Gujarat High Court
Bharatbhai Jokhanbhai Mukhiya vs State Of Gujarat on 16 April, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/475/2013 JUDGMENT DATED: 16/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 475 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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BHARATBHAI JOKHANBHAI MUKHIYA & ANR.
Versus
STATE OF GUJARAT
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Appearance:
MS SHEEJA G NAYAR(5458) for the Appellant(s) No. 1,2
MS CM SHAH APP for the Respondent
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 16/04/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This criminal appeal preferred by the appellants-
convict herein under Section 374(2) of the Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 15.03.2013 passed by learned Sessions Judge, Surendranagar in Sessions Page 1 of 24 Uploaded by P.S. JOSHI(HC00177) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 22:34:39 IST 2025 NEUTRAL CITATION R/CR.A/475/2013 JUDGMENT DATED: 16/04/2025 undefined Case No. 03 of 2013 by which the appellants have been convicted under Sections 489B, 489C r/w. Section 114 of the IPC and sentenced as per tabulated:
Conviction under Punishment Fine In default of fne Section Section 489B read Life Imprisonment Rs.5000/- RI for one year with Section 114 of IPC Section 489C read RI for seven years Rs.3000/- RI for six months with Section 114 of IPC Trial court ordered that the sentences imposed on the appellants shall run concurrently.
2. Case of the prosecution, leading to conviction of the appellants Bharatbhai Mukhiya and Santosh Mukhiya is as follows:
2.1 PW.10-Jagdish Raol, Police Inspector, S.O.G., Surendranagar received a secret information on 10.10.2012 that the accused Bharat Mukhiya and Santosh Mukhiya are involved in trafcking of counterfeit currency notes and are coming at Surendranagar Sessions Court for getting bail of accused Anish Jag and others who had been arrested in connection with the ofence of fake currency notes registered with Dhrangadhra Police Station (I-C.R Page 2 of 24 Uploaded by P.S. JOSHI(HC00177) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 22:34:39 IST 2025 NEUTRAL CITATION R/CR.A/475/2013 JUDGMENT DATED: 16/04/2025 undefined No.30 of 2012 for the ofence punishable under Sections 489A, 489B, 489C r/w. Section 114 of the IPC).
2.2 The plan for raid was conducted. The appellants-
accused were earlier tenant of one Mr. Bhavesh Mangabhai(PW.8) and in order to identify the accused, the PW.8 was also part of the raiding party and also called the two independent panch witnesses and after informing them about the procedure of raid, PW.10 and other ofcials of S.O.G., Surendranagar keep a vigeal nearby the court premises, Surendranagar.
2.3 During the raid proceedings, at about 11:15 a.m., PW.10 and others saw 3 persons who were coming from the Collector Ofce Road and on seeing the persons, PW.8, allegedly identifed the appellants. They were restrained by the police and made a preliminary inquiry about their names and other things. On inquiry, they disclosed their names as Bharat Mukhiya, Santosh Lalji Mukhiya and Prabhu Ramrai, residents of State: Bihar.
2.4 PW.10 in the presence of two independent panchas, conducted a search of Bharat Mukhiya, during which 15 counterfeit currency notes of Rs.1000/- denomination each were recovered from his pocket. On the personal search of Santosh Mukhiya, 10 Page 3 of 24 Uploaded by P.S. JOSHI(HC00177) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 22:34:39 IST 2025 NEUTRAL CITATION R/CR.A/475/2013 JUDGMENT DATED: 16/04/2025 undefined counterfeit notes of Rs.500/- denomination each recovered from his pocket, whereas, from the search of Prabhu Ramrai, no any counterfeit notes were found. The examination of the notes was being done by Manager, State Bank of Saurashtra (PW.7) and Mobile FSL Ofcer, Mr. R.C. Parmar. They had examined the fake currency notes and inspected the paper quality, colour, water mark, security thread with the help of ultraviolet lights and the said currency notes were recovered and seized by PW.10 and on the basis of complaint disclosed by PW.1- Abdul Makrani, Head Constable, the ofence came to be registered as I-C.R. No.181 of 2012 under Sections 489(A), 489(B) and 489(C) r/w. Section 114 of the IPC against the appellants. They had been apprehended by the police. The investigation was entrusted to PW.10 - Mr. Raol. During the course of investigation, it revealed that, the accused - appellants brought fake Indian currency notes from Bihar and Nepal with the aid of accused shown in column no.2 of chargesheet and uses the said currency notes as genuine and put into circulation in the District: Surendranagar and received genuine currency notes. PW.10 sent the seized currency notes to the FSL and the Expert of the FSL opined that, the seized currency notes were not genuine. PW.10 recorded the statements of material witnesses, took visit of residential premises at Halvad where the Page 4 of 24 Uploaded by P.S. JOSHI(HC00177) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 22:34:39 IST 2025 NEUTRAL CITATION R/CR.A/475/2013 JUDGMENT DATED: 16/04/2025 undefined accused stayed. At the end of investigation, the I.O. found sufcient material for the ofence punishable under Sections 489(A), (B) and (C) r/w. Section 114 of the IPC and fled chargesheet before the Jurisdictional Magisterial Court and same was committed to the Court of Sessions, Surendranagar which culminated into Sessions Case No.03 of 2013.
