PETITIONER:
STATE OF KERALA
Vs.
RESPONDENT:
MATHAl VERGHESE & ORS.
DATE OF JUDGMENT19/11/1986
BENCH:
THAKKAR, M.P. (J)
BENCH:
THAKKAR, M.P. (J)
NATRAJAN, S. (J)
CITATION:
1987 AIR 33 1987 SCR (1) 317
1986 SCC (4) 746 JT 1986 928
1986 SCALE (2)851
ACT:
Indian Penal Code, ss. 489A to 489E--Whether applicable
to "currency notes" other than "Indian Currency Notes
"---Counterfeiting of or possession of counterfeit dollar
bills or dollar notes-- Whether offence under Indian Law.
Indian Paper Currency Act 1822, s.2--'Currency Note
'--Definition-Whether can be imported into ss. 489A--489E,
I.P.C.
Words & Phrases--'Currency note '--Meaning of..
HEADNOTE:
The respondents were charged with offences punishable
under s. 120B, 489A, 489C and s420 read with ss. 511 and 34
IPC for forging and counterfeiting American dollar notes of
20 dollar denomination, by printing 2000 such notes. Re-
spondents 1 and 2 were further alleged to have been in
possession of 148 forged currency notes knowing the same to
be forged, with intent to use these forged notes as genuine.
The accused-respondents contended before the Sessions
Court that a charge under s. 489A and 489C of the IPC could
be lawfully levelled only in the case of counterfeiting of
'Indian' currency notes and not in the case of counterfeit-
ing of 'foreign' currency notes. The Sessions Court upheld
the aforesaid contention and discharged the accused-respond-
ents. The High Court also confirmed the aforesaid order of
discharge.
Allowing the appeal by appellant-State and remanding the
case to the trial court,
HELD: 1. The High Court was wrong in holding that ss.
489A to 489E are not applicable to currency notes other than
Indian currency notes and that counterfeiting of or possess-
ing of counterfeit dollar bills or dollar notes is not an
offence under the Indian Law. Therefore, the judgment and
order of discharge rendered by the High Court are reversed
and set aside. The matter will now go back to the trial
court for proceeding further in accordance with law. [325
F-326 C]
2.1 An analysis of s. 489A reveals that: (i) counterfeiting
'any' currency
318
note or bank-note is an offence; (ii)knowingly performing
any part of the process of counterfeiting any currency note
or bank-note is also an offence; and (iii) the prohibition
against counterfeiting or performing such process applies to
currency notes as also to bank-notes as defined by the
explanation to s. 489A. And inasmuch as the aforesaid ex-
pression interalia means any engagement for the payment of
money to the bearer issued by or under the authority of any
State or Sovereign power provided it is intended to be used
as equivalent to or substitute for money the prohibition
also extends to counterfeiting etc. of currency notes of any
other sovereign power. [321 D-G]
2.2 The expression 'currency note' under s. 489A is
large enough in its amplitude to cover the currency notes of
'any' country. When the legislature does not speak of cur-
rency notes of India the court interpreting the relevant
provision of law cannot substitute the expression 'Indian
currency note' in place of the expression 'currency note'.
When the expression 'currency note' is interpreted to mean
only 'Indian currency note; the width of the expression is
being narrowed down or cut down. [322 A-C]
2.3 The court can merely interpret the section, it
cannot re-write, recast or redesign the section. In inter-
preting the provision the exercise undertaken by the court
is to make explicit the intention of the legislature which
enacted the legislature. It is not for the court to reframe
the legislation for the very good reason that the powers to
'legislate' have not been conferred on the court. When the
court shrinks the content of the expression 'currency note',
to make it referable to only 'Indian currency note', it is
defeating the intention of the legislature partly inasmuch
as the court makes it lawful to counterfeit notes other than
Indian currency notes. The manifest purpose of the provision
is that the citizens should be protected from being deceived
or cheated. The citizens deal with and transact business
with each other through the medium of currency. It is incon-
ceivable why the legislature should be anxious to protect
citizens from being deceived or cheated only in respect of
Indian currency notes and not in respect of currency notes
issued by other sovereign powers. [322 B--322 F]
2.4 To read the expression 'any currency note' to mean
and refer only to 'Indian currency note'is to misread the
expression by doing violence both to the letter and spirit
thereof unmindful of the fact that the former expression in
its plentitude covers the currency notes issued by any and
every country of the world whereas the latter is applicable
to only one of the countries in the world. [325 D]
3. The expression 'bank note' employed in ss. 489A to
489E of IPC takes within its sweep an engagement for the
payment of money issued by or under
319
the authority of any State or Sovereign power as is evident
from the analysis of s. 489A. It would therefore cover a
dollar bill or dollar note as well. A dollar bill issued by
the Soveriegn Government of United States of America would
ipsofacto be covered by the expression 'banknote'. And as
revealed by the analysis made earlier, the prohibition would
apply to the counterfeiting of a Bank-note or being in
possession of a counterfeit Bank-note as well. It would,
therefore, in any case, be an offence tO counterfeit a
dollar bill or to be in possession of a counterfeit dollar
bill. [323 C-D]
4. The definition contained in s. 2 of the Indian Paper
Currency Act is only for the purpose of that particular Act
and it cannot be imported into s. 489A to 489E of the Indian
Penal Code. [325 E]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 26 of
1978
From the Judgement and Order dated 17.11.1976 of the
Kerala High Court in Criminal Revision Petition No. 263 of
1975.
