Calcutta High Court
Madan Lal Sarma vs The State on 13 September, 1989
Equivalent citations: 1990CRILJ215
JUDGMENT Ajit Kumar Sengupta, J.
1. This appeal is directed against the judgment and order dt. June 17, 1982 passed by the learned Sessions Judge, Howrah under Sections 489B and 489C of the Penal Code, convicting and sentencing the appellant to suffer rigorous imprisonment for two years for each of the said charges, which would run concurrently.
2. The prosecution case, in short, is that at about 11 a.m. on 27th May, 1980, Madan Lal Sarma, an employee of Shri Jagadamba Cloth Stores came to the Howrah branch of Bank of Baroda. One Basudeo Ram was receiving the cash at the cash counter of the said bank on that day. The accused handed over a bundle of notes. In that bundle there were one hundred 100-rupee notes, a 10-rupee note and a 5-rupee note. The amount was tendered by the accused in order to get a draft for Rs. 10,000/-.
3. The said Basudeo Ram (PW 2) began counting the notes and at that time found a defective 100-rupee note. He asked the accused to change the defective note. The note, was changed by the accused. He then reported the matter to the Cashier who in turn reported it to the Manager of the bank (PW 1). On hearing the incident, the Manager asked his assistants not to hand over the draft and to delay the matter. The accused was brought to the Chamber of the Manager and the police was informed.
4. The Sub-Inspector Police at Howrah Kotwali P.S. (PW 4) came to the bank. He received the written complaint from the Manager of the bank and started the Howrah P.S. Case No. 37 dt. 27th May, 1980. He seized the alleged forged note in question from the accused and prepared a seizure list. Besides the said 100-rupee note, no other money was found in possession of the accused. The accused was searched once again and the draft and one receipt for the draft were seized. The note in question was then sent to the Indian Security Press, Nasik, for examination and opinion. The note was ultimately despatched to the Bank Note Press where it was examined by the technical officer, Ink Factory, Bank Note Press, Dewas (M.P.) According to the said report the note was allegedly forged. It is made up of two parts neatly pasted together. The lower part is genuine, while the upper part is hand drawn replica of the lower part of the 100-rupee note. On completion of the investigation, the charge sheet was submitted. The accused pleaded not guilty. The learned Judge held that the accused possessed and tendered the note with the knowledge that it was forged and intended to pass it as a genuine note. Consequently, he held the accused guilty under Sections 489B and 489C and the accused was accordingly convicted and sentenced.
5. Under Section 489B, I.P.C. the burden is on the prosecution to prove that at the (SIC) when the accused was passing the note he knew that it was a forged one. The mere possession of it by him does not shift the burden to the accused to prove his innocent possession of the forged note. Similarly, under Section 489C, it is to be proved that the accused intended to use the forged or counterfeit currency note as genuine or it might be used as genuine. It is for the prosecution to prove the circumstances which would irresistibly lead to the conclusion that the accused had the intention to introduce surreptitiously the note on the public. Thus knowledge or reason to believe that the note was forged has to be proved to fix the liability under Sections 489B and 489C.
6. It is not in dispute that the petitioner was in possession of the note alleged to be forged. But the question is whether he knew or he had reasons to believe that the said note was a forged note.
7. The learned Judge held as follows : --
"There is no doubt that the accused received the questioned note along with other notes from the employer. Now, the question comes whether he tried to pass it as a genuine note. This note was given by the accused to the Bank along with other genuine notes to get a draft. Therefore, it is obvious that he tried to use the forged note as genuine note. Therefore, I hold that he possessed and received this note to palm off as a genuine note."
8. In our view the conclusion arrived at by the learned Judge that he possessed and received the note to palm off as genuine note does not follow from the evidence on record. His employer in his evidence said that on 27th May, 1980, being Tuesday, it was a 'Hat' day and he made over Rs. 10,115/- to the appellant to get a draft, consisting of Rs. 10,000/- in a bundle of hundred-rupee notes and one hundred-rupee note and Rs. 15/- in notes separately. The bundle was tied with a girder. The appellant took the bundle as he handed over to him, and did not even count or examine the notes. It cannot, therefore, be said that he had knowledge that the note in question was foged.
9. From the evidence it would appear that the appellant was entrusted by his employer to purchase a bank draft for Rs. 10,000/- and a bundle containing hundred rupee notes was given to him. He tendered the entire bundle at the cash counter of the bank. He was told to change a note which was found to be defective. He accordingly handed over another hundred-rupee note. The receiver in the cash department, who received the cash on the date of occurrence, in his evidence said that he counted the notes and while counting detected a defective note. According to him, it was not a genuine note. He asked the appellant to change the note and accordingly he changed it. He returned the defective note to the accused.
10. Unless it is found that the accused had the knowledge or reason to believe that the said questioned note was a forged one, the question of his palming it off as genuine could not arise.