3. After due framing of charge and upon accused not pleading guilty, the trial commenced before the Sessions Judge, Surendranagar. In order to prove the charge, the prosecution examined 10 witnesses and exhibited 18 documents:
Oral Evidence :
PW-1 Exh.9 Abdulbhai Lalamahmad Makrani, Ass. Sub-Inspector, complainant PW-2 Exh.11 Dineshbhai Natwarlal Charola, Panch Witness PW-3 Exh.13 Rajeshbhai Lalbhai Rathod, Panch Witness PW-4 Exh.16 Hareshbhai Valjibhai Rangadiya, Panch Witness PW-5 Exh.17 Ranchhodbhai Devshibhai bharwad, Head Constable PW-6 Exh.18 Karamshubhai Popatbhai Shapra, Head Constable PW-7 Exh.19 Bhargavbhai Kanaiyalal Dave PW-8 Exh.22 Bhaveshbhai Mangabhai Mal PW-9 Exh.23 Harishchandrasinh Dharmendrasinh Rana, Head Constable PW-10 Exh.26 J.P. Raol, Investigating Officer Documentary Evidence :
Exh.10 Complaint
Exh.12 Panchnama of seizure of fake currency notes from accused
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NEUTRAL CITATION
R/CR.A/475/2013 JUDGMENT DATED: 16/04/2025
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Exh.,14 Panchnama of place pointed out by accused Bharat Jokhan Mukhiya
Exh.15 Panchnama of place of pointed out by accused Santosh Lalji Mukhiya
Exh. 20 Police Yadi to General Manager, SBI
Exh.21 Opinion of Deputy Manager of SBI
Exh.24 Copy of extract of Station Diary
Exh.26 Copy of report for registration of complaint in I-CR No. 30/12 and copy of
complaint
Exh.27 Copy of supplementary chargesheet in I.CR No. 30/12
Exh.28 Copy of chargesheet against juvenile accused in I.CR No. 30/12
Exh.29 Copy of complaint in I.CR No. 43/12
Exh. 30 Copy of chargesheet against accused in I.CR. No. 43/12
Exh.31 List of accused in I.CR. No. 43/12
Exh.32 Report of FSL mobile van
Exh.33 Letter regarding sending muddamal to FSL
Exh.34 Receipt by FSL regarding receiving muddamal
Exh.35 FSL report
Exh.36 CD
4. After closure of the prosecution evidence, the
appellants was questioned under Section 313 Cr.P.C. to which they stated that, they have been falsely implicated in the ofence and not committed any ofence as alleged.
5. Though opportunity was extended, no oral evidence being adduced from the side of the appellants-
accused.
6. The learned Sessions Judge after hearing the parties and upon appreciation of the evidence adduced by the prosecution, found the appellants-accused guilty and Page 6 of 24 Uploaded by P.S. JOSHI(HC00177) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 22:34:39 IST 2025 NEUTRAL CITATION R/CR.A/475/2013 JUDGMENT DATED: 16/04/2025 undefined consequently, they have been convicted under Sections 489B and 489C r/w. Section 114 of the IPC.
