(& (^-^ ^euL^ Single Benc^ IN THE HIGH COORT OF JUDICATUBE AT BIIASPOR (C.G.) CRIMINAL APPEAL N0. ) ^ 2-/2005 APPELIANT ^^ Dinesh^ar alias Munna, S/o» Shri Babulal Deshmukh^ Aged about 39 years^ Occupation - Cultivation, R/o. Village Tikri, P.S. Arjunda^ District Durg (C.G<) VERSUS State of Chhattisgarh, Through P.S. Magarlod, District Dhamtari (C.G.) CRIMINM. APPEAL UNDER SEGCION 374 OF THE CQDE OF CSJSSnSKL PROCEDURE, 1&73 J ^ HIGH COURT OF CHHATTESeARH AT BILASPUR Cr. AoDeal No. 152/2005 Dineshwar @ Munna Vs. State of Chhattisgarh Post for Orders : /Z.05.2006 Sd/- j DUip Raosaheb Deshmukh Judge ^: 'y ^ HI6H COURT OF CHHATTISeARH AT BILASPUR Cr. ADpeal No. 152/2005 Single Bench: Hon'ble Shri Dilip Raosaheb Deshmukh, J. Dineshwar alias Munna Versus State of Chhattisgarh 5mt. Fouzia Mirza, Counse! for the appellant Shri Ashish Shukla, Government Advocate for the State. JUD6MENT (Delivered on this 12th day of May 2006) This appeal is directed against the judgment dated 27,1.2005 delivered by Shri R.P.Sharma, Additional Sessions Judge, Dhamtari in sessions case No.401/2003 whereby the qppellant was convicted under Sections 489-A, 489-C, 489-b <md 120-B I.P.C. and sentenced to rigorous imprisonment for 10 years, 5 years, 10 years ond 5 years respectively and also to pay a fine of Rs*200/- for each offence, in default to undergo additional imprisonment for one month. Co-accused Dr. Arun Sinha, Om Prakash, bwarika Soihu and Tulsiram Sahu were acquitted. 2. Briefly stated the factual matrix is that the Shri S.K.bubey, P.W.ll, Station House Officer P.S. Magarlod received secret information 1+iat co-accused t)r. Arun Sihha, was haying lar9e quantity of counterfeit currency notes in his possession. On the aforesaid information, counterfeit currency notes were seized from Dr, Arun Sinha. On the basis of inforination 9iyen by t)r. Arun Sinha, counterfeit currency notes were also seized from co-accused Om Prakash. On the basis of information 9iven by the accused-persons, the police searched the house of the appe!l<xnt-Dineshwar on 5.8,2003 arsd seized from the possession of Khilesh Kumar one printer scanner, copier machine cabinet, one electricai press, one steei cutter, one scissor, one pouch of gum, one wooden scde, one plastic roti, 20sheets of white paper, one piastic scale, 101 counterfeit currency notes of the denomination Rs.100/- bearin9 same Serial No.2 RW 570092, 8 counterfeit currency notes of Rs.100/- bearing serial No.OAS 894304, 3 counterfeit currency notes of fts.100/" each bearing No. 3PM 874686, two counterfeit currency notes of Rs.100/- each bearing serial No* 40C 977701, 5 counterfeit notes of the denomination of Rs.50/- each bearing seriai No.4 MQ 357820 and 50 sheets of plain paper of each on one sjde of which counterfeit note of Rs.100/- had been printed and one plain sheet of paper on which two counterfeit notes of Rs.100/- bearing serial No.4A5 894304 vide Ex.P.13. 3. The seized currency notes were sent to the fieneral AAanager, Currency Note Press, Nasik Road vide leUer dated 11.8.2003 by the Superintendent of PoEice, bhamtari for opining whether the seized notes were counterfeit or reai. Vide report dated 4.9-2003, no specific opinion was given by the Currency Note Press, Nasik Road as to whe1+ser the currency notes were counterfeit or not. No reasons like photographs of Mahatma (yondhi were mentioned to show that the notes resembied with the genuine currency notes of the denomination of Rs.lOOA and Rs.50/-. Neither the memo of Superintendent of Police nor the report of Currency Note Press was tendered in evidence or exhibited. The currency notes alleged to have been seized from the house of Dineshwar were also not produced before the triai Court and consequently were aiso not exhibited as articles during the evidence led by the prosecution. 4. The cppeilant abjured 1+ie guilt, pleaded innocence and led no eyidence in defence. The prosecution examined as many as 12 fe.^ ^ witnesses. Retying upon the testimony of the Sub-Inspector S.K-bubey P.W.ll and the evldence of Santosh Kumar beshmukh P.W-6, the learned trial Judge convicted and sentenced the appellant as aforesaid. 5. Smt. Fouzia Mirza, learned counsel for the appellant argued that the conyiction of the appellcunt under Section 489-A, 489-C, 489- D and under Section 120-B was liable to be set aside GS neither the report of Currency Note Press, Nasik Road was tendered in evidence nor the articles to wit the currency notes alleged to have been seized from the appeilant Dineshwar were produced and exhibited before the trial Court by the prosecution. It was also argued that seizure memo Ex?