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2016 DIGILAW 1255 (ORI)

Atabul Sekh v. State of Orissa

2016-12-20

SATRUGHANA PUJAHARI

body2016
JUDGMENT S. PUJAHARI, J. - This appeal is directed against the judgment of conviction and order of sentence dated 21.07.2009 passed by the learned Adhoc Addl. Sessions Judge (F.T.C.), Baripada in Sessions Trial No.23/26 of 2008. By the impugned judgment, the learned trial Court held the appellants (hereinafter referred to as “the accused persons”) guilty of the charge under Sections 489-B, 489-C read with Section 34 of the Indian Penal Code, 1860 (for short “the IPC”) and sentenced each of them to undergo rigorous imprisonment for five years and to pay a fine of Rs.1000/-, in default, to undergo R.I. for a further period of three months on each count. 2. Prosecution placed a case before the trial Court to the effect that on 26.06.2007 at about 7 A.M. while the informant, namely, Baishnab Chandra Mohanty (P.W.2), the then Manager of Reliance Petrol Pump, Udala, was in the Counter of said Petrol Pump, the accused persons along with another came and one of them handed over one five hundred rupee currency note asking for lower denomination notes. However, the P.W.2 suspected the same to be forged currency note and when he appraised them of his opinion, all of them tried to escape, but the P.W.2 and others chased and apprehended them. The matter was thereafter reported to the police vide Ext.1. The police took up investigation of the case, seized the suspected G.C. notes and on completion of investigation, charge-sheet was submitted against the accused persons under the aforesaid Sections. Thereafter, the case of the accused persons was committed to the Court of Sessions for trial while the case against the absconded accused – Asen Sekh was split up. The accused persons pleaded not guilty to the charge. In the trial, as such, prosecution examined 7 witnesses and also relied upon documents vide Exts.1 to 7 in order to establish the charge. The accused persons took the plea of denial and false implication in their defence and examined two witnesses. The trial Court on conclusion of the trial discarding the defence plea that as the accused persons denied to construct the house of the informant, a false report was lodged against them, rendered the impugned judgment of conviction and order of sentence, as assailed here in this appeal. 3. The trial Court on conclusion of the trial discarding the defence plea that as the accused persons denied to construct the house of the informant, a false report was lodged against them, rendered the impugned judgment of conviction and order of sentence, as assailed here in this appeal. 3. The learned Amicus Curiae appearing for the accused persons submits that there being nothing on record indicating the fact that the accused persons handed over 500 rupee G.C. note to the P.W.2 knowing or having reason to believe the note to be forged or counterfeit and when there is nothing on record to hold that they possessed such G.C. note knowing or having reason to believe the same to be forged, particularly when they are construction worker, their conviction discarding the defence plea supported by the evidence, is against the weight of evidence and is, therefore, not sustainable either in law or in fact. 4. Assailing such contention, the learned Addl. Government Advocate for the State contends that the accused persons possessed of a forged G.C. note and when approached P.W.2 to exchange that note with G.C. notes of lower denomination, they had knowledge and had reason to believe the G.C. note to be forged, their conviction as such being based on evidence on record, needs no interference. 5. Before adverting to the contentions raised, it would be apposite to mention that ‘Knowledge’ or “reason to believe” are mens rea of the offence under Section 489-B of IPC. Similarly, in order to attract the mischief of Section 489-C of IPC, prosecution must establish that the accused persons must be in possession of a forged G.C. note. The possession of forged G.C. note must be “conscious possession” and not a passive possession having no reason or reason to believe the same to be forged. The onus lies on the prosecution to prove the circumstances which can clearly, indubitably and irresistibly lead to the inference that the accused persons had dishonest intention to foist the note with public at large. Knowing or reason to believe that it is to be forged, is the crux of the matter. Hence, mere possession even of a forged note without the knowledge that the same was forged or reason to believe the same to be forged will not attract the mischief of aforesaid Sections. 6. Knowing or reason to believe that it is to be forged, is the crux of the matter. Hence, mere possession even of a forged note without the knowledge that the same was forged or reason to believe the same to be forged will not attract the mischief of aforesaid Sections. 6. Keeping in mind the aforesaid, the contention raised vis-à-vis the evidence on record is required to be addressed. It appears from the evidence of P.W.2 that she could not identify the person who made over the suspected G.C. note amongst the accused persons. That leads to definite conclusion that P.W.2 was not aware as to who were those culprits and amongst them who handed over the suspected G.C. note to him. Even it is assumed that the suspected note was in possession of one of the accused persons who handed over that note to P.W.2 seeking notes of lower denominations, and save and except that evidence, nothing more being brought on record, the same itself is not sufficient to infer that the accused persons had knowledge or reason to believe that the aforesaid G.C. note was a forged one. Prosecution has failed to adduce any material on record as to who possessed that questioned note and who made over that note to P.W.2. This is a material question remained unanswered before the trial Court. When P.W.2 could not identify the persons to be the culprits and person who handed over the questioned G.C. note to him and when in cross-examination he stated that the person who handed over the G.C. note to him was not present in the dock, it is most unsafe to rely on such fragile evidence to hold all the accused persons guilty under Section 489-B and 489-C read with Section 34 of IPC. The gist of the offence charged being possession with knowledge or reason to believe the questioned G.C. note to be forged or counterfeit, and the evidence on record being not indicating the same, such evidence do not attract the mischief either of Section 489-B and 489-C of IPC. In absence of any clear, clinching and convincing evidence to inculpate the accused persons with regard to possession of a single G.C. note with the aforesaid knowledge or reason to believe, their conviction is not sustainable in law. 7. In absence of any clear, clinching and convincing evidence to inculpate the accused persons with regard to possession of a single G.C. note with the aforesaid knowledge or reason to believe, their conviction is not sustainable in law. 7. Therefore, the impugned judgment of conviction and order of sentence in the absence of any other evidence is unsustainable. Accordingly, this criminal appeal stands allowed. The impugned judgment of conviction and order of sentence is set-aside. Consequently, the accused persons are acquitted of the charge under Sections 489-B and 489-C read with Section 34 of IPC. Since Mr. Patro, the learned Amicus Curiae has assisted this Court effectively, the Orissa High Court Legal Services Committee is directed to pay an amount of Rs.3000/- (rupees three thousand) as remuneration to him forthwith. LCR received along with the copy of this judgment be returned forthwith. Appeal allowed.