7. We have heard learned counsel Ms. Sheeja Nayar and Ms. C.M. Shah, learned APP for the respective parties.
8. Ms. Nayar, learned counsel for the appellants while assailing the judgment of conviction and order of sentence, raised the following contentions:
8.1 The judgment of conviction and order of sentence are unjust, improper, based on conjunctures and surmises and as such, is not sustainable under law. That, the conviction is based on the evidence of police ofcials who had intercepted the accused and according to their version, the fake currency notes found from them. The place where the raid conducted was crowded area and independent witness could be available for the police and despite of this, no any independent witness being examined for proving the recovery of counterfeit notes. The panchas of the recovery are not trustworthy as at the instance of police, they had agreed to witness the incident. The two panchas of recovery were also witness of ofence registered with Dhrangadhra Police Station wherein PW.10 was the raiding ofcer. Thus, the process of recovery does not inspire confdence and therefore, the defence of false implication cannot be ruled out.Page 7 of 24 Uploaded by P.S. JOSHI(HC00177) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 22:34:39 IST 2025
NEUTRAL CITATION R/CR.A/475/2013 JUDGMENT DATED: 16/04/2025 undefined 8.2 That, no ofence under Section 489(B) and 489(C) is established because mere possession of counterfeit currency notes would not constitute an ofence under Sections 489(B) and 489(C) of the IPC. That, there is no evidence to prove the facts that the appellants in any manner were found selling, buying, or receiving or otherwise trafcking in or using as genuine forged counterfeit notes knowing the same or believing it to be fake and therefore, no ofence either Section 489(B) or (C) is established, as the prosecution failed to prove that, the accused had knowledge that, the notes were fake and therefore, in absence of mens rea on the part of the accused, the ofence as alleged cannot be believed or established. In this regard, the reference is made to the case of Umashanker vs. State of Chhatisgarh (2001) 9 SCC 642. In this case, the Hon'ble Supreme Court has observed as under:
"A perusal of the provisions, extracted above, shows that mens rea of ofences 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 tranfcking in or using as genuine forged or counterfeit currency-notes or bank-notes, is not enough to constitute ofence 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 sufcient 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 Page 8 of 24 Uploaded by P.S. JOSHI(HC00177) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 22:34:39 IST 2025 NEUTRAL CITATION R/CR.A/475/2013 JUDGMENT DATED: 16/04/2025 undefined the requisite mens rea. The High Court, however, completely missed this aspect. The learned trial judge on the basis of the evidence of P.W.2, P.W.4 and P.W. 7 that they were able to make out that currency note alleged to have been given to P.W. 4, was fake "presumed" such a mens rea. On the date of the incident the appellant was said to be 18 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 specifc question with regard to the currency-notes being fake or counterfeit was put to the appellant in his examination under Section 313 of 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 of I.P.C. and acquit him of the said charged [see : M. Mammutti v. State of Karnataka, AIR (1979) SC 1705."
9. In the aforesaid circumstances as referred above, learned counsel Ms. Sheeja Nayar prayed that, the prosecution failed to prove its case beyond reasonable doubt and as such, the judgment is liable to be set aside as the fndings of the trial court are perverse and against the law and conviction be set aside and the appellants may be acquitted of all the charges.
10. On the other hand, Ms. C.M. Shah, learned APP vehemently opposed the submissions and submitted that, there is sufcient oral and documentary evidence to prove that the accused have committed the ofences under Sections 489-B and 489-C of the IPC. She further submitted that the trial court has considered the entire evidence in a proper perspective and there is nothing to interfere with the conviction Page 9 of 24 Uploaded by P.S. JOSHI(HC00177) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 22:34:39 IST 2025 NEUTRAL CITATION R/CR.A/475/2013 JUDGMENT DATED: 16/04/2025 undefined and sentence awarded by the trial court. The counterfeit notes were found from possession of the appellants-accused and there is no valid explanation that how the accused obtained the currency notes and therefore, the non-explanation in this regard would be sufcient to presume that they received from the persons named in the chargesheet case papers and as such, the provisions of Section 489-B and C would be attracted. In such circumstances, learned trial court was justifed in convicting the appellants and thus, learned APP prays that there being no merits in the appeal and same may be dismissed.