<13 does not show that any computer or photocopier which are the main instruments to facilitate printing of currency notes, were seized. It was also urged that there was no evidence to show that the currency notes alleged to have been seized from the house of Dineshwar resembled with the genuine currency notes of the denomination of Rs.100/- and Rs.50/-. Lastly, it was urged that non- production of the currency notes alle9ed to have been seized from the appellant Dineshwar before the triai Court vitiates the prosecution. Keliance was placed on K. Hashim v. State af TM (2005) 1 Supreme Courtt Cases 237 and The State of Uthsr Pradesh v. Hafiz Mohd. Ismai! ancl o-thers /^.I.R. 1960 Supreme Court 669. On the other hand, Shri Ashish ShuRla/ learned 6overnment Advocate argued in support of the impu9ned Judgment and placed reliance on State of Karnataka v. K.S.^amdas and others 1976 CRI.L.J.228 and Ponnuswamyv. SlQie 1995 CRI.L.J. 2658. 6. Having heard the rival submissions, I have perused the record. Section 28 of the I.P.C, defines the word 'Counterfeit' which reads as under: r "28. "Counterfeit",--- A person is said to "counterfeit" who causes one thing to resemble another thing intending by means of that resemblonce to practise deception, or knowing it to be likely that deception wi!l thereby be practised, Explanation L -—It is not essential to counterfeiting 1+iat tiie imitation should be exact. E^lanation 2.— When a person causes one thin9 to resemble oinother thin9, and ihe resemblance is such that a person might be deceived thereby, st shall be presumed/until the contrary is proved, that the person so causing the one thing to resemble the o-Hier thing intended by means of that resemblance to practise deception or knew it to be likely that deception woutd 1+iereby be practised," 7. Section 489-A of the I.P.C. not only deals with complete act of counterfeitin9 but also covers the case where the accused performs any part of the process of counterfeitin9. Therefore, if the material shows that the accused knowingly performed any part of the process of counterfeiting. Section 489-A of the I.P.C. becomes applicable, Section 489-C of 1+ie 1JP.C. deals with possession of for9ed or counterfeit currency notes or banknotes. It makes possession of forged and counterfeited currency notes or banknotes punishable. Possession ond knowled9e 1+iat the currency notes were counterfeited notes are necessary in9redients to constitute offence under Sections 489-C and 489-A I.P.C. The wordin9 of Section 489-D of the I.P.C. is yery wide and would clearly coyer a case where a person is found in possession of machinery, instrument or materials for the purpose of being used for counterfeitino currency notes, eyen thou9h the machinery, instruments or materiais so found were not ail the materials particularly required for the purpose of counterfeitin9* 8. Section 120-B IPC provides for punishment for criminal conspiracy. Definition of "criminal conspiracy" aiven in Section 120-A reads as follows: ttl20-A. When two or more persons agree to do, or cause to be done,-—- (1) an i!legalact,or (2) an act which is not iStegal by 1+ie iilegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminaS conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursucince thereof."- The elements of a criminal conspiracy have been stated to be (o) OOT object to be accomplished, (A) a plan or scheme embodying mecyis to accomplish the object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any ©ffectualmeans, and {d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed/' 9. The word "Counterfeit" in Section 28 does not connote an exact reproduction of the original. Explanation 2 of Section 28 is of 9reat significance. It lays down a rebuttable presumption where resemblance is such that a person might be deceived thereby. In such a case the intention or the knowledge is like "colourable imitation" therein. In order to opply ^ction 28, what the court has to see is whether one thing is made to resemble another thin9 and if that is so and if the resemblance is such that a person might be deceiyed by it, 'rtiere will be a presumption of the necessary intention or knowled9e to make the thing counterfeit, unless the contrary is proved. 10. In The State of Utt-ar Prack^i v. Hoifiz Mohcf. Isffiail and othersA.IM. 1960 Supreme Court 669 it was held as follows: "The main ingredients of counterfeitin9 as laid down in 5.28 are (i) causing one thing to resembie another thing, and (ii) in tending by mecins of that resembldnce to practi^ deception or (iii) knowing it to be likely that deception will thereby be practised. Thus, if one thing is made to resembie another thing and the intention is that by such resemblance deception would be practised or even if there is no intention but it is known to be likely that 1+ie resemblance is such that deception wi!l thereby be practised there is counterfeiting. Then comes Explanation 1 to S. 28 which lays down that the imitation shouid be exact, Ordinarily counterfeiting impSies the i'dea of <m exact imitation; but for tiie purpose of the Indian