Chettur Sankaran Nair and E.M.S. Anam for the Appellant.
Nemo for the Respondents.
The Judgment of the Court was delivered by
THAKKAR, J. Counterfeiters all over the world must be
singing in ecstasy: “if there is heaven on earth, it is
here, here, here’, for, according to the KeraLa High Court1,
Indian law does not make counterfeiting of currency notes of
any country in the world, other than that of India, an
offence.
The High Court has persuaded itself by a process of
judicial activism in reverse gear, that making of such
counterfeit notes is not an offence under Section 489A of
the Indian an Penal Code (I.P.C.) and that having in posses-
sion such counterfeit currency notes is not an offence under
Section 489C of the I.P.C. Such a view has been taken even
though there is nothing in the language of these sections to
warrant Such an interpretation as will become evident
presently.
1. Judgment and Order rendered by the Kerala High Court in
Cr.R.P. 263 of 1975 on November 17, 1976, giving rise to the
present appeal by certificate of fitness under Article
134(1)(c) of the Constitution of India.
320
Facts: The six respondents herein were charged with
offences punishable under Sections 120B, 489A, 489B and
Section 420 read with Sections 511 and 34 IPC. The prosecu-
tion case against them was that in furtherance of a conspir-
acy entered into by accused nos. 1 to 4 to forge and coun-
terfeit American dollar notes of 20 dollar denomination,
they indulged in counterfeiting by printing 2000 such notes.
Respondents 1 and 2 were further alleged to have been in
possession of 148 forged currency notes knowing the same to
be forged, with intent to use these forged notes as genuine.
The respondents were committed by the Magistrate to stand
their trial before the Sessions Court, for offences, under
Sections 120-B, 487A and 489C read with Sections 511 and 34
IPC. It was contended by the respondents-accused before the
Sessions Court that a charge under Sections 489A and 489C of
the IPC could be lawfully levelled only in the case of
counterfeiting of’Indian’ currency notes and not in the case
of counterfeiting of ‘foreign’ currency notes. The conten-
tion was upheld by the Sessions Court at the threshold of
the trial and the accused were discharged. Aggrieved by the
order of the Sessions Court discharging the respondents, the
petitioner (State of Kerala) filed a Revision Petition
before the High Court of Kerala. The High Court by its order
under appeal confirmed the order of discharge rendered by
the Sessions Court holding that “in the absence of an expla-
nation similar to that in the case of bank notes; Section
489A and the Sections that follow which relate to counter-
feiting of currency notes do not apply to cases of counter-
feiting of dollar bills.” The petitioner thereupon filed an
application under Article 134 (1)(c) of the Constitution of
India for leave to appeal to the Supreme Court. By its order
under appeal, the High Court certified it as a fit case for
appeal to the Supreme Court as “the case involves considera-
bly important questions of law as to whether counterfeit
American dollar notes will fall within the purview of Sec-
tions 489A and 489C of the Indian Penal Code.” That is how
the matter has come up before this Court.
Relevant provisions:–The anatomy of the relevant provi-
sions requires to be X-rayed at the outset. The concerned
provisions may therefore be screened:-
“489A. Whoever counterfeits, or knowingly
performs any part of the process of counter-
feiting, any currency note or ank note, shall
be punished with (imprisonment for life), or
with imprisonment of either description for a
term which may extend to ten years, and shall
be liable to fine.
Explanation:– For the purposes of
this section and of sections 489B, 4(489C,
489D and 489E) the expression “bank
note” means a promissory note or engagement
for the payment
321
of money to bearer on demand issued by any
person carrying on the business of banking in
any part of the world, or issued by or under
the authority of any State or Sovereign Power,
and intended to be used as equivalent to, or
as a substitute for money.
