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2018 DIGILAW 612 (GAU)

SABIN DEKA v. STATE OF ASSAM GHC

2018-04-09

MIR ALFAZ ALI

body2018
JUDGMENT : 1. Heard Mr. B Kalita, learned counsel for the appellant and Mr. D Das, learned Addl. PP, Assam. 2. This appeal is directed against the judgment and order dated 22.12.2017 passed by learned Sessions Judge, Nalbari in Sessions Case No.118/2010. By the said judgment, learned Sessions Judge convicted the accused/appellant under Section 489(B) IPC and sentenced him to undergo RI for 4 (four) years and to pay a fine of Rs.1,000/- with default stipulation. 3. As per the prosecution story, an FIR was lodged by one Nagen Basumatary alleging that he was the lessee of Nagrijuli market. On 08.07.2003, eight numbers of fake currency notes of Rs. 500 (five hundred) denomination were recovered from the accused/appellant Sabin Deka, while he was paying revenue for sale/purchase of cow. On the basis of the said FIR, police registered a case and after usual investigation, submitted charge-sheet against the present appellant as well as one Satish Biswas (since acquitted) under Section 489 (A) IPC read with Section 34 IPC. 4. On the basis of the said FIR, learned JMFC took cognizance and having found the offence, exclusively triable by the Court of Sessions, committed the case to the Court of Sessions and eventually the present appellant and the co-accused Satish Biswas stood trial for charge under Section 489 (B) IPC. 5. In the course of trial, the prosecution examined 5 (five) witnesses including the forensic expert, and on appreciation of evidence, learned trial Court acquitted the co-accused Satish Biswas. However, convicted the appellant under Section 489-B and awarded sentence as indicated above. 6. Aggrieved by the impugned judgment of conviction and sentence, the petitioner preferred the instant appeal. 7. The learned counsel for the appellant vehemently arguing for the acquittal of the appellant submits that the petitioner got the currency notes by selling his cattle and he had no knowledge that those currency notes were counterfeit and in absence of evidence, that the accused/appellant used the counterfeit currency, knowing or having reason to believe that the currency notes was counterfeit, the accused could not have been convicted under Section 489-B IPC. 8. Out of the 6 (six) witnesses examined by the prosecution, PW-5 was the forensic expert, who examined the seized currency notes and submitted a report with the opinion that those notes were not genuine. 9. 8. Out of the 6 (six) witnesses examined by the prosecution, PW-5 was the forensic expert, who examined the seized currency notes and submitted a report with the opinion that those notes were not genuine. 9. The testimony of PW-2 and PW-3 are of no consequence as PW-3 stated that he only heard about some counterfeit notes being seized from the accused. The PW-2, though, stated during his examination-in-chief that Sabin Deka handed over a 500/-rupees note to the cashier, during cross-examination, he admitted that he was not present when the transaction took place and he also did not notice the 500 rupee note. 10. PW-1 the informant deposed that the accused/appellant Sabin Deka gave him a 500 rupee note, which he suspected to be forged and accordingly informed the police and handed over the note to police. According to him, police seized seven numbers of currency notes of 500 denomination from the accused/appellant. 11. PW-4, Shahnur Choudhury stated that on 01.07.2003 Sabin Deka sold a pair of cows to one Satish Biswas for an amount of Rs.4,200/-and Satish Biswas paid Rs.4000/-in cash and Rs.200/- was kept balance to be paid in the next market. He also stated to have stood as guarantor for making the payment of Rs.200/-. On the next market when Sabin Deka gave a 500 rupee note to the mahaldar in connection with the sale and purchase of the cow, the said note was found to be counterfeit. During cross-examination, PW-4 admitted that he was not present when money was paid by the accused/appellant Sabin Deka to the lessee of the market. Thus, none of the PW-3 or PW-4 had seen the accused appellant giving 500 rupee note to PW-1. 12. Though eight numbers of Rs.500/-notes were shown to have been seized vide Ext.2 seizure list and sent for forensic examination, Ext.2 does not support the oral evidence of the PW-1, inasmuch as, there was no mention in the Ext.2 that those notes were seized from the accused appellant. Rather Ext.2 seizure list (serial number 5) shows that all the eight fake currency notes were seized from Nagen Basumatary (PW1) and not from the accused. The investigating officer PW-6 stated that the eight currency notes were seized from Nagen Basumatary. According to PW-6, Nagen Basumatary told that the notes were handed over to him by the accused. Rather Ext.2 seizure list (serial number 5) shows that all the eight fake currency notes were seized from Nagen Basumatary (PW1) and not from the accused. The investigating officer PW-6 stated that the eight currency notes were seized from Nagen Basumatary. According to PW-6, Nagen Basumatary told that the notes were handed over to him by the accused. However, PW1 Nagen Basumatary stated in his evidence and also in the FIR that accused gave him only one 500 rupee note. According to PW-1, police seized 7 (seven) numbers of 500 rupee note from the accused. Therefore, the evidence of PW-1 and PW-6 appears to be contradictory and mutually destructive so far the seizure of currency note from the accused is concerned. What therefore crystalises from the evidence, oral as well as documentary is that there was no legal evidence to prove that eight numbers of currency notes involved in the present case were seized from the possession of the accused. 