Penal Code 1+iere can be counterfeitin9 even though the imitation is not exact and there are differences in detail between the origina! and the imitation so long as the resembiance is so ciose that deception may thereby be practised. Then comes the second ExpJcxnation which lays down that where the resemblance is such that a person might be deceived thereby it shall be presumed until the contrary is proved that the per-son causing one thing to resemble another thing was intending by means of that resembiance to practise aeception or knew it to be iikely that deception would thereby be practised. This Explonation iays down a rebuttable presumption where the resemblance is such that a person might be deceived 1+iereby. In such a CGSC 1+ie intention or the knowledge is presumed unless 1+se contrary is proved", 11. The above analysis of S. 28 of the I.P.C. shows that there is no necessity of importing words like 'colourable imitation' therein, In order to appiy it, what the Court has to see is whether one thing is made to resemble another thing, and if that is so and if the resemblance is such that a person might be deceived by it there will be a presumption of the necessary intention or knowledge to make the thing counterfeit, unless 1+ie contrary is proved. What the court l4ierefore has to see is whether one thing has been made to resemble oinother thing. If it finds that in fact one thing has been made to [ resemble another it has further to decide whether the resemblance is such that a person might be deceived. If it comes to the conclusion that the resemblance is such that a person might be deceived by it, it can presume the necessary intention or knowledge (until the contrary is proved) and counterfeiting would then be complete. Therefore the two necessary elements in this case are (1) whether the counterfeit notes made by the appellant were made to resemble the genuine notes, and (ii) if they were so made to resemble, whether resemblance was such as might deceive a person. If both these things were found the currency notes in this case would be counterfeit oind the necessary intention or knowledge would be presumed unless the contrary was proved, 12, On the aboye touchstone, the first question 1+iat arises for consideration in this appeal is whether the notes seized from the possession of jOiilesh Kumar in the house of appellant-bineshwar were counterfeit currency-notes ond whether they were found in possession of machinery, instrument or materials for 1+ie purposs of being used for counterfeitin9 currency notes. The burden lies on the prosecution to show that the notes seized from the possession of Khilesh Kumar inside the house of cppellant-Dineshwar resembled genuine currency notes and the resemblance was such that any person might be deceived by it. This presumption could be discharged by the prosecution by tendering in evidence, the report of the Currency- Note Press, Nashik Road as evidence or by producing and exhibiting the currency notes seized from the possession of the appellant in Court. In this case, the prosecution has failed to discharge its burden completely. The report of Currency-Note Press was neither tendered and exhibited in evidence by the prosecution nor was put to 1+ie appellant in the examination under Section 313 Cr.P.C. It, therefore, could not form the basis for convicting 1+<e appellant under the offences aforesaid in para 1 (supra). Even otherwise, a perusal of the report of the Currency-Note Press shows that no specific opinion has been given that the currency notes resembled the genuine currency notes. It does not show that the photogroph of Mahatma ©andhiwas printed on the notes or not or whether the silver line was present in the notes or not. It does not give any specific opinion that the notes were counterfeit notes. 13. It was ar9ued by the learned Government Adyocate that since ail notes of the same denomination had the same serial number printed on it, therefore, merely by looking on those notes anybody couldmake out that they did not resemble the genuine currency notes Jn any manner. This ar9ument needs to be stated only to be reiected. Nobody looks at the serial number of the notes while accepting the notes. The most important features noticed are the colour of the note, the photograph of Mahatma Sandhi on it, the silver linin9 on the note and the paper used. The report of the Currency Note Printing Press, Nasik is silent on all the aforesaid points. 