1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 468 OF 2006 Javed Abdul Aziz Shaikh ) Aged : 38 yrs. Occ : Taxi Driver, ) residing at 17, Tardeo Chawl, ) Narayan Nagar, Ghatkopar, ) Mumbai- 400086 ) (Presently lodged at Kolhapur ) Central Prison, Kolhapur) ) ...Appellant (Original Accused) vs. The State of Maharashtra ...Respondent Mr.Amin H. Solkar with Mr.Yakub Shaikh with Mr.Husain Shaikh with Mr.Sarfaroz H. Khalif for the Appellant. Mr.J.P. Kharge, APP for the State. CORAM : V.M. KANADE, J. DATED : JUNE 22, 2010 ORAL JUDGMENT :- 1 Heard the learned Counsel for the appellant and the learned APP for the State. 2 2 The appellant is convicted for the offence punishable under Section 489-B read with 120-B of the IPC and is sentenced to suffer RI for 10 years and to pay fine of Rs.2000/- and in default, to suffer RI for six months. He is also convicted for the offence punishable under Section 489-C read with 120-B of the IPC and sentenced to suffer RI for 7 years and to pay fine of Rs.1000/- and in default, to suffer RI for three months. The trial court has directed that the substantive sentence should run concurrently. 3 The prosecution examined six witnesses in support of its case and the trial court on the basis of evidence adduced by the prosecution convicted the appellant for the said offence. 4 Shri Solkar, learned Counsel for the appellant submitted that the prosecution has not established the charge for the offence punishable 3 under Sections 489-B and 489-C against the appellant herein. He submitted that for the purpose of establishing an offence under Sections 489-B and 489-C, the prosecution had to establish that the appellant was aware and had knowledge that he was carrying counterfeit currency notes and that after having the said requisite knowledge, he still was trying to use the said counterfeit currency notes. It is submitted that the prosecution witnesses viz. PW 1 and PW 2 in their evidence categorically stated that when they made an enquiry with the appellant when he was carrying a bag, he told them that he was a taxi driver and he did not know the contents of the said bag and that he was asked to deliver the said notes by a person who was staying in room no. 103 of the said hotel. He invited my attention to the said evidence and submitted that in view of the testimony of these two witnesses, the prosecution has, in fact, admitted that the appellant did not have the knowledge about the notes being counterfeit currency notes. He submitted that therefore, on this 4 ground alone, the appellant should be acquitted for the said offence. In support of the said submission, he has relied on two judgments viz. Judgment of the Apex Court in the case of Umashanker vs. State of Chhattisgarh, reported in (2001) 9 SCC 642 and another judgment of the Apex Court in the case of M. Mammutti vs. State of Karnataka, reported in (1979) 4 SCC 723. He also relied on the judgment of the learned Single Judge of this court in the case of Ashok Baburao Shinde vs. State of Maharashtra, reported in 2005(1) Bombay C.R. (Cri) 401. 5 The learned APP, however, vehemently opposed the said submission. He submitted that the appellant had not disclosed the name of the person to whom he was going to deliver the said currency notes. 6 After having heard both the learned Counsel at length, in my view, the submissions made by the learned Counsel for the appellant will have to be 5 accepted. 7 In order to prove the ingredients of the offence under Sections 489-B and 489-C, the prosecution firstly has to establish that the said notes were found in the possession of the accused and the most important ingredients is regarding the knowledge of the accused in respect of the said currency notes. The burden of establishing this fact is squarely on the prosecution and unless the prosecution establishes that the accused had knowledge that the notes which he was carrying are fake currency notes, the ingredients of Sections 489-B and 489-C are not established by the prosecution. In the present case, though the prosecution has proved the seizure of these notes from the bag which was being carried by the appellant by examining the panch witnesses and the other witnesses who had seen the seizure of these notes from the appellant, the crucial fact regarding the knowledge of the appellant regarding the said 6 counterfeit currency notes has not been established. PW 1 in his evidence has stated that he had received a phone call from his Assistant Director Mr.P.V. George instructing him to go to Andheri (East), near Vishal Hall to apprehend a person who was supposed to take delivery of the smuggled fake Indian currency. He was informed that he would be joined by his colleagues near the said place. He, accordingly, went to hotel Highway Inn within one hour and the other officers joined him at that place. He also took two panchas from the area and at that time, when they reached the respective counter, he saw one person standing with three parcels. On enquiry, he gave his name and when an enquiry was made regarding the contents of his shoulder bag and one corrugated box which was held by him and the corrugated box which was lying near his feet. This witness has stated that the said person told that he was not aware of the said contents and that those packages were given by one person Babubhai from Sharajah and he was asked to deliver it to the 7 appellant. Thereafter, the said bundle was opened and it contained fake currency notes. PW 2 also in his evidence has corroborated the version of PW 1. Both these witnesses, therefore, have, in turn, stated that the appellant was not aware of the contents of the said three parcels. In view of this evidence, the prosecution has not established that the appellant was aware of the contents of the said box or that he was aware that it was containing fake currency notes and even after knowing that the said bag contained fake currency notes, he was in possession of the same for the purpose of using it as a currency notes. 8 The ratio of the judgments in the case of Umashankar (supra) and M. Mammutti (supra) is squarely applicable to the facts of the present case. The Apex Court in M. Mammutti s Case (supra) has observed as under :- But the difficulty is that 8 the prosecution has not put any specific question to the appellant in order to find out whether the accused knew that the notes were of such a nature. No such evidence has been led by the prosecution to prove the nature of the notes also. In these circumstances, it is impossible for us to sustain the conviction of the appellant. Same view has been taken by the Apex Court in Umashanker s case (supra). The Apex Court has observed that merely on the basis of evidence that the currency notes were given to panch witness by the accused were take, a presumption could not be drawn that he was aware that the said notes were fake or the counterfeit. In para 8, the Apex Court has observed as under :- 8. A perusal of the provisions, extracted above, shows that mens rea of offences under Sections 489-B and 489-C is knowing or having reason to believe 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 9 constitute offence under Section 489- B IPC. So also possessing or even intending to use any forged or counterfeit currency notes or banknotes 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. The High Court, however, completely missed this aspect. The learned trial Judge on the basis of the evidence of PW 2, PW 4 and PW 7 that they were able to make out that the currency note alleged to have been given to PW 4 was fake, presumed such a mens rea. On the date of the incident the appellant was said to be an eighteen- year old student. On the facts of this case the presumption drawn by the trial court is not warranted under Section 4 of the Evidence Act. Further it is also not shown that any specific question with regard to the currency notes being fake or counterfeit was put to the appellant in his examination under Section 313 of the Criminal Procedure Code. On these facts, we have no option but to hold that the charges framed under Sections 489-B and 489-C are not proved. We, therefore, set aside the conviction and sentence passed on the appellant under Sections 489-B and 489-C IPC and acquit him of the said charges (See: M. Mammutti v. State of Karnataka (1979 4 SCC 723 : 1980 SCC (Cri) 170 : AIR 1979 SC 1705). 10 Similar view has been taken by the learned Signle Judge of this Court in the case of Ashok Baburao Shinde (supra). In view of the ratio of the said judgment, therefore, in my view, the prosecution has failed to establish the crucial ingredients of Sections 489-B and 489-C. The order of conviction passed by the Sessions Court will have to be set aside. 9 The appeal, accordingly, is allowed. The appellant is acquitted of the offence punishable under Sections 489-B and 489-C of the IPC. The appellant shall be released forthwith unless he is otherwise required in any other case. 10 Appeal is disposed of. (V.M. KANADE, J.)