3. Subs. by Act 26 of 1955, s. 117 and sch.
for “transportation for life” (w. e.f. 1-1-
1956).
4. Subs. by Act 35 of 1950, s. 3 and Sch.II
for “489C and 489D”.
“489C. Whoever has in his possession any
forged or counterfeit currency-note or bank-
note, knowing or having reason 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 punished with im-
prisonment of either description for a term
which may extend to seven years, or with fine,
or with both.”
Analysis: An analysis of Section 489A reveals
that:–
(i) counterfeiting ‘any’ currency
note or bank-note is an offence;
(ii) knowingly performing any part
of the process of counterfeiting any currency
note or bank-note is also an offence; and
(iii) the prohibition against coun-
terfeiting or performing such process applies
to currency notes as also to bank-notes as
defined by the explanation to Section 489A.
And inasmuch as the aforesaid expression
interalia means any engagement1 for the pay-
ment of money to the bearer issued by or under
the authority of any State or Sovereign power
provided it is intended to be used as equiva-
lent to or substitute for money the prohibi-
tion also extends to counterfeiting etc. of
currency notes of any other sovereign power.
Outcome: This analysis reveals that the legislative embargo
against counterfeiting envelops and takes within its sweep
‘currency notes’ of all countries. The embargo is not re-
stricted to ‘Indian’ currency notes. The legislature could
have, but has not, employed the expression ‘Indian currency
1. A promise, obligation or other condition that binds. (See
Collins Dictionary)
322
note’. If the legislative intent was to restrict the parame-
ters of prohibition to ‘Indian currency’ only, the legisla-
ture could have said so unhesitatingly. The’ expression
‘currency note’ is large enough in its amplitude to cover
the currency notes of ‘any’ country. When the legislature
does not speak of currency notes of India the Court inter-
preting the relevant provision of law cannot substitute the
expression ‘Indian currency note’ in place of the expression
‘currency note’ as has been done by the High Court. The High
Court cannot do so for, the Court can merely interpret the
section; it cannot re-write, recast or redesign the section.
In interpreting the provision the exercise undertaken by the
Court is to make explicit the intention of the legislature
which enacted the legislation. In is not for the Court to
reframe the legislation for the very good reason that the
powers to ‘legislate’ have not been conferred on the Court.
When the expression ‘currency note’ is interpreted to mean
‘Indian currency note’, the width of the expression is being
narrowed down or cut down. Apart from the fact that the
Court does not possess any such power, what is the purpose
to be achieved by doing so? A Court can make a purposeful
interpretation so as to ‘effectuate’the intention of the
legislature and not a purposeless one in order to ‘defeat-
‘the intention of the legislators wholly or in part. When
the Court (apparently in the course of an exercise in inter-
pretation) shrinks the content of the expression ‘currency
note; to make it referable to only ‘Indian currency note’,
it is defeating the intention of the legislature partly
inasmuch as the Court makes it lawful to counterfeit notes
other than Indian currency notes. The manifest purpose of
the provision is that the citizens should be protected from
being deceived or cheated. The citizens deal with and trans-
act business with each other through the medium of
currency1, (which expression includes coins as also paper
currency that is to say currency notes). It is inconceivable
why the legislature should be anxious to protect citizens
from being deceived or cheated only in respect of Indian
currency notes and not in respect of currency notes issued
by other sovereign powers. The purpose of the legislation
appears to be to ensure that a person accepting a currency
note is given a genuine currency which can be exchanged for
goods or services and not a worthless piece of paper which
will bring him nothing in return, it being a counterfeit or
a forged currency note. Would the legislature in its wisdom
and anxiety to protect the unwary citizens extend immunity
from being cheated in relation to Indian currency notes but
show total unconcern in regard to their being cheated in
respect of currency notes issued by any foreign State or
sovereign power?. In the modern age a tourist from a foreign
country may bring from his own country into India currency
to the extent permissible under the law in India. So also he
may obtain foreign currency in exchange of Indian currency
whilst in India provided he does so to the extent permissi-
ble by the Foreign Exchange Regulation Act,
1. Currency n. 1. a metal or paper medium of exchange that
is in current use. (Collins English Dictionary).
323
1973(1) and operates through an authorised person(2) known
as money changer(3). Would it be reasonable to assume that
the legislature was totally oblivious of the need to protect
them from being deceived and defrauded? It would be unwise
to do so in the face ,of the internal evidence which pro-
vides a clue to the legislative anxiety on this score. In
fact the framers of the Code were so anxious to protect the
general public from fraudulant acts of counterfeiters that
not only have they defined the word “counterfeit” in very
wide terms in the Indian Penal Code, but they have also
prescribed a rule of evidence in Explanation 2 so as to draw
an adverse presumption against the maker of the counterfeit
article, as is evident from the definition of the term
“Counterfeit” read with the Explanations in Section 28 of
the Indian Penal Code(1).