14. The ar9uments adyanced by the learned counsel for the appellont on the other hand haye force. The report of the Currency- Note Press, Nasik ftoad does not give any details of the notes sent for examination which would show that these notes resembled the genuine currency notes of the denomination of RsJOOA and Rs,50/«, Since the report of the Currency-Note Press, Nasik Road was not tendered and exhibited and also not put to the appellant in their examination under Section 313 CrJP.C., this report cannot confirm the basis for the conviction of the appellant. Non-production of the notes seized from the appellanfs house also creates a serious dent in the prosecution case and it cannot be held that the notes which were being printed or were seized from the possession of Khilesh Kumar <-^ from the house of the oppell<xnt-Dineshwar resembled the genuine notes or were counterfeit currency notes. 15 The testimony of Santosh Kumar Deshmukh P.W*6 clearly shows that at the time the Police searched the premises, he was all alone near the printing machine, It also cppears that he was detained by the police for two doys at the Police Station. His testimony also does not show the presence of Dineshwar or Khilesh Kumar Sahu at the time of alleged seizure of the machinery or notes vide Ex.P.13. This renders the testimony of Sub-Inspector Anup Nag P.W.8 doubtful that he had seized the apparatus for printing fake notes from Khilesh Kumar Sahu. It is pertinent to note that Sub-Inspector Anup Nag P.W-8 has also not mentioned in paragraph 2 of his testimony as to how and in what manner the seized notes resembled the genuine notes. His testimony in paragraph 13 creates a doubt that seized notes oind printing material were deposited in 1+ie Mcilkhana of the concerned Potice Station, The entry in the Malkhana register has also not been proved by the prosecution. So far as the other evidence !ed by the prosecution is concerned, Islam JOian P<W<1, Jitendra Kumar P.W-2, Giridhariiat P.W.3, Tikaram Verma P.W.4 and Ramkumar Sin9h P.W.5 did not support the prosecution story and were declared hostile, 16, In the case of Haffe Mohd. Ismail (supra) after comparison of the counterfeit labels and wrappers used by the accused on his socps with the 9enuine labels <xnd wrappers of 1iie Sunli9ht and Lifebuoy soaps of the complainant company 1+ie Court came to the conclusion that the resemblance between them was such as might deceive a person and 1+iat the differences in detail did not affect the resemblonce. In the present case, the prosecution did not care to produce the notes alleged to have been seized from the appelbnfs house before the trial Court and nothin9 was elicited in the testimony of Sub-Inspector Anup Nag P.W,8 to show that the notes which were 10 seized resembled the genuine currency notes- There is no evidence to show that the appellant conspired with Khilesh Kumar to print counterfeit notes. 17. Having thus considered the evidence led by the prosecution in its entirety, "t+ie following points emerge: a. The prosecution has failed to prove 1+iat the notes alle9ed to have been seized from the house of the appellant resembied the genuine currency notes and were counterfeit currency notes. b. The pro^cution has also failed to establish that the notes which were haif printed on one side on a plain sheet of paper resembled the genuine currency notes in any manner. c. The prosecution did not produce the seized currency notes before the trial Court and did not exhibit them in evidence, d, The report of 1+ie Currency-Note Press, Nasik ftoad was neither tendered nor exhibited in evidence. It also did not give any reason to conclude after examination that the notes resembled the genuine currency notes. It was also not put to the appellant during his examination under Section 313 Cr.P,C, e. Independent witnesses of the seizure of the currency notes did not support the testimony of Sub-Inspector Anup Nag P.W.8. f. There is no eyidence to prove that the appellant had hatched a criminal conspiracy with Khilesh Kumar for printing and circulating counterfeit currency notes. In view of the above, the prosecution has failed to bring home the guilt of the appellont-Dineshwar as also that of co-accu^d Khilesh Kumar Sahu under Section 489-A, 489-C, 489-D and 120-B of 1tie 1P.C. The present appeal has been preferred by appeilant- Dineshwar @ Munna. Since the case of co-accused Khitesh Kumar ia=?i 11 Sahu stands on the same footing as that of the appellant-bineshwar, in my considered opinion, in the interest of justice, co-accused Khilesh Kumar Sohu is also entitled to benefit of this judgment, In this regard, reliance is placed on Vajrapu Sambayya Naidu and ofhers K StateofA.P.andoihersW^ CRI.L.J. 4433 and ffurucharcm Kumar andanother y. State ofRaiaythctn (2003) 2 SCC 698. 18. In the result, the appeal is allowed. Conviction of the appellant -bineshwar as also of co-accused Khilesh Kumar Sahu under Section 489-A, 489-C, 489-D and 120-B of the I.P.C. and the sentences awarded thereunder are set aside, The oppellant-Dineshwar @ Munna and co-accused Khilesh Kumar Sahu are acquitted and shall be set at liberty forthwith, if not required in any other case. Fine paid, if ony, shall be refunded. Dilip Raosaheb Deshmukh Judge 12..05.2006