e =l=.I-T- IN THE HIGH COURT OF SIKKIM AT GANGTOK Crl. A. No.1 of 2008 P-a Lal Gupta, S/o Late angina Ram Gupta, R/ o Jorethang Bazar, South sikkim ...... Appellant. versus State of Sikkin ..... Respondent For appellant : Mr. A. Mou]ik, Senior Advocate with Mr. B. K. Gupta, Advocate. ForRespondent : Mr. J. 8. Pradhan, Public Prosecutor with Mr. Karma 'Ihinlay, Additional Public Iirosecutor and Mr. S. K. Chhetri, Assistant Public Prosecutor. Dq[ke Of Hearing Dabe Of dedgmen± 02.09.2009 02.09.2009 PRESENT: HON'BLE TRE CREF JUSTICE MR. .us'rlcE AFTAB H. sAqzIA HPN'E.LE MR. JUSTICE A.P. SUBBA, qupGE euDGMENT AND ORDER ioRALi Schhia, C| Heard Mr. A. Moulik, learned senior counsel assisted by Mr. 8. K. Gupta, leaned counsel for the appellant. Also heard Mr. J. 8. Pradhan, leaned Pubhic Prosecutor with Mr. Karma Thinlay, /-\``.--. a learned Additional Public Prosecutor and Mr. S. K. Chhetri, learned Assistant Pubfic Prosecutor for the State. 'Ihis crininal appeal is directed against the judgment and order dated 30-07-2008 passed by the leaned Sessions Judge (South & West), Nanchi in Sessions Trial Case No.22 of 2005 whereby the appellant has been convicted under Sections 4898 and 489C of the Indian Penal Code (in short qpc) and sentenced to undergo imprisonment for 2 years and 6 months and to pay a fine of Rs.35,000/- (Rupees thrty five thousand) under section 4898 of the IPC and to pay a fine of Rs.15,000/- (Rupees fifteen thousand) under section 489C. The facts of the case in brief as unfolded by the prosecution may briefly be stated as fonows:- One Shri Gulam Sinch.Rai (PW2) of Baiguney Busty in South Sik]rim accompanied by his aulity Maity Rani Rai (PW3) came to Jorethang Bazar in South Silddm for the purpose of pawning an item of gold jeweneary called "Maitichar" belonging to Smt. Nan Maya Rat (PW4) with a pawnbroker in order to raise some cash money for maldng some purchase on the occasion of his brother's wedding. After reaching Jorethang Bazar they pawned the gold jeweuery with the pawnbroker, i.e., the accused-appellant and obtained cach of Rs.2,000/- in the denomination rupees one .:`)`= e hundred cuITency-notes and proceeded to the market for maldng purchases. As they purchased a Jeans Pant and were delivering Rs.200/- in the denomination of rupees one hundred to the shopkeeper as price for the Jeans Pant one Bhanu Bhalsta Pradhan (PW5) who happened to be present there, saw the currency-notes and told them that the currency-notes look like false notes and enquired as to wherefrom they had got the culTeney-notes. Upon such enquiry, they disclosed that they had got the curreney-notes in question from the shop of the appeuant and thereafter both of them accompanied by the other person, i.e., (PW5) came to the shop of the appenant and from there they proceeded to the police station where they surrendered the curreney notes and made a verbal complaint. The verbal complaint so made to the O.C. Jorethang Police Station was reduced into writing and was sigried by Gulam Sinch Rai (PW2). On the basis of the complaint, a case under Sections 4898 and 489C IPC was registered against the appellant and investigation was taken up. In the course of the investigation, the appenant was arrested and the 22 numbers of suspected fake notes of hundred rupees denomination and a tom seal/sticker of State Bank of India, Tadong Branch, Gangtok were seized. In the course of such further investigation, the gold j.cwellery (Maitichar Gold) in question was seized and the suspected fake currency-notes were ±'.t:.-- sent to CF`SL, Kolkata for forensic examination. The inteITogation of the accused was also carded out and on receipt of report from CFSL Kolkata which was positive, a charge sheet under Sections 4898 and 489C IPC was submitted against the appellant. Duing the trial, the prosecution examined as many as 13 witnesses which included 2 official witnesses, namely, PW5 Bhanu Bhakta fhadhan as an expert on cuITenqy notes and PW13 PI C. Chopel, the Investigating Officer (for short, I.0.). Defence examined none. 6. 'The leaned Sessions Judge on consideration of testinony of the witnesses who were examined by the prosecution and other materials on record as wen as upon hearing of the learned counsel for the accused-appellant and the learned Public Prosecutor cane to the conclusion that the prosecution had been able to prove the case beyond reasonable doubt and accordingly, convicted the accused and sentenced him as already indicated above. Mr. Moulik, leamcd senior counsel for the appellant, challenging the inpugped conviction and sentence, has initiated his arguments lay claining vehemently that the leaned Sessions Judge committed eITor of law in interpreting the provisions of law as contained in Sections 4898 and 489C of the IPC. Accol.ding to !t........ e hin, the prosecution had totally failed to prove the essential ingredients of the offences under Sections 4898 and 489C of the IPC inasmuch as there were no convincing materials avalla.ble on record to constitute the offences under those Sections against the