CR.A/382/1996 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 382 of 1996 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= STATE OF GUJARAT - Appellant Versus ABIMABHAI JAYRAMBHAI MAHESHWARI & 1 – Respondents ========================================================= Appearance : MR MAULIK NANAVATI ADDL PUBLIC PROSECUTOR for Appellant: 1, NOTICE SERVED for Respondents: 1 - 2. MR SK PATEL for Respondents: 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 27/08/2008 CR.A/382/1996 2/6 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The State of Gujarat has filed the present appeal against the judgment and order dated 27.2.1996 passed by the learned Additional Sessions Judge, Sabarkantha Camp at Modasa in Sessions Case No. 95 of 1995. By the impugned judgment the trial Court has acquitted the present respondent – the original accused of the offence punishable under Section 489(B) and 114 of the Indian Penal Code. 2. The gravamen of the charge against accused is that on 26.11.1994 Pravinaben, daughter of accused Abhimanbhai, had given Rs.500/- to Vishnubhai Patel towards price of grocery purchased from him shop. Vishnubhai did not have change of Rs.500/- and so Pravinaben told him to keep the money and that she would collect the balance amount later. On 27.11.1994 shop of Vishnubhai was shut and so Pravinaben went on 28.11.1994 to collect money. Vishnubhai told her that he still did not have sufficient change and that he would get it from the bank. On hearing this, Pravinaben gave another two notes of Rs.500/- each to Vishnubhai and requested him to get them also changed into currency of lesser denomination. She gave this money to Vishnubhai for exchange for instructions of her father. At about 1-30 PM Vishnubhai went to State Bank of CR.A/382/1996 3/6 JUDGMENT India and gave the three notes for getting them changed into currency of lesser denomination. 3. Shri Choudhary, cashier at the cash receipt counter, on seeing the notes got suspicious and took them to the Head Cashier Shri Patel, who also felt the notes to be note genuine. They asked Vishnubhai abut the notes and he told them that he has received them from accused Abhimanbhai. Abhimanbhai was called to the Bank and they all went to the chamber of the Branch Manager Shri Rajendrakumar Sankhsera. The Manager also felt the notes to be counterfeit and inquired from Abhimanbhai as to how they came in his possession. Abhimanbhai told him that he had received the notes from a purchaser against sale of cloth. As the bank officials believed that the notes were fake, police was informed and a complaint came to be registered against Vishnubhai and Abhimanbhai. During the course of investigation it was found that there is no material against Vishbubhai and accordingly a report was filed under Section 169 of the Criminal Procedure Code to that effect. Instead it was found that Ghanshyambhai son of Abhimanbhai was involved in the crime in as much as he had given the notes to his sister Pravinaben. Both the accused were tried by the Sessions Court and acquitted. 4. Heard Mr. Maulik Nanavati, learned APP for the CR.A/382/1996 4/6 JUDGMENT State and Mr. S.K. Patel, learned advocate for the respondents. 5. It is not in dispute that Pravinaben had given the notes to Vishnubhai and that Vishnubhai had carried the same notes to the Bank. It is also not in dispute that these three currency notes had been found to be counterfeit as opined by the expert. The defense of the accused before the trial Court was that he had received these three Rs.500/- notes in ordinary course of his business. He did not know that these currency notes were counterfeit and he came to know about it for the first time when the Manager informed him about them being fake. 6. We find from perusal of the record that there is no evidence of any witness to show that the counterfeit notes were of such a nature or description that a mere look at them would convince any person of average intelligence that it was a counterfeit note. On the contrary the evidence of Manager Shri Sankhsera (PW-1) and Cashier Niranjanbhai Choudhary (PW-2) is categorical that a common man by simply looking at the notes would perhaps not be able to say with certainty that they were counterfeit notes. They believed the notes to be counterfeit because as part of their job they regularly deal with currency notes and therefore could suspect these three notes. Mr. Nanavati has submitted CR.A/382/1996 5/6 JUDGMENT that once the accused is found in possession of the counterfeit notes, he must be presumed to know that the notes are counterfeit, If the notes were of such a nature that mere look at them would convince anybody that it is counterfeit such a presumption could reasonably be drawn. But the difficulty is that the prosecution has not led any evidence to prove that the accused knew or could reasonably have known by looking at them that the notes were counterfeit. It is now settled law that mens-rea is essential to constitute an offence under Section 489B. A perusal of the section shows that mens-rea is “knowing or having reason to believe the currency notes or bank-notes are forged or counterfeit.” Without the aforesaid 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 IPC. No material has brought on record by the prosecution to show that the respondents had the requisite mens-rea. Further, it is also not shown that any specific question with regard to the currency notes being fake or counterfeit was put to the respondents in their examination under Section 313 of the Criminal Procedure Code. On these facts, we have no option but to concur with the conclusion of the trial court that the charge under Section 489B and 114 is not proved. CR.A/382/1996 6/6 JUDGMENT 7. The presumption of innocence is further fortified to this reason that when one note was already there, further notes were also given for exchange. If the knowledge of the notes having counterfeit was there, then unless verification was there, a guilty mind would not risk another. Thus also the presumption is strengthen. 8. For the foregoing reasons, appeal fails and hereby is dismissed. The Registry is directed to send the records and proceedings forthwith to the trial Court. Bail bond stands cancelled. (BHAGWATI PRASAD, J.) (S.R. BRAHMBHATT, J.) pallav