Judgment :- 1. These two criminal Appeals are filed under Section 374(2) of the Code of Criminal 2. Procedure against the Judgment dated 25/8/2009 and made in S.C.No. 246 of 2008, on the file of the learned VI Additional District and Sessions Judge, Chennai, convicting the Appellants/Accused under sections 489-B and 489-C read with 34 of I.P.C. and sentencing each to suffer rigorous imprisonment of five years for each charge and the sentences were also directed to run concurrently. 2. The Appellant in Crl. A. No. 649 of 2009 is the First Accused, whereas the Appellants in Crl. A. No. 537 of 2009 are the Accused Nos. 2 and 3 respectively and therefore, these two Appeals are clubbed together heard and disposed of in this Common Judgment. 3. That on 2.5.2008, P.W.10 – the Inspector of Police attached to Counterfeit Currency Wing CBCID, Chennai had laid a final report against the Appellant/Accused before the learned XIII Metropolitan Magistrate alleging that they were, knowingly and for the purpose of circulation, found in possession of 333 numbers of counterfeit currency notes in Rs. 500/- denomination and thereby they had committed the offences punishable under Sections 498-B and C read with 34 of I.P.C. 4. The learned XIII Metropolitan Magistrate had taken the final report on his file under P.R.C. 89 of 2008. After taking cognizance the offences, he had furnished the copies of the final report to the Appellants as required under Section 207, Cr.P.C. and thereafter he had committed the case to the Court of Sessions for trial under Section 209(a), Cr.P.C. as the offences under Sections 489-B and C I.P.C are exclusively triable by the Court of Sessions. 5. The learned VI Additional District and Sessions Judge on hearing both sides, had framed necessary charges against the Appellants/Accused under Sections 489-B and C r/w 34, I.P.C. 6. When the ingredients of the charges were explained and questioned the Appellants/Accused 1 to 3 had pleaded innocent and claimed to be tried. The Appellants/Accused, therefore, were put on trial. 7. The prosecution, in order to establish its case, had examined as nearly as ten witnesses and during the course of their examination Ex.P.1 to P11 were marked. 8. The gravamen of the prosecution case this: That on 2.2.2008, at about 07.00 p.m., when PW1- Mr. The Appellants/Accused, therefore, were put on trial. 7. The prosecution, in order to establish its case, had examined as nearly as ten witnesses and during the course of their examination Ex.P.1 to P11 were marked. 8. The gravamen of the prosecution case this: That on 2.2.2008, at about 07.00 p.m., when PW1- Mr. Karuppan, Sub-Inspector of Police, attached to D3 Ice-House Police Station along with PW3 Head-Constable 9896 Kaliaperumal, Grade-I Police 1106 Pandian and one Constable 15501 Ramalingam was on patrolling duty at the junction point of Besant Road and Triplicane High Road, the Appellants/Accused were found standing near a shop. A black bag was found hanging on the neck of the first Appellant/Accused and the Second Appellant was found in possession of a gunni bag and third one was found in possession of a black bag. 9. The First Appellant/Accused had taken out a five hundred rupee currency note from his bag and purchased articles from the shop. Again, he had taken out another five hundred rupee currency note from his bag and purchased soap from the next shop. On suspicion, they were surrounded and caught hold by P.W.1 with the assistance of his police party. When the black bag, which was found in the possession of First Appellant/Accused, was opened P.W.1 had found three bundles of notes in the denomination of five hundred rupees. Since the language which was spoken by the Accused was not known to P.W.1 he had called P.W.2 Babu, who knew Hindi, for his assistance. While so P.W.4- Nagavel also came there and joined with them. 10. On interrogation, the three Accused had disclosed that they were belonging West Bengal and the First Accused had disclosed his name as Imravul Shaik, the other Accused had disclosed his name as Hujdul Shaik and the third Accused had disclosed his name as Najwal Khan. Thereafter, they were brought to D3 Ice-House Police Station along with the witnesses and P.W.1 had lodged a Special Report under Ex.P1 before P.W.9 – Inspector of Police. Based on Ex.P.1, P.W.9 had registered a case in Ice-House Police Station Crime No. 125 of 2008 under Section 489-B and 489-C r/w 120 I.P.C. and taken up the case for investigation. The printed First Information Report was marked as Ex. P7. 