JUDGMENT AND ORDER : 1. Heard Mr. A.I. Uddain, learned counsel appearing for the appellant and Mr. B. Sarma, learned Addl. Public Prosecutor, Assam. 2. For an offence U/S 489(C) IPC the appellant has been sentenced to rigorous imprisonment for five years with fine. The prosecution case is that on 9.2.2009 an Army Officer on a confidential information that the appellant was dealing with forged currency note, a search operation was conducted in the house of the appellant along with police personnel and during the search at about 23 hours 36 number of fake currency was recovered from the house of the appellant and thereafter the appellant was apprehended and was handed over to the police. The FIR was lodged accordingly which was registered as Dholai P.S. Case No. 50/2009 U/S 489(B)IPC. 3. On completion of the investigation the I.O. submitted charge-sheet against the appellant U/S 489(B) IPC. The learned lower Court after furnishing all the necessary copies U/S 173 (2) CrPC committed the case to the Court of Sessions for favour of trial. The appellant stood the trial and pleaded not guilty to the charge U/S 489(B) IPC which was framed and explained to him. The prosecution examined seven witnesses to substantiate the charge including the official FSL expert. Plea of defence is that no search operation was made in his house and nothing was recovered from his possession and case was falsely filed against him. The statement of appellant was recorded U/S 313 CrPC wherein he has stated that at the material time he was driver of Tata Sumo and while returning from Lakhipur on the way he found one Army Vehicle coming from backside. As the road was very narrow so he signalled the Army Vehicle not to over take his vehicle and thereafter Army Vehicle followed him and caused damaged to his vehicle with a lathi and subsequently Army personnel came to his house and apprehended him and handed over to police with a false ezahar. 4. The learned Sessions Judge come to conclusion that notes in question were forged and that it was recovered from the possession of the appellant and he has full knowledge that the currencies were fake in nature and the accused failed to adduce evidence how he got the same. 4. The learned Sessions Judge come to conclusion that notes in question were forged and that it was recovered from the possession of the appellant and he has full knowledge that the currencies were fake in nature and the accused failed to adduce evidence how he got the same. Accordingly, the appellant was held guilty for the offence U/S 489(C) and sentenced him to rigorous imprisonment for five years under said section of law, along with fine of Rs.3000/- and in default to suffer rigorous imprisonment for the period of two months. Hence the appeal before this Court. 5. Considered the submission of the learned counsel Mr. A.I. Uddin for the appellant who has vehemently argued that the evidence on record is not at all convincing to prove the guilt of the accused as there is lack of corroboration among the witnesses as regards search and seizure. The independent witness has totally belied the case of prosecution and the appellant deserves acquittal on benefit of doubt. Reliance has been placed upon the decision of 1961 (2) Crl.L.J. 536 Ragho Saran Rao vs. State; AIR 1979 SC 1705 M. Mammutti vs. State of Karnataka, wherein it has been held that to prove the offence U/S 489(C) IPC prosecution has to prove that the appellant had knowledge or reason to believe that notes were counterfeit. Mere possession of forged note is not an offence under the Indian Panel Code. When offence U/S 489(C) IPC, it is essential to establish that the accused intended to use the forged notes as genuine or that might be used as forged. In absence of evidence on the aforesaid scores the offence U/S 489(C) held to be, not proved. 6. On the next delay in filing the FIR is also stated to be doubtful in the given circumstances of the case. On the other hand, learned Addl. P.P. Mr. B. Sarma has contended that learned trial Court has rightly convicted the appellant and no interference is called for. 7. I have given due consideration to the rival contentions of both the parties. 8. On the other hand, learned Addl. P.P. Mr. B. Sarma has contended that learned trial Court has rightly convicted the appellant and no interference is called for. 7. I have given due consideration to the rival contentions of both the parties. 8. In order to bring a case within the purview of Section 489(C) IPC it is necessary to prove that the accused was in possession of the forged note and further it should be established (a) that at the time of his possession he knew that the note was forged or had reason to believe to be so and (b) that he intended to use the same as genuine or that they might be used as a genuine. The onus lies on the prosecution to prove the above circumstances which led clearly, irresistibly to the inference that accused had the intention to foist the note to the public. Such intention could be proved only by collateral circumstances that he was in possession of such and similar notes in large number that his possession or any other purpose is inexplicable. 9. So far as the seized notes being forged are concerned, the matter has been proved beyond the realm of controversy by the evidence of expert PW 6, Dr. T. Das, Deputy Director FSL who has examined the notes on 4.6.09 and has submitted the report that the notes were forged. Her evidence is sufficient to establish the notes in question were forged one. 10. The prosecution examined certain witnesses that the seized notes have been recovered from the possession of the appellant in the course of search operation. The witnesses who have deposed about the matter are PW 3 Bhim Singh, an Army personnel and PW 4 Hussiar Singh, an Army Personnel (PW 4 filed the FIR). The other witnesses PW 1 Phoni Bhusan Deb and PW 2 Somi Begum Choudhury are the independent witness, PW 5 and PW 7 are the police personnel, who completed the investigation and sent the said notes for FSL examination and finally submitted the Charge-sheet against the accused appellant. 