JUDGMENT
C.R. Rahim, J.
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.
3. Sri Kamal Krishna appearing for the appellant has submitted that the learned Judge has erred in holding that the accused appellant had knowledge that the said currency note was forged. he has slated that the conduct of the accused shows that he was innocent and had no knowledge that the said note was forged. In the first information report it was stated that he was arrested from the spot. P.W. 5 constable has also stated that he took the accused to the police station after preparing recovery memo of the counter-feit note. P.W. 3 Jagdish Kumar Agarwal has stated when he was in doubt about the genuineness of the currency note and he went to the contiguous shop of his brother P.W. 2, who was a medical practitioner to varify whether the said currency note was genuine. He has also stated that when his brother expressed doubt he went to the shop of M/ s. Tula Ram Raja Ram to get confirmation. In cross-examination He has stated that during the period the accused was standing in the shop. Learned counsel has submitted that if the accused had any knowledge that the said note was not genuine he would have tried to flee away from the spot. This very conduct of the accused shows that he was innocent.
4. Learned counsel in this connection has referred the ease of Hamid Ali v. State,,AIR 1961 Tripura 46 : (1961 (2) Cri LJ 801) wherein it has been held that under Sections 489B and 489C guilt is fastened on the ground of ‘knowledge’ or ‘reasons to believe’. But suspicion of doubt is not sufficient for fastening the liability under those sections.
5. Learned Judge has held that in view of special feature that the currency note which was made of two parts completely pasted together and which was visible it cannot be said that the accused had no knowledge that the said currency note was counterfeit one.
6. From the evidence of Jagdish Kumar Agarwal, P.W. 3, and Dr. Virendra kumar P.W. 2, it appears that they suspected about the genuineness of the said note after inspecting it and in order to get confirmation they consulted with P.W. 4. In both sections, namely, Sections 489B and 489C, I.P.C. words “knowing or having reason to believe the same to be forged or counterfeit note” have been commonly used. Referring that portion the learned counsel has submitted that in Hamid Ali’s case (supra) it was held that in case of suspicion whether notes were genuine will not amount to “reasonable” cause to believe. In anotherdecision reported in 1980 SCC (Cri) 17 : (AIR 1979 SC 1705) (M. Mammutti v. State of Karnataka), it was held that presumption of knowledge from mere possession can only be drawn if the notes were apparently counterfeit. In the instant case it was not so. After receiving the counterfeit note P.W. 3 had suspicion. He went to P.W. 2 for confirmation and to get further confirmation they visited the shop of P.W. 4. From these facts it is apparent that the counterfeiting exercise was so skilful that P.W. 3 could not be sure of it and had to run to two persons to get confirmation.
7. There arc other circumstances too. Learned counsel has pointed out the conduct of the accused which is most relevant to assertion if he had knowledge of it or not. Mere possession of the counterfeit note is not punishable under the law. It must be conscious possession. The accused must have possessed it knowingly that it was forged or counterfeit note. If the accused Appel late had knowledge of the same he would have tried to flee away from the place. But the evidence is that he was all along standing at the medical store till he was apprehended by P.W. 5 the constable. Reliance has been placed in the case of Madan Lal Sharma v. State, 1990 Cri LJ 215, wherein it has been held at page 216:
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.
8. In that case also one hundred rupee note was found from the possession of the accused. It was made of two parts neatly pasted together. Its lower part was genuine while the upper part was hand drawn replica of the 100 rupee note. But the Division Bench of Calcutta High Court did not consider it as a special feature, as the learned Judge did, to burden the accused with conscious possession.
9. In the case of Bachan Singh v. State of Punjab, 1982 Cri LJ 32, wherein it was held at page 35:
The prosecution has not only to prove that the accused had possession of counterfeit note ensuring it or having reason to believe it as such but further to prove circumstances which lead clearly, indubitably and irresistibly to his/her intention to use the notes on the public. Such intention could be proved by a collateral circumstance that the accused had palmed off such notes before, or that he/she was in possession of such notes in such large number, that her possession for any other purpose was inexplicable.
10. It is an admitted fact that no such evidence is forthcoming that such occasion ever arose before where the accused was found in possession of such type of currency notes. It is also the prosecution case that he was found with a single note and therefore, there was no questions of having with any other similar notes in his possession.
11. In the case of Chatt Ram v. State of Haryana, AIR 1979 SC 1890: (1979 Cri LJ 1411) certain forged lottery tickets were found from the possession of the accused. It was held at page 1416; of Cri LJ:
Even if it is assumed for the sake of argument that the number on Ex. P-3 had been forged, that by itself would not show that Chatt Ram, appellant forged it or participated in the forgery. Nor would be mere fact that Chatt Ram presented this ticket before the officers concerned and claimed Special Prize on its basis, necessarily stamp him with the knowledge or belief of its forged character.
12. So in this case it was held that the accused must have knowledge or belief about the forged character of the Lottery tickets which were found from his possession.
13. The learned Judge has considered the circumstances about the arrest of the accused from the spot but has stated that the mere fact that the accused did not run away does not mean that he had no knowledge. It might be that large number of crowd assembled there and he could not get any opportunity to escape. The latter part of his finding is against the weight of evidence on record. The evidence is that the crowd assembled after P.W. 3 visited the shop of P.W. 4. It was done after he consulted his brother P.W. 2 at his chamber. So it is not correct to say that the accused had no chance to escape. Moreover, he did not run away is certainly an important feature that should have been considered while judging whether the accused had knowledge about the counterfeit note. 1 do find that the learned Judge was unable to appreciate the said circumstance properly.
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.