11. On interrogation, all the three Accused had come forward voluntarily and given their respective confessional statements. Based on Ex.P.1, P.W.9 had registered a case in Ice-House Police Station Crime No. 125 of 2008 under Section 489-B and 489-C r/w 120 I.P.C. and taken up the case for investigation. The printed First Information Report was marked as Ex. P7. 11. On interrogation, all the three Accused had come forward voluntarily and given their respective confessional statements. Since they had spoken in Hindi, P.W.2-Babu and P.W.40 Nagavel had translated into Tamil, which was reduced in writing by P.W.9. Then, P.W.9 along with the Accused and witnesses had been to Rehman Readymade Shop bearing door no. 24 located at Bharathi Road. He had also recovered a 500 rupee fake currency note bearing No. 6BL880529 under a seizure Mahazar – Ex.P3 in the presence of P.W.2 and P.W.4 from P.W.6 – Abdul Khader who is the owner of the shop. 12. Then, P.W.9 had recovered another five hundred rupee fake currency note bearing No. 6BL 880533 from PW5 – Abdul Hasan Sadali, who is the owner of Rasi Readymade Shop bearing door no. 42,under a Seizure Mahazar – Ex.P2 in the presence of the witnesses. Then, P.W.9 had arrested the Accused persons and seized 331 fake five hundred rupees currency notes under a seizure Mahazar Ex.P4. besides this, P.W.9 had also recovered eight numbers of hundred rupee notes, six numbers of fifty rupee notes and ten numbers of ten rupee notes from the possession of the Accused persons. Thereafter, all the material objects were sent to Court through Form – 95. He had also sent a requisition under Ex.P8 to the learned XIII Metropolitan Magistrate requesting to sent the seized five hundred rupee notes 333 in numbers to the Forensic Sciences Department to find out the genuineness of the same. 13. On the basis of the requisition, the learned XIII Metropolitan Magistrate had sent a letter along with the seized 333 five hundred rupee notes to the director Forensic Science Department under Ex.P5 – Covering Letter. P.W.8 – Scientific Assistants grade II, in pursuant to the request made by the learned XIII Metropolitan Magistrate had examined all the 333 numbers of counterfeit notes and issued a report under Ex.P6, in which it was opined that the items 1 to 333 were counterfeit five hundred rupees currency notes. P.W.8 – Scientific Assistants grade II, in pursuant to the request made by the learned XIII Metropolitan Magistrate had examined all the 333 numbers of counterfeit notes and issued a report under Ex.P6, in which it was opined that the items 1 to 333 were counterfeit five hundred rupees currency notes. P.W.9 had also examined the witnesses and recorded their statements and thereafter he had sent a letter to the Commissioner of the Police so as to transfer the investigation of the case to the Counterfeit Currency Wing CBCID Police Department. On the basis of the order of the Director General of Police, Tamil Nadu, under Ex.P10 of the case in Crime No. 125 of 2008 under Section 489-B and 489-C r/w 120-B of I.P.C. was transferred to Counterfeit Currency Wing CBCID Police Department, Chennai for further investigation. 14. In pursuant to Ex.P.10, P.W.10-Inspector of Police attached to CBCID Police Department, Chennai had taken up the case for further investigation on 20.2.2008. after completion of the investigation, he had laid a final report under Section 489-B and 489-C r/w Section 34 of I.P.C. he had also submitted a requisition to the learned XIII Metropolitan Magistrate under Ex.P11 requesting him for further investigation under Section 173(8) of Cr.P.C. With the evidence of P.W.10, the prosecution has closed its side. 15. When the Accused were examined under Section 313, Cr.P.C. after explaining the incriminating circumstances arising out the testimonies of the prosecution Witnesses, while denying their testimonies, all the Accused had categorically replied that the bag was found in the train and that the case was foisted against them. Neither oral nor any documentary evidence was adduced on behalf of the Accused. 16. The learned VI Additional District and Sessions Judge on appraising the evidences both oral and documentary and on considering other related facts and circumstances had found the Accused 1 to 3 guilty under Section 489-B and 489-C r/w 34 I.P.C. convicted thereunder and sentenced as aforestated. 17. 16. The learned VI Additional District and Sessions Judge on appraising the evidences both oral and documentary and on considering other related facts and circumstances had found the Accused 1 to 3 guilty under Section 489-B and 489-C r/w 34 I.P.C. convicted thereunder and sentenced as aforestated. 