11. We have carefully considered the submissions and perused the case records.
12. Before we proceed to examine the issue, it is necessary to discuss the material evidence adduced by the prosecution. In order to prove its case, the prosecution relied upon the evidence of 10 witnesses. Out of 10 witnesses, the material witnesses are PW.1- complainant - A.L. Makrani, PW.7 - D.K. Dave, PW.8 - Bhavesh Mal, and PW.10 - J.P. Raol, Investigating Ofcer. The seizure panchnama (Exh.12) wherein the independent witnesses namely PW.2 - Dinesh Natwarlal and PW.3 - Rajesh Rathod were cited as panch witnesses.
Page 10 of 24 Uploaded by P.S. JOSHI(HC00177) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 22:34:39 IST 2025NEUTRAL CITATION R/CR.A/475/2013 JUDGMENT DATED: 16/04/2025 undefined (A) PW.1 - complainant - Abdul Makrani being a member of raiding party, stated in his testimony that, on 10.10.2012, when he was with PW.10 at the S.O.G. Ofce, Surendranagar, the secret information received by the PW.10 that the accused are in business of circulation of counterfeit notes and they are coming at Surendranagar Sessions Court to meet the accused Anish Jag who was involved in the ofence of counterfeit notes allegedly registered with Dhrangadhra Police Station. The witness has further stated that PW.10 had decided to conduct the raid and accordingly, in the presence of two witnesses and other police ofcials, had gone nearby the place of District Court, Surendranagar. The witness has further stated that PW.8 Bhavesh was known to the accused as he rented his house to them and for identifcation, he was also part of the raiding party. The witness has further stated that, at about 11:15 a.m., the PW.8 identifed the accused who had come from the Collector Ofce Road. The witness has further stated that they restrained them and upon search in presence of panchas, the counterfeit notes of Rs.1000/- denomination found from the possession of accused Bharat Mukhiya and counterfeit notes of Page 11 of 24 Uploaded by P.S. JOSHI(HC00177) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 22:34:39 IST 2025 NEUTRAL CITATION R/CR.A/475/2013 JUDGMENT DATED: 16/04/2025 undefined Rs.500/- were found from the possession of Santosh Mukhiya, whereas the third person Parbhu Ramrai did not have found any counterfeit notes from his possession. The witness has further stated that the notes were examined by the Manager of State Bank of Saurashtra - PW.7 Bhargav Dave and Mr. Parmar
- the ofcer of Mobile FSL and according to their preliminary opinion, the notes were fake. The witness identifed the accused in the court and further stated that, he disclosed his FIR against the accused. in the cross-examination, technical questions were being asked which the witness could not give its proper answer.
(B) The panch witness of recovery panchnama (Exh.12) PW.2 - Dinesh Charola has been examined by the prosecution. In his testimony, the witness has stated that, on 10.10.2012, he was passing through the court compound by driving his auto rickshaw and at that time, the S.O.G. Police restrained him and informed about the secret information. The witness has further stated that, one Daud Bhatti was also restrained by the police. The witness has stated that in the presence of him as well as Daud Bhatti, the accused were searched by police and upon his Page 12 of 24 Uploaded by P.S. JOSHI(HC00177) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 22:34:39 IST 2025 NEUTRAL CITATION R/CR.A/475/2013 JUDGMENT DATED: 16/04/2025 undefined search, the counterfeit notes were found from them. In the cross-examination, the witness has confessed that in so many cases, he had been cited as a witness by the police and in earlier case registered with Dhrangadhra Police Station, he was also cited as a panch witness.
(C) PW.7 - Bhargav Dave was examined to prove that the notes found were fake. The witness being a Manager of State Bank of Saurashtra, reached at the spot as he had been called there by the police and after examination through UV Lamp, he found that, the notes found were counterfeit currency notes. The witness has also made a reference of FSL Ofcer who had also made examination of the notes.
(D) PW.8 - Bhavesh Mal was examined to prove that, the accused prior to the ofence, had lived in his house as tenants at Village: Halvad.
