forged or counterfeit currency-notes or banknotes. - Whoever has in his possession any forged or counterfeit currency-note or banknote, 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." 26. A perusal of the above provisions shows that mens rea of offence under Sections 489-B and 489-C is "knowing or having reason to believe that the currency notes or banknotes are forged or counterfeit". Without the aforementioned mens rea, selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit currency notes or banknotes, is not enough to constitute offence under Section 489-B of I.P.C. So also possessing or even intending to use any forged or counterfeit currency notes or banknotes is not sufficient to make out the case under Section 489-C of I.P.C. in the absence of the mens rea, noted above. Ld. Ld. Advocate Ms Rane has relied upon “Umashankar Vs Stat.e Of Chhattisgarh” [ (2001) 9 S.C.C. 642 ] : [2001 ALL MR (Cri) 2398 (S,C.)], wherein the Apex Court has held that mens rea ('knowing or having reason to believe the currency notes to be forged or counterfeit') is essential to constitute the offence under sections 489-8 and 489-C of I.P.C. 27. In his cross-examination, P.W.-9, the investigating officer, has stated that he cannot tell from the face of the currency notes that they are fake or genuine notes. He has further stated that at the time of the alleged incident, he was unable to tell whether those notes were fake 'or genuine. 28. The evidence on record further reveals that after P.W.-6 returned the note to the accused and when P.W.-6 and others caght him, he had not made any attempt to run away. 29. In paragraph 35 of the impugned judgment, the learned trial Judge has observed that the evidence on record thus establishes the charges for the offence punishable under Sections 489-8 and 489-C of I.P.C. for using the counterfeit notes as genuine when it was within the knowledge of the accused that those notes were counterfeit notes and he was having the possession of them knowing that those were counterfeit notes and he intended to use them as a genuine. The trial Judge has further observed that intention in the mind of the accused as above, has been proved by the prosecution. 30. However, nowhere in the entire judgment, it is mentioned as to how and by which evidence, the prosecution has proved the said knowledge or intention of the accused. It is seen that no specific question with regard to the knowledge of the accused that the currency notes are fake or counterfeit was put to the accused in his examination under Section 313 of Criminal Procedure Code. In my view, therefore, no material is brought on record by the prosecution to show that the accused had requisite mens rea. The learned trial Judge appears to have presumed such a mens rea when such presumption was not available. 31. In view of the discussion supra, it cannot be said that the prosecution has proved the guilt of the accused beyond reasonable doubt. 32. The impugned judgment and order is, therefore, not in accordance with the settled principles of law. The learned trial Judge appears to have presumed such a mens rea when such presumption was not available. 31. In view of the discussion supra, it cannot be said that the prosecution has proved the guilt of the accused beyond reasonable doubt. 32. The impugned judgment and order is, therefore, not in accordance with the settled principles of law. Hence, interference with the same is warranted. 33. In the result, (a) The appeal is allowed. (b) The impugned judgment and order is quashed and set aside. (c) The accused is acquitted of the offence punishable under Sections 389-B and 389-C of LP.C. (d) The accused shall be released forthwith, if not required in any other case. (e) The three counterfeit currency notes shall be destroyed, whereas Nokia mobile seized from the possession of the accused, shall be returned back to him, after the appeal period is over. Appeal allowed.