17. It is significant to note here that Section 489-B I.P.C. contemplates that “whoever sells to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency note or bank-note, 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”. 18. Section 489-C I.P.C. contemplates that “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”. 19. On coming to the instant case on hand, the Accused 1 to 3 were facing charges both under Sections 489-B and 489-C, I.P.C. for which they were tried and ultimately they were found guilty and convicted there under. In so far as the penal provision under Section 489-B is concerned if a person is found guilty, the sentence of imprisonment imposing o fine are must. It can be passed under Section 489-B that the word ‘shall’ is employed for the imposition of fine, whereas if a person is found guilty and convicted under Section 489-C he shall be punished either with imprisonment or with fine or with both. Option is given under Section 489-C to the Trial Judge to sentence the person, who is found guilty, either to punish him with imprisonment or with fine or with both. 20. Option is given under Section 489-C to the Trial Judge to sentence the person, who is found guilty, either to punish him with imprisonment or with fine or with both. 20. In the instant case on hand, the learned Trial Judges, having found the Accused persons guilty under Section 489-B of I.P.C. had sentenced them only to suffer rigorous imprisonment of five years and he had failed to impose fine which a mandatory one under this Section and thereby he had committed a serious error which is a gross violation of the mandate of Section 489-B of I.P.C. 21. Mr. T.K. Sambath, the learned Counsel appearing for the Appellants/Accused in both the Appeals, while advancing his argument has submitted that though there were contradictions in the evidences of P.W.5 and P.W.6, who were the shop keepers and the other witnesses, the learned Trial Judge had failed to look into the manifest discrepancy. He has also added that the number if bundles alleged to have been seized did not match with the number of bundles sent to analysis and further more the Trial Judge had also failed to appreciate the absence of explanation from the side of the Respondent – Police with regard to the balance amount after the alleged purchase. He has also added that the Respondent/Prosecuting Agency had miserably failed to prove fact that the Accused were found in possession of the alleged counterfeit notes and they were having knowledge that the said notes were counterfeit and intended in use them as genuine currency. 22. In order to constitute an offence, Sections 489-B and 489-C the following ingredients are sin qua non: Essential ingredients – An offence under Section 489-B has following essentials: i. Selling, buying or receiving from any person; or otherwise trafficking in or using as genuine; ii. Any forged or counterfeit currency note or bank note; iii. Knowing (or having reason to believe) that such note was forged or counterfeit; An offence under Section 489-C has following essentials: i. Possession by Accused of any forged or counterfeit Currency Notes or Bank note; ii. Knowledge (or reason to believe) to the Accused that it was forged or counterfeit; and iii. Intention of the Accused to use the same as genuine or that it may be used as genuine. 23. Knowledge (or reason to believe) to the Accused that it was forged or counterfeit; and iii. Intention of the Accused to use the same as genuine or that it may be used as genuine. 23. The learned Counsel has also submitted that the prosecuting agency had miserably failed to establish the facts as to how three bundles, which were alleged to have been seized from the possession of the Appellants had increased to four bundles as found out from the Chemical Analysis Report and therefore, the finding of four bundles as per Chemical Analysis Report had raised strong suspicion that the case projected by the prosecution was not true and hence, the Accused were liable to be acquitted. 24. Further, the learned Counsel has also submitted that the prosecuting had failed to produce bills for the so called purchase from shop keepers viz. PW5 and PW6. He would submit further that the prosecution agency had miserably failed to bring home the guilt of Accused beyond all reasonable doubts. 