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1. This appeal has been preferred against the conviction and sentence dated 5-6-1980 passed by learned I Additional Sessions Judge, Nainital in Sessions Trial No: 293 of 1979.

2. The accused-appellant went to the medical store of Jagdish Kumar Agarwal P.W. 3 to purchase medicines. After purchasing one tube he made over one fifty rupees currency note (Ext. 1) to the shopkeeper. The said Jagdish Kumar suspected as regards the genuineness of the said note and he went to the neighbouring shop M/s. Tula Rani Raja Ram and showed it to one Ganeshji of that shop who also confirmed that it was a counterfeit note. Crowd assembled there and thereafter a constable arrived. The accused was found standing there and he was arrested. A case under Sections 420/467, I.P.C. was started and during investigation the case having been established, according to the prosecution, charge-sheet was submitted. Charge under Section 489B and 489C, I.P.C. was framed. Accused pleaded not guilty and trial started. During trial the prosecution has examined six witnesses,out of which P.W. 1 is the expert. He corroborated his report to the effect that it was a counterfeit note. The Upper half is a part of genuine currency note of Rs. 50/-denomjnation while lower half comprises of a crudely drawn replica of the complementary part of the said note. P.W. 2 Virendra Kumar Agarwal is the brother of the informant, who has corroborated the prosecution story stating that his brother Jagdish Kumar Agarwal went to him and asked if the currency, note which was with him was genuine., He was not sure and then he and Jagdish Kumar Agarwal went to the shop of Tula Ram Raja Ram. In cross-examination he has stated that after both the brothers inspected the note Jagdish Kumar Agarwal went to the shop of Raja Ram and when he also went there and at that time he found the accused standing in his, shop. P.W. 3 Jagdish Kumar has corroborated the story depicted in the first information report. P.W. 4 Ganeshi Lal also corroborated the statement of P.W. 2 and P.W. 3 that they brought the note to him to verify whether it was genuine or not. P.W. 5 is the Constable, who went to the place of the occurrence after seeing the crowd. He seized the currency note and took the accused to the police station. P.W. 6 is the Investigating Officer. In his statement under Section 313, Cr. P.C. the accused admitted the possession of the note but expressed innocence. After considering the evidence on record the learned Judge convicted the accused under Sections 489B and 489C and sentenced him to suffer R.I. for one year and a fine of Rs. 200/- for the offence under Section 489B and one year for the offence under Section 489C, I.P.C.

Under Section 489B, I.P.C. the burden is on the prosecution to prove "that at the time 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 Ss, 489-B and 489-C.

14. Sri Kamal Krishna has also submitted that in cross-examination under Section 313, Cr. P.C. no question was put to the accused if he had knowledge about the forged currency notes Found from his possession. He has submitted that knowledge being prime factor in establishing the guilt of the accused under Sections 489B and 489C it should be put to him in his examination under Section 313, Cr. P.C. and when not done learned Judge was not right in drawing conclusion that he had such knowledge. No doubt, the said question is vital one and should have been put to the accused and without it this case also suffers from the said infirmity.

15. Considering the above circumstances I find that the essential ingredient of Sections 489B and 489C since missing it cannot be held to be sufficient to prove the charge.

16. The appeal is, therefore, allowed. Conviction and sentence passed by the learned Judge are hereby set aside. The accused is acquitted to the charge under Sections 489B and 489C, I.P.C. He is on bail. His bail bond is discharged. He need not surrender in connection with this case.