appellant. Even the testinony of the witnesses so projected by the prosecution could not disclose the involvement of the appellant in the commission of the offences under the charged sections beyond reasonable doubt. Supporting the conviction and sentence, Mr. FTadhan, leaned Public Prosecutor, on the other hand, has strenuously contended that the prosecution has proved throuch all its key witnesses particularly, PWI 8. Manna, PW2 Gulam Since Rai, PW3 Malta Rani Rai, PW5 Bhanu Bhakta Pradhan, PW8 Prithvi Nath Sin8h, PW12 T. 8. Rai and PW13 PI C. Chopel/Pofice Inspector, the I.0., its case against the appellant and it has been successful in bringing home the guflt of the appellant under the al]ove-mentioned Sections beyond reasonable doubt. Further, he has also urged that the evidence of all the withcsses so examined by the prosecution inspired confidence and there is no scope to disbeHeve and distrust the testimony of those witnesses. Under such circumstances, it is submitted that the trial Court was justified and correct in convicting and sentencing the appellant under the Sections as mentioned above. ..,i,:```...-.. 0 In order to appreciate the rival contentions of the parties, it is necessary and desirable to refer to the` provisions of law contemplated under those two Sections i.e., Sections 4898 and 489C IPC. For the sake of convenience, the two Sections are quoted as under:- 10. "4898. Using as genuine, forged or counterfeit currency-notes or bank-notes.-Whoever seus to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, Imowing or having reason to befieve the sane to be forged or counterfeit, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to teri years, and cha]l also be liable to fine. 489C. Possession of forged or counterfeit cunency-notes or banl=-notes.- Whoever has in his possession any forged or counterfeit currency-note or balik-note, ]mowing or having reason to behieve tbe same to be forged or couliterfeit and intending to use the same as genuine or tbat it may be used as genuine, shall be puliiched with imprisonment of either description for a term which may extend to seven years, or with fine, or with both." An ordinary reading of both the above quoted sections would go to show that to constitute an offence under Section 4898, following essential ingredients are necessary: (1) The note in question is a cuITency-note or a bank- note; (2) It was forged or counterfeited; (3) The accused sold to, or boucht from, or received it from any person; `j,\\`.`-- © C) (4) That the accused lmew or had reason to believe it to be forged or counterfeited. Similarly, the ingredients which are required to constitute an offence under Section 489C are as fouows: (1) The note in question is a currency-note or bank- note; (2) Such note was forged or counterfeited; (3) 'The accused was in possession of the currency- note or bank-note; (4) The accused intended to use the same as genuine; (5) 'The accused knew or had reason to beHeve the note to be forged. 11. Basicall:y it is stipulated in above provisions of law that the accused who is in possession of the alleged forged or counterfeit curreney-notes lmew or had reason to believe that those cuITeneyL notes to be forged. The offences under those Sections can only made out when the accused lmows that the counterfeit notes he possessed are forged or counterfeited and those are intentionally used as genuine. 12. A conjoint reading of both the above provisions of law would go to chow that mere possession of the culTeney-note will not be sufficient to constitute the offence described under those Sections. Both the Sections clearly indicate that a person wbo possesses such forged or counterfeit currency-note or bank-note -ill= must have the lmowledge or have the reason to behove that the said culTeney-note or bank-note are forged or counterfeit in order to fasten criminal linbilit]r against bin. In other words, the accused must possess and sen or buy or receive or use as genuine, any forged or counterfeit curl.ency-note or bank-note, "]mowing or having reason to behove the same to be forged or counterfeit". 13. Mr. Moulik, has, referring to the above-mentioned essential ingredients of the offcnces under Sections 4898 and 489C of the IPC, vehemently contended that none of the essential ingredients of the offences under Sections 4898 and 489C are available and present in the instant case. 14. Drawing our attention to the testinony of PW2 Gulam Singh Rat and PW5 Bhanu Bhakta Hadhan, the learned senior counsel has argued that PW5 could suspect the cuITeney-notes in question to be false as he was a constable of Special Branch of Sikkim Police and an expert. .This witness (PW5) hinself said that one of his duties was to detect the fake culTency-note. According to him, he suspected the currency-notes to be fake notes as they appeared to be dissinilar to genuine note. But mere suspicion, as deposed by PW 5, cannot constit}ite an offence under the relevant Sections in question. ',i`.'.'`.``-`.- C) a 15. 