25. On the other hand, the learned Additional Public Prosecutor has contended that the Accused persons were having knowledge that all the 333 notes in rupees 500 denomination were counterfeit and they were intended to use them as genuine notes and that was why they had exchanged two 500 rupee notes with P.W.5 and P.W.6 and purchased clothes. He has also pointed that all the three Accused had categorically admitted when they were examined under Section 313, Cr.P.C. that the bag was found in the train. He has also added that when they had admitted their conscious possession of the counterfeit notes, the question proof that too beyond all reasonable doubt would not arise. 26. In so far as the instant case on hand is concerned, it is obvious that the Appellants/Accused are hailing from West Bengal. Admittedly, they do not know the regional language of Tamil that is why P.W.1 had deposed that he sought the assistance of P.W.2 and P.W.4 so as to translate their language into Tamil. Here, the presence of P.W.2 and P.W.4 in the place of occurrence is suspected. 27. As per the evidence of PW1, Sub-Inspector of Police attached to D3, ice-House Police Station, he along with PW3-Head Constable, one Grade-I Police Constable Pandian and the other Constable Ramalingam was on patrolling duty at the junction point of Triplicane High Road and Besant Road. Here, the presence of P.W.2 and P.W.4 in the place of occurrence is suspected. 27. As per the evidence of PW1, Sub-Inspector of Police attached to D3, ice-House Police Station, he along with PW3-Head Constable, one Grade-I Police Constable Pandian and the other Constable Ramalingam was on patrolling duty at the junction point of Triplicane High Road and Besant Road. While so, they found the Accused persons standing near a shop under suspicious circumstance. On seeing them, as per the evidence of PW3 – Head Constable they had stationed their vehicle on the side of the road and kept strict surveillance on the movements of the Accused. 28. While so, one of the Accused persons had taken a five hundred rupee note from his black bag, which was found hanging from his neck and purchased articles from a shop. After purchasing articles, the same person had been to another shop and given another five hundred five hundred rupee note and purchased articles. On suspicion P.W.1 and P.W.3 and other Police Constables went nearer and caught hold them. In this connection, the learned Counsel appearing for the Accused would submit that the prosecuting agency had failed to specify the distance between the shop from where the Appellants had purchased articles and the place where P.W.1 and P.W.3 had parked their vehicle and watched the movements of the Appellants. 29. The learned Counsel has also adverted to that if the Accused were really found in possession of three bundles of counterfeit notes, on seeing the Police vehicle from where their movements were watched they would have fled away from the scene of occurrence. But, this lacuna had not been practically analysed by the Trial Court. 30. The learned Counsel has also argued that even at the distance where the Police vehicle was parked the exact denomination of notes could not have been identified by the P.W.1 as well as P.W.3, when the First Accused had purchased articles. 31. It is obvious to note here that in order to establish the fact that the Accused were found exchanging the counterfeit notes with the shopkeepers P.W.5 and P.W.6, the receipt for the purchase of articles are very much essential but they were admittedly not recovered and produced. 31. It is obvious to note here that in order to establish the fact that the Accused were found exchanging the counterfeit notes with the shopkeepers P.W.5 and P.W.6, the receipt for the purchase of articles are very much essential but they were admittedly not recovered and produced. As rightly submitted by the learned counsel for the Accused, according to P.Ws.1 to 4 and P.W.9, three bundles consisting totally 331 notes in five hundred denomination were recovered from the possession of the Accused. Apart from this, two five hundred notes were recovered from P.W.5 and P.W.6 (shopkeepers). In total, 333 notes in five hundred rupees denomination were sent to chemical analysis. In his chief-examination, PW1 has stated that from the First Appellant/First Accused three bundles consisting 331 notes in five hundred rupees denomination were seized. When he was in the box, the bundles were placed before him for his identification while so, he has stated that at the time of seizure there were three bundles, but, at the time of giving evidence