What is more, the expression ‘bank note’ employed in
sections 489A to 489E of I.P.C. takes within its sweep an
engagement for the payment of money issued by or under the
authority of any State or Sovereign power as is evident from
the analysis of the Section made hereinabove. And it would
therefore cover a Dollar Bill or Dollar Note as well. A
dollar bill issued by the Sovereign Government of United
States of America would ipsofacto be covered by the expres-
sion ‘bank-note’. And as revealed by the analysis made
earlier, the prohibition would apply to the counterfeiting
of a Bank-note or being in possession of a counterfeit
Bank-note as well. It would, therefore, in any case, be an
offence to counterfeit a dollar bill or to be in possession
of counterfeit dollar bill.
1. Section 13(1): The. Central Government may, by notifica-
tion in the official Gazette, order that subject to such
exemption, if any, as may be specified in the notification,
no person shall except with the general or special permis-
sion of the Reserve Bank and on payment of the fee, if any,
prescribed, bring or send into India any gold or silver or
any foreign exchange or any Indian currency. Explanation:
For the purposes of this sub-section, the bringing or send-
ing into any port or place in India of any such article as
aforesaid intended to be taken out of India without being
removed from the ship or conveyance in which it is being
carried shall nonetheless be deemed to be a bringing, or, as
the case any gold or silver or any foreign exchange or any
Indian currency. (2)No person shall, except with the general
or special permission of the Reserve Bank or the written
permission of a person authorised in this behalf by the
Reserve Bank, take or send out of India any gold, jewellery
or precious stones or Indian currency or foreign exchange
other than foreign exchange obtained by him from an autho-
rised dealer or from a money-changer.
2. Sec. 6(1). The Reserve Bank may, on an application made
to it in this behalf, anthorise any person to deal in for-
eign exchange.
(2) An authorisation under this Section shall be in writing
and-
(i) may authorise dealings in all foreign currencies or
may be restricted to authorising dealings in specified
foreign currencies only;
(ii) may authorise transactions of all descriptions in
foreign currencies or may be restricted to authorising
specified transactions only;
(iii) may be granted to be effective for a specified
period, or within specified amounts;
(iv) may be granted subject to such conditions as may
be specified therein.
(3) Any authorisation granted under sub-section (1) may be
revoked by the Reserve Bank at any time if the Reserve Bank
is satisfied that–
324
(foot note contd.)
(i) it is in the public interest to do so; or
(ii) the authorised dealer has-not complied with the
conditions subject to which the authorisation was granted or
has contravened any of the provisions of this Act or of any
rule, notification, direction or order made thereunder:.
Provided that no such authorisation shall be revoked on
the ground specified in clause (ii) unless the authorised
dealer has been given a reasonable opportunity for making a
representation in the matter.
(4) An authorised dealer shall, in all his dealings in
foreign exchange and in the exercise and discharge of the
powers and of the functions delegated to him under section
74, comply with such general or special directions or in-
structions as the Reserve Bank may, from time to time, think
fit to give, and except with the previous permission of the
Reserve Bank, an authorised dealer shall not engage in any
transaction involving any foreign exchange which is not in
conformity with the terms of his authorisation under this
section.
(5) An authorised dealer shall, before undertaking any
transaction in foreign exchange on behalf of any person,
require that person to make such declarations and to give
such information as will reasonably satisfy him that the
transaction will not involve, and is not designed for the
purpose of, any contravention or evasion of the provisions
of this Act or of any rule, notification, direction or order
made thereunder, and where the said person refuses to comply
with any such requirement or makes only unsatisfactory
compliance therewith, the authorised dealer shall refuse to
undertake the transaction and shall, if he has reason to
believe that any such contravention or evasion as aforesaid
is contemplated by the person, report the matter to the
Reserve Bank.
3. Sec. 7:(1) The Reserve Bank may, on an application made
to it in this behalf, authorise any person to deal in for-
eign currency.
(2) An authorisation under this section shall be in writing
and-
(i) may authorise dealings in all foreign currencies or
may be restricted to authorising dealings in specified
currencies only;
(ii) may authorise transactions of all descriptions in
foreign currencies or may be restricted to authorising
specified transactions only;
(iii) may be granted with respect to a particular place
where alone the money-changer shall carry on his business;
(iv) may be granted to be effective for a specified
period, or within specified amounts;
(v) may be granted subject to such conditions as may be
specified therein.