(E) PW.10 - Jagdish Raol, the witness who at relevant time, was on duty as Police Inspector with the S.O.G., Surendranagar and he received information on 10.10.2012. The witness has stated on the line of PW.1 and therefore, so far as Chief Examination part is concerned, there is no need to refer the entire evidence. In the cross-
Page 13 of 24 Uploaded by P.S. JOSHI(HC00177) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 22:34:39 IST 2025NEUTRAL CITATION R/CR.A/475/2013 JUDGMENT DATED: 16/04/2025 undefined examination, the I.O. has admitted the facts that, he had investigated the case registered with Dhrangadhra Police Station (I-C.R. No.30 of 2012) and during the investigation of said case, he did not have found the counterfeit notes from the appellants-accused. The witness has further stated that, prior to the raid, he did not have receive any complaint about the alleged circulation of counterfeit notes by the accused. The witness has stated that during the course of investigation, he had not gone to the native of the accused and other places. The witness has admitted that, no evidence found against the accused to prove that, they are circulating the counterfeit notes in the market. The witness has fairly conceded that, there is no evidence that the accused had used counterfeit notes as genuine and purchased the materials from the market and received genuine notes.
13. On the basis of aforesaid evidence, it is now to be seen whether the accused committed the ofence under Sections 489-B and C of the Indian Penal Code.
14. Section 489-B - using as genuine, forged or counterfeit currency notes or bank notes - says that whoever sells to, or buys or receives from, any other person, or otherwise trafcs in or uses as genuine, any Page 14 of 24 Uploaded by P.S. JOSHI(HC00177) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 22:34:39 IST 2025 NEUTRAL CITATION R/CR.A/475/2013 JUDGMENT DATED: 16/04/2025 undefined forged or counterfeit currency note or bank note, knowing or having reason to believe the same to be forged or counterfeit shall be punished with life or with imprisonment of either description for a term which may extend to 10 years, and shall also be fne.
15. A bare reading of Section 489-B would provides that, to bring home an ofence under this section, a prosecution is to prove that, (a) the currency note was forged or counterfeit, (b) that the accused sold to or receive from any other person or trafcked in or use as a genuine the aforesaid note, (c) when the accused did so, he had knowledge or reason to believe about its being forged or counterfeit. Thus, in order to sustain conviction, the prosecution has not only prove that the possession of the counterfeit note but also prove that, the accused having reason to believe that the notes to be forged or counterfeit.
16. Reverting to the facts of present case, the point is whether the accused were in possession of counterfeit notes knowing or having reason to believe that same is forged or counterfeit notes and intended to use the same for circulation in the market. On perusal of the evidence, nothing found the I.O. - PW.10 admitted the facts that, during the course of investigation, no any evidence being found that, the accused had tried to encash the said counterfeit notes in the market, nor, Page 15 of 24 Uploaded by P.S. JOSHI(HC00177) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 22:34:39 IST 2025 NEUTRAL CITATION R/CR.A/475/2013 JUDGMENT DATED: 16/04/2025 undefined he received any complaint from anybody. The I.O. in his cross-examination, admitted that, he had not gone to the native of the accused to verify the source of counterfeit notes. He had also admitted that, total 3 cases were being registered against the diferent accused for the same charge who had lived in the rented premise of PW.8 - Bhaveshbhai at Village:
Halvad and during the investigation of frst ofence registered with Dhrangadhra Police Station, the accused were not found with counterfeit notes. In that view of the matter, as far as charges of Section 489-B of the IPC is concerned, the prosecution failed to produce any material regarding the selling or receiving the counterfeit notes from the persons who either belongs to State Bihar or other country or trafcked in or use as genuine the said counterfeit notes by the accused. When there is no evidence to show that the accused sells or buys or receives the said notes from any other person or otherwise trafcs in or uses as genuine, knowing or having reason to believe the same to be forged or counterfeit no ofence under Section 489-B is made out. In our opinion, the prosecution apparently, thus, has not succeeded in proving the ofence under Section 489-B of the IPC.Page 16 of 24 Uploaded by P.S. JOSHI(HC00177) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 22:34:39 IST 2025
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17. So far as ofence under Section 489-C is concerned, whether it is attracted in this case or not. For easy reference, it will be benefcial to extract Section 489-C which reads thus:
Possession of forged or counterfeit currency notes or bank notes, "whoever has in h is possession any forged or counterfeit currency note or bank note, knowing or having reasons to believe the same to be forged or counterfeit and intending to use the same as genuine or that, it may be used as genuine shall be punish with imprisonment of either description for a term which may extend to 7 years or with fne or with both."
18. A bare reading of the section provides that, the ingredients which are required to constitute under Section 489(C) are as follows :
(i) Note in question is currency note.