13. So far one Rs.500/-note is concerned, the accused/appellant admitted in his examination under Section 313 Cr.P.C. that on the previous market he sold a pair of cows to Satish Biswas (co-accused) who paid Rs.4000/-in terms of eight 500 rupee notes, out of which one 500 rupee note he gave to the Mahaldar and later, on being asked by PW-1, he handed over all the seven notes to PW-1. Apparently, the accused stated in his examination under Section 313 Cr.P.C. that he handed over eight currency notes of 500 denomination to PW-1, which he received from Satish by selling cows. 14. The conviction of the accused is found to have been based on the statement of the accused under Section 313 CrPC. What is evident from the statement of the accused under Section 313 CrPC is that he received 8 numbers of currency notes of 500 denomination from Satish, which he handed over to PW-1. But prosecution evidence are found to be short of proving beyond doubt that the eight numbers of currency notes seized from PW-1, were the notes, given by the accused to PW-1, inasmuch as, no evidence was adduced to establish that the seized notes were given by the accused to PW-1. 15. But prosecution evidence are found to be short of proving beyond doubt that the eight numbers of currency notes seized from PW-1, were the notes, given by the accused to PW-1, inasmuch as, no evidence was adduced to establish that the seized notes were given by the accused to PW-1. 15. Even if it is assumed for the sake of argument that the fake currency notes seized from PW-1 were given by the accused, then in order to establish a charge under Section 489-B, prosecution needs to prove the following ingredients. (i) The notes in question were currency notes or bank notes. (ii) Such currency notes or the bank notes were counterfeit. (iii) The accused sold or bought from or received from any person or otherwise trafficked in or used as genuine any forged or counterfeit notes. (iv) The accused know or had reason to believe it to be forged or counterfeit. 16. The above essential ingredients of the offence under Section 489-B would show that, mere possession or using counterfeit note itself would not constitute an offence under Section 489-B IPC, unless men-rea i.e. the accused had the knowledge that the notes were counterfeit and with such knowledge he had used or sold the same. 17. The evidence brought on record clearly indicated that the accused appellant received eight numbers of 500 rupees notes by selling cows and the notes which was given to the Pw-1, was one of the said notes which he received from the co-accused, Satish. That the accused/appellant sold his cows to Satish Biswas (co-accused and since acquitted) and received only 4000/-is also supported by the prosecution witness Pw-3. No evidence is brought on record to show that the accused/appellant had the knowledge that the said currency notes were not genuine. There was also no evidence on record to show that the notes were of such, that any layman by merely looking can say that the notes are not genuine, inasmuch as, the evidence of the PW-5, the forensic expert clearly demonstrated that in order to ascertain whether the notes were genuine or fake notes, he had to photograph the notes besides, under taking other scientific examination. When the notes were such that by mere look it was not possible to say that those were counterfeit, there could not be a presumption of knowledge. When the notes were such that by mere look it was not possible to say that those were counterfeit, there could not be a presumption of knowledge. Therefore, in absence of evidence, that the accused had the requisite mens-rea or knowledge with regard to the notes in question, conviction of the accused was not possible. The Apex Court in Mammuti Vs. State of Karnataka (1997) 4 SCC 723 observed on similar facts that in absence of evidence that the accused had the knowledge or reason to believe that the notes were counterfeit, conviction is not proper. 18. In Umashankar Vs. State of Chattishgarh (2001) 9 SCC 642 , the Apex Court held that : “8. A perusal of the provisions, extracted above, shows that mens rea of offences under Section 489-B and 489-C is, "knowing or having reason to believe the currency-notes or bank notes to be forged or counterfeit". Without the afore-mentioned mens rea selling, buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit currency-notes or bank-notes, 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 bank-notes is not sufficient to make out a case under Section 489-C in the absence of the mens rea, noted above. No material is brought on record by the prosecution to show that the appellant had the requisite mens rea……………………………..” 19. In absence of any evidence that the accused/appellant had the knowledge that notes were counterfeit, the conviction of the accused appellant cannot be sustained. In any view of the matter, the evidence brought on record in the instant case, appears to be grossly inadequate to bring home the charge under Section 489-B IPC, against the appellant, and as such, the conviction and sentence of the accused appellant cannot be maintained. Accordingly, appeal is allowed and conviction and sentence are set aside. 20. The accused be released forthwith if not required in any other case. 21. Send down the LCR.