11. The learned Judge thereafter held that mere possession of the note to palm it off as genuine does not constitute the offence. The learned Judge made a correct approach to the question to be determined. He said that "mere possession of the note and the attempt to palm it off as genuine do not constitute the offence. The most important point is whether the accused had the knowledge or had the belief that the note in question was forged."
12. The only fact from which the learned Judge had drawn the inference that the accused knew that the note was forged is that although the bank charge would not exceed Rs. 15/- for a draft of Rs. 10,000/- he carried Rs. 10,115/-. Had he not known that it was forged, he would not have taken an extra 100/- rupee note. Since he knew that one note in the bundle was forged and when that would be detected, he would change it and for this reason he kept a forged note in his possession. This proves beyond doubt that he had knowledge that the bundle given to the bank contained a forged note."
13. In our view, from the evidence, the conclusion does not follow that the accused had the knowledge or reason to believe that one of the notes in the bundle was forged. Had the accused any knowledge or reason to believe that the note was a forged one, in that event he would not have, after the note was changed, kept such note with him. He would have destroyed the note immediately or thrown it away. He did not do it. He was given the bundle of notes by his employer for buying the bank draft. The receiver of the cash in the bank, because of his day to day dealings in currency notes, might have found it to be defective. Accordingly he returned the note to the accused who in turn handed over another note to him. He was asked to wait and thereafter handed over to the police. The conduct of the accused would clearly demonstrate that he had no knowledge nor had he any reason to believe that the note in question was forged.
14. There is another aspect of the matter which will show that he did not have any knowledge or reason to believe that the defective note was forged. The appellant gave a 100/- Rupee Note when the receiver at the cash counter asked him to change the defective note. The learned Judge recorded the following findings :
"PW 2 was the receiver at the cash counter. He has said that he returned the defective note to the person who tendered it. This witness has not been cross-examined on this point. But I am unable to believe the prosecution case that the note in question was seized from the accused person. Ext. 2/2 is a seizure list of this note. It does not show that it was seized from the accused Madan Lal Sharma. On the other hand, the complaint, Ext. 1 given by the manager to the police officer clearly shows that the note in question was enclosed by the manager with his complaint. It is not the evidence of PW 1 that this statement in the complaint was made inadvertently or incorrectly. Therefore, it cannot be believed that the police officer made the seizure first and then the formal complaint was lodged. There is another circumstance to show that the person of the accused was not searched on the spot. If such search was made in the bank, the draft and the receipt which were subsequently seized from him at the than a would have been seized when the note in question was seized. There would not have been any necessity for preparing two seizure lists at two different times. Therefore, I find that the note in question was not seized from the person of the accused."
15. It is, therefore, evident that the defective note was made over to the receiver at cash counter and it was not with the accused. He could have left the place after he obtained the draft but he was asked to wait. He complied with such direction without knowing what could be the reason. Ultimately he was taken to the Police Station. This conduct is inconsistent with the inference that he had knowledge or reason to believe that the questioned note was defective.
16. The Chemist who examined the questioned note was not examined. His report is as follows :
"Texture/Printing Colours/Register/Numbering/Quality of Printing : Not applicable.
Conclusion : The note under reference was received in a sealed cover and is being sent in a sealed cover. This is a forged note of Rs. 100/- denomination which is made up of two parts neatly pasted together. The lower part is genuine while the upper part is hand drawn replica of the complementary part of Rs. 100/- denomination. This forgery is classified here as : Built-up-note."
It was a defective note. The lower part of the note was genuine. It does not appear that the note was produced before the Trial Court. The learned Judge considering the aforesaid report of the Chemist held that "He has no reason to differ from the opinion given by the expert in his report."
17. Apart from the fact that the knowledge or the intention of the appellant has not been proved, the note must be of such type which in the normal course of dealings, any person of average intelligence would consider from mere look at it to be a forged one.
18. Our attention has been drawn to a decision of the Supreme Court in M. Mammutti v. State of Karnataka reported in AIR 1979 SC 1705 : (1979 Cri LJ 1383). There also the accused was convicted under Sections 489B and 489C of the Penal Code. There the Supreme Court held that unless there was 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 and any presumption that the accused knew that notes in possession were counterfeit cannot be drawn and no conviction under Sections 489B and 489C can be sustained. The Supreme Court thus observed :
"If the notes were of such a nature that mere look at them would convince anybody that it was counterfeit such a presumption could reasonably be drawn. But the difficulty is that 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."
19. In our view the principles laid down by the aforesaid decision will govern this case. There is no evidence that a mere look at the questioned note would convince anyone that it was forged. Prosecution did not lead any evidence to that effect. The learned Judge proceeded solely on the basis of the report of the Chemist and the conduct of the accused. He also did not say that from the very look at the questioned note it was appearing that it was a forged one. In fact the forged note was not produced before Court at all.
20. For the reasons aforesaid this appeal is allowed. The conviction and sentence passed on the appellant is set aside, and the appellant is acquitted of the charges framed against him. The appellant is discharged from the bail-bond.