(ii) Such note was forged or counterfeited;
(iii) The accused was in possession of the currency note;
(iv) The accused intended to use the same as genuine;Page 17 of 24 Uploaded by P.S. JOSHI(HC00177) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 22:34:39 IST 2025
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(v) The accused knew or had reason to believe note to be forged;
19. In nutshell, Section 498(C) deals with the possession of forged or counterfeit notes and it makes possession of forged or counterfeit notes punishable. Possession and knowledge that the currency notes were counterfeited note are the necessary ingredients to constitute the ofence.
20. In the case on hand, the evidence of police ofcials including the I.O. PW-10, would show that, on 10.10.2012, the accused appellants while on the way to meet their colleague who were arrested in the ofence of counterfeit notes allegedly registered against them with the Dhangadhra Police Station, on the specifc input when they restrained by the police and upon their search, the counterfeit notes were found from their possession. In order to determine, whether it is counterfeit notes or not, the police called two experts namely PW-7 Bhargav Dave and FSL Ofcer Mr. Parmar. Both the ofcers applying the methodology for the determination and examination of fake currency notes, they opined that the notes were forged. The experts examined the paper quality, print quality of the notes and so far security features is concerned, they noted the watermark, security Page 18 of 24 Uploaded by P.S. JOSHI(HC00177) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 22:34:39 IST 2025 NEUTRAL CITATION R/CR.A/475/2013 JUDGMENT DATED: 16/04/2025 undefined trade and with the help of detection device like UV lamp, they expressed their opinion on the spot. In such circumstances, we are of the considered opined that the appellants accused were in possession of the counterfeit notes. The issue is whether the possession of the notes by the accused intended to use the same as genuine and whether the accused knew or had reason to believe that the notes to be forged. So far as explanation of the accused sought under Section 313 of the Cr.P.C., on the aspect of their possession of the notes, they pleaded their innocence and false implication. On this aspect, learned APP contended that, in absence of explanation of the accused in this regard would be sufcient to establish that, the possession of this fake currency notes were consciously with the accused and therefore, the conviction under Section 489(C) rendered by the court below is justifed. On the other hand, the defense counsel has submitted that, there is no evidence to show that the possession with knowledge that it is counterfeit notes and having reason to believe that, same to be counterfeit notes and intended to be used same as genuine.
21. Reverting to the facts of the present case, PW-10 IO admitted that, during the course of investigation, he could not found the source of counterfeit notes nor did Page 19 of 24 Uploaded by P.S. JOSHI(HC00177) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 22:34:39 IST 2025 NEUTRAL CITATION R/CR.A/475/2013 JUDGMENT DATED: 16/04/2025 undefined further investigation on this aspect by him or anybody. It is relevant to note that, this is the third ofence registered by PW-10 under Section 489(A)(B)(C) of the IPC. The investigating ofcer, PW-10 admitted that, during the course of investigation of earlier two cases, he did not fnd any incriminating materials from the present appellants. We take the notice of the fact that, the accused and other their companion were staying at the rooms of PW-8 at village: Hadvad, Surendranagar and ofence for possessing the counterfeit notes prior to 10 days of this ofence came to be registered against one Anishkumar and Jagprabhu Mukhiya. In such circumstances, once the colleague of the accused, arrested in the ofence of possessing counterfeit notes, then, again entered into the same work by the appellants would not be digestible. The I.O. straight-way, arrested the accused and the manner in which he had called PW-8 Bhavesh, would raise the inference that the appellants had been trapped by the police. In such circumstances, it is mandatory to prove that the appellants have the requisite mens-rea to commit the ofence. It is relevant to note that after recording the evidence of the prosecution, the Court failed to ask a specifc question to the accused in order to fnd out whether the accused knew that notes were such of a nature i.e. counterfeit. In this context, we may proftably refer Page 20 of 24 Uploaded by P.S. JOSHI(HC00177) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 22:34:39 IST 2025 NEUTRAL CITATION R/CR.A/475/2013 JUDGMENT DATED: 16/04/2025 undefined the case of M. Mammutti Vs. State of Karnataka (AIR 1979 SC 1705) wherein, the Supreme Court made the following observations :