(3) Any authorisation granted under sub-section (1) may be
revoked by the Reserve Bank at any time if the Reserve Bank
is satisfied that:-
(i) it is in the public interest to do so; or
(ii) the money-changer has not complied with the condi-
tions subject to which the authorisation was granted or has
contravened any of the provisions of this Act or of any
rule, notification, direction or order made thereunder.
Provided that no such authorisation shall be revoked on the
ground specified in clause (ii) unless the money-changer has
been given a reasonable opportunity for making a representa-
tion in the matter.
(4) The provisions of sub-sections (4) and (5)’of Section 6
shall, in so far as they are applicable, apply in relation
to a money-changer as they apply in relation to an autho-
rised dealer,
(5) Explanation–In this section, “foreign money” means
foreign currency in the form of notes, coins or travellers’
cheques and “dealing” means purchasing foreign currency in
the. form of notes, coins or traveller’s cheques or selling
foreign currency in the form of notes or coins.
325
Why then construe the expression ‘currency note’ as
being applicable only to an Indian currency note and not to
a foreign currency note like a dollar bill? There is neither
any compulsion of law nor of logic for indulging in the
exercise undertaken by the High Court which in the opening
part of the judgment has been adverted to as ‘judicial
activism in reverse gear’. Nor was any ideal to be attain by
doing so. Why then stretch the unstretchable? It appears
that the High Court lost its way whilst groping in the dark
by a possibly misconceived and ill-founded argument1 built
on the circumstance that whilst the explanation to Section
489A in terms refers to a bank note issued ‘under the au-
thority of any State or sovereign power’ similar explanation
is not added in the context of the expression ‘currency
note’. The High Court overlooked the fact that there was
neither any occasion, nor any reason, nor any need, for
doing so. For, the expression ‘currency note’ as it stood
was wide and pervasive enough to embrace the currency notes
issued by India as also currency notes issued by any other
country in the world. There was therefore no need to add a
similar explanation. It would have been futile to amplify
that the expression ‘currency note’ which on a plain reading
covers ‘all’ currency notes meant what it said. To read the
expression ‘any currency note’ to mean and refer to ‘Indian
currency note’ is to misread the expression by doing vio-
lence both to the letter and spirit thereof unmindful of the
fact that the former expression in its plentitude covers the
currency notes issued by any and every country of the world
whereas the letter is applicable to only one of the coun-
tries in the world. The High Court also fell in error in
being influenced by the definition of currency notes em-
bodied in the Indian Paper Currency Act (Act XX of 1822).
The High Court has overlooked the obvious fact that the
definition contained 1 in Section 2 of the said Act is only
for the purposes of that particular Act and it
cannot be imported into Section 489A to 489E of the Indian
Penal Code, as has been done by the High Court.
The High Court was thus wholly wrong in exerting itself
unnecessarily and bending backwards in order to hold that
Sections 489A to 489E are not
1. “28. A person is said to “counterfeit” who causes one
think to resemble another thing, intending by means of that
resemblance to practise deception, or knowing it to be
likely that deception will thereby be practised.
Explanation 1 –It is not essential to counterfeit-
ing that the imitation should be exact.
Explanation 2–When a person causes one thing to
resemble another thing, and the resemblance is such that a
person might be deceived thereby, it shall be presumed,
until the contrary is proved, that the person so causing the
one thing to resemble the other thing intended by means of
that resemblance to practise deception or knew it to be
likely that deception would thereby be practised.”
1. Says the High Court: “The omission of an explanation in
Sec. 489A for the expression “currency note” similar to the
one for ‘hank note’ thus assumes importance. The expression
could refer only to the currency notes issued by the Govern-
ment of India.”
326
applicable to currency notes other than Indian currency
notes. And in holding that counterfeiting of or possessing
of counterfeit dollar bills or dollar notes is not an of-
fence under the Indian law, thereby issuing a carte blanche
to the counterfeiters of the world to establish their head-
quarters within the State of Kerala with a view to carry on
their activities with impunity under the umbrella unwitting-
ly opened for them by the judgment of the High Court.
The view taken by the High Court is thus thoroughly
unsustainable. The judgment and order of discharge rendered
by the High Court are therefore reversed and set aside. The
matter will not to go back to the trail court for proceeding
further in accordance with law in the light of the observa-
tions made hereinabove. Appeal is accordingly allowed to
this extent.
M.L.A. Appeal allowed. 1. Says the High Court:--
“The expression ‘currency notes’ is Section 489A to 489BE
should naturally refer to currency notes as defined in Act
XX of 1822.”
327