11. The other witnesses PW 1 Phoni Bhusan Deb and PW 2 Somi Begum Choudhury are the independent witness, PW 5 and PW 7 are the police personnel, who completed the investigation and sent the said notes for FSL examination and finally submitted the Charge-sheet against the accused appellant. 11. I have gone through the evidence of the witnesses carefully, the PW 3 in his evidence has stated that search operation was conducted by himself and PW 4 in presence of other police personnel Suman Ghosh and Police Constables (those police personnel were not examined) and it is stated by PW 3 that some foreign currency were recovered from the house of one culprit and the person was apprehended and handed over the police. Seizure Ext.1 was prepared by police and Ext 1(2) is his signature. However, he could not remember exact time of the alleged occurrence and the number of persons found inside the house. It is to be noted that PW3 has not identified the appellant in the dock and has simply referred as ‘one culprit’ which is perhaps not enough to implicate the appellant, and he also failed to state about how many persons were there in the house where the recovery was made. 12. On the next the evidence of PW4 who happens to accompany the PW3 at the time of search and seizure has deposed that at about 12 night when the house of one culprit was searched they recovered 20 number of 500 denomination currency which is suspected to be fake Indian currency and the name of culprit was perhaps Jhapur Hussain. Further it is stated that fakes currency notes were seized at the place of recovery vide Ext.1 (3) is his signature. The PW4 filed the FIR, Ext. 2. In cross-examination the PW4 stated that he cannot remember where the Ext.2 was prepared. He also cannot say about the topography of the place of search and the inmates of the house nor he can say from which place of the house the recovery was made. It is stated that his senior officer (PW 3) prepare the seizure memo and no villagers were present at the time of search and nobody was informed prior to the search. 13. It is stated that his senior officer (PW 3) prepare the seizure memo and no villagers were present at the time of search and nobody was informed prior to the search. 13. The evidence of PW 3 and PW 4 being the vital witness to the search and seizure is not at all corroborative with each other on vital aspect. As indicated above, according to PW3 seizure list was prepared by police but according to PW4 it was prepared by PW3, which obviously create doubt about the authenticity of the seizure list. That apart, none of these witnesses could clearly spelt out about the place of recovery specifically to indicate the exclusive and conscious possession of the accused person. The evidence led by them are vague and not at all convincing as regards the proper identification of the accused or about the recovery. In his evidence, PW 4 has stated about recovery of 20 number of notes whereas, as per his own FIR 36 number of notes was recovered which is self contradictory. Further, according to PW4 Indian currency notes was recovered whereas PW3 has stated about recovery of foreign currency notes. As per evidence of PW4 there was no other witness present at the time of seizure but PW1 who is a independent witness has stated that Police took his signature in Ext.1 (seizure list) but he did not see any recovery from the house of the accused nor police shown anything and his signature was taken in a blank paper. Similarly, the PW 2 (wife of accused/appellant) in her evidence has stated that Army personnel came to their house and apprehended her husband but nothing was recovered from him and army personnel did not entered into the house of the brother-in-law, although they reside together. Apparently, the evidence of PW2 and PW3 is also destructive of prosecution story that has been narrated by the PW3 and PW4. 14. The evidence of (two investigative officer) PW5 R.K. Sinha and PW 7 BP Singh only relates to next part of investigation regarding sending of seized articles to FSL and about finding of charge-sheet. The PW 7 in cross examination stated that he was entrusted to investigate the case subsequently and no police personnel was present at the time of search operation by Army. The PW 7 in cross examination stated that he was entrusted to investigate the case subsequently and no police personnel was present at the time of search operation by Army. The Army personnel prepared the seizure memo at the place of occurrence on 9.2.2009 at 23 hours which was handed over to him and he seized the seizure memo. There is no seizure memo prepared by Army on record. This part of evidence of PW7 again contradict the evidence of PW3 and PW4 that police person was present at the time of seizure, that seizure list was prepared by police. The more crucial aspect of the case that the actual seizure memo is not brought on record which was prepared by the Army personnel of PW3 and PW4. That being the position, the case of the prosecution is clouded by shadow of doubt about the authenticity of such search and seizure and in the given background the plea of the defence got strengthened that in fact no such recovery was made from the house of the appellant; there being blatant contradictory story narrated by these vital witnesses. 15. As has been discussed above the other essential ingredients of the offence under Section 489(C) IPC is not at all proved by prosecution at all. Further, delay in filing the in the present case obviously fatal in the given background, as according to the I.O. seizure was made on 9.2.2009 and the FIR was filed on 10.2.2009 without explaining the reasons for delay. The Army personnel did not inform the local police prior to making search and seizure nor procured any independent witness to support the above episode. 16. In the given circumstances and for the reasons discussed above, I am unable to sustain the conviction of the appellant, where the charge levelled against the appellant is not proved beyond all reasonable doubt. Accordingly, appeal is allowed. Conviction and sentence passed on the appellant is hereby set aside and appellant is acquitted from the charge framed against him. Return the LCR.