'Ihe learned senior counsel has also drawn our attention to the evidence of PW12 T. 8. Rai, the Deputy Superintendent of Police of the Jorethang Police Station. According to this witness, he had on the same date, i.e., 1-2-2004 raided the Jewenery Shop of the appellant and recovered a total cash of Rs.2,000/- which comprised of 20 numbers of one hundred rupees culTency-notes and out of those 20 culTeney-notes he found 2 culTency-notes of hundred rupees denomination to be fake curreney-notes. 16. Mr. Moulik, the learned senior counsel has also referred to the statement made by appellant and recorded under Section 313 of the Code of Criminal Hocedure, 1973 (in short "Cr.P.C."). wherein answering to question Nos.12 and 17, the appellant categorically stated that he paid that amount of Rs.2,000/- of one hundred rupees denomination to PW3 but he did not know what PW3 did with the money and even he was not aware that those currency-notes were forged or counterfeit as they were given to hin by the customers alid he had not manufactured or printed those currency-notes. 17. Under such circumstances, it is submitted by the learned counsel for the appellant that there is no scope to prosecute the appel]ant for the alleged commission of offence of using as genuine, forged or counterfeit currency-notes or bank- ..i.,....-` 10 notes or for possessing of couliterfeit currency-notes or bank-notes etc. 18. We have carefully appreciated and considered the entire evidence on record including the evidence of PWs 2, 3, 5, 8, 12 and 13. We have also closely examined the statement made by the appellant under Sections 313 of the Cr.P.C. 19. 'The actual facts that emerge from the evidence of those witnesses and the materials on record are that the appellant was a shopkeeper ouning a Jewenery Shop. He was only concerned with his customers in carrying out his business day in and day out. It is revealed from his statement recorded under Section 313 of Cr. P.C. that he was not aware that those notes were fake and counterfeit. He stated clearly and categorically that those currency-notes were given to him bry the customers coming to his shop and when he made the payment to the complainant PW2 and PW3 after the golden jewellery "Maitychar" was being pawned with bin, he was not aware that those culTeney-notes were fake. Further, it is also seen that when the appellant's house was raided by PW12 he found Rs.2,000/- comprising of 20 numbers of hundred rupees deliomination of which ttro of the huridred rupees notes only were found to be fake. It has also come from the evidence of the seizure memo that the two notes which were seized .,\k`....:,-.... 11 during raid from the house of the accused-appellaut were having original tom tag of State Bank of India, Tadong Branch, Gangtok. 20. Significantly it is to be noted that not a single witness so produced to prove its case by the prosecution ever deposed that the appellant lmew or had reason to believe those curreney notes to be forged. 21. In view of the above circumstances, the possibility of the fake curreney-notes having been given to him by the customers in the course of his business and he being a laymen could not suspect the said culTeney-notes to be fake cannot be ruled out. It is hardly necessary to observe that mere possession of forged note is not an offence. The offence is directed against traffcking in fake notes and what is essential is that apart from possessing the fake notes, the appellant must know of its falsity and having known uses them. 'The appellant must have lmown or at least must have had reason to behove that the notes were counterfcited. It is also the requirement of law that the possession must be accompanied by intention to use that as genuine. Nothing has been broutht on record by way of even collateral circumstances to show that the appenant had intention to use the false notes as genuine. On the other hand, as already noted above, it cannot be said on the basis of the materials on record that the appellant lmew or had reason to •.::;,.,.`..:.--. a 12 believe that the cuITency-notes ,he was dealing with were counterfeited and issued such notes as genuine. 22. Under the circumstances, we have no hesitation to hold that the appe]lant did not possess those curreney-notes lmowin9ly or ha.ving reason to believe the same to be forged and counterfeit and trafficked such notes as genuine. In view of this, we are of the firm opinion to hold that the prosecution has failed to prove its case against the appellant under Sections 4898 and 489C of the IPC beyond reasonable doubt. Accordingly, in our opinion, the impugned conviction and sentence call for interference of this Court. 23. In the result, the appeal stands allowed and the impugried conviction and sentence is hereby quashed. 24. It is stated that the appeuant is presently on ball after serving 11 days of incarceration. Needless to say that consequent upon the quashment of the conviction and sentence, his bail bond stands discharged. 25. Send down the lower court records forthwith. P. Subba ) Judge -Zee rsr/ds .usti.#Saihia ) Chief .ustice -2009 I_