there were four bundles. He has also ratified in his evidence that he had seized only three and not four bundles. This answer has been specifically noted when his evidence was recorded in chief. When he was confronted with the bundles in his cross-examination he has admitted that in his Special Report, under Ex.P1, he did not state that 331 notes were recovered from the possession of the First Accused. He has also stated that be did not state in his report as to how many notes were found in three bundles, which were said to have been recovered from the possession of the First Accused. It is pertinent to note here that P.W.1 was not able to explain while he was in the box as to how the bundles could have been multiplied into 4 from 3. 32. He has also admitted in his cross-examination that at the time of apprehension of the Accused persons in front of the shop when they were purchasing articles, no statements were recorded from the shopkeepers viz. P.Ws.5 and 6. It is also admitted by him that on a glance at the notes it could both be stated as to whether they were genuine or fake currencies. P.W.2-Babu had stated in his cross-examination that he did not see when the Appellants were purchasing articles from the shop. P.Ws.5 and 6. It is also admitted by him that on a glance at the notes it could both be stated as to whether they were genuine or fake currencies. P.W.2-Babu had stated in his cross-examination that he did not see when the Appellants were purchasing articles from the shop. He would state further that for the recovery of black bag from the possession of the First Accused a mahazar was prepared in the place of occurrence itself and he has also signed in the mahazar. When the bag was recovered it was about 7.00 to 7.30 p.m. he would state further that no Currency Note in the denomination of hundred, Rs. 50/- or Rs. 10/- were recovered from the possession of the Appellants. He also admitted that no receipts were recovered from the shops. According to P.W.2, when the Accused were surrounded and apprehended by P.W.1 and P.W.3 and other Police Constables, he had signed and again his signature was obtained in the Police station thereafter. 33. Further, he would state that he did not know as to whether the signatures of the shopkeepers were obtained for having sold the articles. He also state in his cross-examination that the number of the notes were not written in his presence. P.W.3 Head Constable T. Kaliaperumal had admitted in his cross-examination that they did not compare the currency, which was presented to the shop owner with the currency, which were found in possession of the First Accused. 34. It is pertinent to note here that in his chief-examination at the First instance P.W.1 says that the First Accused had taken hundred rupee note from his bag and presented to the shop keeper and purchased articles. In this connection, he would state that on seeing this, he developed suspicion on his conduct. At the second instance, he would state that the same person had taken another note from his bag and presented to other shop owner and purchased soap. 35. It is apparent from the evidence of P.W.5 and P.W.6 that they are ready made shop owners. They are not selling other articles like soap excepting the garments. It is also the case of the prosecution that the five hundred rupee currency note bearing serial No. 6BL880533 was seized from one Gulam Mildhusha Abdul Hasan Sadali, who is the owner of Rasi Readymade Shop as evident from Ex.P2. They are not selling other articles like soap excepting the garments. It is also the case of the prosecution that the five hundred rupee currency note bearing serial No. 6BL880533 was seized from one Gulam Mildhusha Abdul Hasan Sadali, who is the owner of Rasi Readymade Shop as evident from Ex.P2. When this being the case how the prosecution could examine Mr. Abdul Hasan as P.W.5? the prosecuting Agency has not explained as to how P.W.5 is having nexus or is having competency to depose about the recovery of currency note as specified under Ex.P2. as seen from Exs.P2 and P3 no soap was purchased. But, only Jatti and Towels were purchased. But, entirely contrary to their own evidence P.W.1 has deposed even in his chief-examination that the First Appellant had purchased soap after paying a sum of Rs. 500/- from his bag. 36. The evidence of P.W.5 and Ex.P6 have to be militated against other witnesses viz. P.Ws.1 to 4. This court has carefully gone through the testimonials of Prosecution Witnesses and ultimately a lot of discrepancies and infirmities are found in their evidences, would tend to create a gloomy shadow over the story of prosecution. In efficiency and in sufficiency are reflected in the investigation conducted by P.W.9 and P.W.10. but, it does not mean that the Accused persons would not have committed the offence. 