"The appellant has been has been convicted in this appeal under Sections 489-B and 489-C and has been sentenced to R. I. for one year and to R. I. for six months respectively and fne of Rs. 500/-. The sentences have been directed to run concurrently. The learned Counsel appearing for the appellant has stated that it is true that the appellant was found in possession of a counterfeit two rupee notes and the accused handed over the note to a friend to purchase a ticket for a circus show. The booking clerk on seeing the note got suspicious. He immediately informed the Sub- Inspector of Police and on search of the appellant 99 two rupee notes were recovered. The appellant in his statement under Section 342 stated that two days ago he sold three quintals of tamarind fruits to a person whom he did not know and that person gave him a sum of Rs. 390/-. These currency notes have been given to him by the purchaser. He also said that he did not know that these currency notes were counterfeit and he came to know that these currency notes were counterfeit and he came to know of it for the, frst time whom he was interrogated by the police. 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. Nor was any such question put to the accused under Section 342 Cr. PC. The High Court has afrmed the judgment of the learned Sessions Judge on the ground that in his statement under Section 342 made before the committing Court the accused has made a statement diferent from that made in the Page 21 of 24 Uploaded by P.S. JOSHI(HC00177) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 22:34:39 IST 2025 NEUTRAL CITATION R/CR.A/475/2013 JUDGMENT DATED: 16/04/2025 undefined Sessions Court and therefore the appellant had reason to believe that notes in his possession were counterfeit notes. Here the High Court is not correct because even in the statement before the Committing Court in Ex. P. 13 which appears at P. 154 of the paper book, the appellant has stuck to the same statement which he made before the Sessions Court that he had sold three quintals of tamarind fruits and from the purchaser he received a sum of Rs. 390/- in two rupee notes. We are not able to fnd any inconsistency between the answer given by the accused in his statement under Section 342 before the Sessions Judge and that before the Committing Court specially on the point that the appellant had the knowledge or reason to believe that the notes were counterfeit. Mr. Nettar submitted that once the appellant is found in possession of counterfeit notes, he must be presumed to know that the notes ate counterfeit. If the notes were of such a nature that mere look at them would convince anybody that it was counterfeit such a presumption could reasonable be drawn. But the difculty is that the prosecution has not put any specifc question to the appellant in order to fnd 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. For these reasons, therefore, the appeal is allowed, conviction and sentences passed on the appellant are set aside, and the appellant is acquitted of the charges framed against him."
22. In light of the aforementioned observation of the Supreme Court and considering the peculiar facts of the present case, the prosecution failed to adduce Page 22 of 24 Uploaded by P.S. JOSHI(HC00177) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 22:34:39 IST 2025 NEUTRAL CITATION R/CR.A/475/2013 JUDGMENT DATED: 16/04/2025 undefined sufcient evidence that the accused found with the possession of counterfeit notes intended to use the same as genuine and at relevant time, they knew that the notes were counterfeit. In addition to that, in 313 statement, nothing being asked in this regard so as to get further confrmation that, the notes were intended to use as genuine by the accused and they were knowing that the same were fake notes. In such circumstances, the essential ingredients "mens-rea"
on the part of the accused, is not established, as nothing on record to show that the accused had the requisite mens-rea and therefore, the non-explanation for possessing the notes would not be a strong circumstances to infer that the accused were in possession with knowledge that same were counterfeit notes.
23. For the reasons recorded, we are of the considered opinion that the court below while arriving at fnding of guilt, failed to appreciate the evidence in its true prospective and therefore, prosecution has not been able to prove the charges under Sections 489(B) and 489(C) of the IPC. The appellants are acquitted of the charges under Sections 489(B) and 489(C) and their conviction and sentence dated 15.03.2013 passed in Sessions Case No. 3 of 2013 by the Sessions Judge, Surendranagar are hereby quashed and set aside.
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24. Accordingly, present appeal is allowed in the aforesaid terms. The Registry is directed to communicate this order to the Court below and send the R&P forthwith. The fne amount, if deposited be refunded to the accused.
(ILESH J. VORA,J) (SANDEEP N. BHATT,J) P.S. JOSHI Page 24 of 24 Uploaded by P.S. JOSHI(HC00177) on Wed Apr 16 2025 Downloaded on : Wed Apr 16 22:34:39 IST 2025