37. This court had also gone through the judgment of the Trial Court it is to be placed on record that the Trial Court has completely ignored the cross-examination of the Prosecution Witnesses. The accused persons are helpless and now they are put behind the bar. However, they are also human beings and they are entitled to avail their basic fundamental rights conferred on them under Article 21 of the Constitution of India. They are having right of defence, but the answers of the witnesses, which are recorded during the course of their cross-examination have not been appreciated and balanced with their chief-examination. 38. It also appear that the Trial Court has completely accepted the case of the prosecution and ignored the case of defence and that is why ended in wrong finding without even following the mandate of the penal provision under Section 489-B, I.P.C as discussed above. 39. 38. It also appear that the Trial Court has completely accepted the case of the prosecution and ignored the case of defence and that is why ended in wrong finding without even following the mandate of the penal provision under Section 489-B, I.P.C as discussed above. 39. It is pertinent to note here that all the three Accused have categorically stated in their reply while they were examined under Section 313, Cr. P.C. that the bag was found in the train. Their answer cannot be just brushed aside or ignored. Their conscious reply would go to establish the fact that they were in possession of counterfeit currency notes, as evident from P.W.8-Scientific Assistant and Ex.P6- Analysis Report. On careful appreciation of the testimonies of Prosecution Witnesses and on considering the submissions made on behalf of both side this Court is of considered view that the Appellants/Accused 1 to 3 are not found guilty under Sections 489-B of I.P.C instead, they are found guilty under Section 489-C of I.P.C. 40. It is informed to this Court that from the date of arrest and till the conclusion of trial the Appellants/Accused have been languishing in prison. It is also informed that after their conviction their sentence has also not been suspended during the pendency of these Appeals. Hence, it is, thus, made clear that till the disposal of these Appeals the Appellants/Accused are serving the sentence. It is pertinent to note here that the Appellants/Accused are found not guilty under Section 489-B of I.P.C. hence, the finding, conviction and sentence imposed on them by the Trial Court under Section 489-B of I.P.C. may be set aside. 41. It is also significant to note here that this Court has found them guilty under Section 489-C of I.P.C. As contemplated under Section 489-C of I.P.C. the Appellants/Accused shall be punished with imprisonment of either discreption for a term which may extend to seven years or with both. It is obvious to note here that hitherto the Appellants/Accused have been serving the sentence both in pre-trial and post-trial. It is obvious to note here that hitherto the Appellants/Accused have been serving the sentence both in pre-trial and post-trial. Hence, this court consider that to meet the ends of justice that the period of incarceration of the Appellants/Accused 1 to 3 so far undergone by them would be sufficient to punish them under Section 489-C of I.P.C. as discussed infra, imposition of fine is not a must under Section 489-C of I.P.C. Since the Appellants/Accused have served the sentence they may be set at liberty. 42. In the result, these Criminal Appeals are partly allowed. The judgment of the Trial Court dated 25/8/2009 and made in S.C. No.246 of 2008 is modified as detailed below: i. The Appellants/Accused are not found guilty under Section 489-B of I.P.C. Hence, the conviction and sentence imposed on them under Section 489-B of I.P.C. are set aside and they are also acquitted thereunder accordingly. ii. They are found guilty under Section 489-C of I.P.C. They are convicted thereunder and sentenced to suffer rigorous imprisonment for a period of four years and three months, which they have substantially served. Therefore, they are set at liberty. The bail bonds, if any, executed by and on behalf of themselves shall stands be cancelled. Consequently, connected Miscellaneous Petition is closed.