Milon Biswas vs State of West Bengal

Re: CRAN 3189 of 2017

This is an application under Section 389 of the Code of Criminal Procedure. The appellant has been convicted by learned Additional Sessions Judge, 2nd Court, Krishnagar, Nadia in Sessions Trial No. II(1) 2017 arising out of sessions case no. 31(12) 2016 for the offence under Section 489C of the Indian Penal Code and convicted the appellant to suffer rigorous imprisonment for five years and also to pay fine of Rs.10,000/-.

Learned advocate appearing on behalf of the appellant contends that the appellant was all along on bail and the appellant had never misused the liberty granted to him during trial. Learned advocate for the appellant vehemently contends that the prosecution has failed to prove the intention of the appellant and in absence of such intention the appellant should not have been convicted for the offence under Section 489C of the Indian Penal Code despite the factum of recovery of some fake Indian currency notes from the possession of the appellant. In support of his contention, learned advocate for the appellant has relied on a decision reported in 1987 (II) CHN 430 (Jiban Sasmal Vs. The State of West Bengal), wherein the Division Bench of this Court has held in paragraph 9 which is as follows: "9. Although it is in evidence led on behalf of the prosecution that five currency notes were recovered from the possession of the present appellant but mere possession of those counter-feit currency notes will not be sufficient to uphold the charge framed against the appellant under s/489C and, as such, the conviction thereunder cannot be sustained inasmuch as from a plain reading of the said Section, it is clear that mere possession of any forged or counterfeit currency notes or bank notes, knowing or having reason to believe the same to be so will not be sufficient inasmuch as the Section itself provides that possession coupied with intention to use the same as genuine is required to be satisfied before a conviction can be upheld under s/489C. In the charge framed against the appellant under the said section, it has been stated that under s/489C, he had in his possession five currency notes of ten rupee denomination, full particulars thereof had been given, together with the charge that he intended to use the same as genuine, whereas from an analysis of the evidence led for and on behalf of the prosecution, it is clear that it does not support such charge inasmuch as all the five counterfeit currency notes were no doubt found in his possession but there is no evidence that he intended to use the same as genuine."

Mrs. Sinha, learned advocate appearing on behalf of the State contends that there cannot any direct evidence with regard to the intention of the appellant but the evidence has to be gathered from attending circumstances. Mrs. Sinha draws the attention of this court with regard to the intention of the present appellant, who has been examined as defence witness no.2 in the trial court. On scrutiny of the evidence of the appellant D. W. 2 it transpires that he had been to the shop for mortgaging two gold bangles. There is absolutely nothing in the evidence of the appellant to show that he had any sort of intention to use such fake currency notes which were recovered from the possession of the present appellant.

Being fortified with the decision of the Division Bench as discussed hereinabove and having regard to the facts and circumstances of the case I do find that the appellant has been able to make out a case of success in the appeal and as such he ought to be released on bail. The appellant may be released on bail upon furnishing bond of Rs.50,000/- with two sureties of Rs.25,000/- each, subject to the satisfaction of the Chief Judicial Magistrate, Nadia on condition that he shall be attending the court of learned Chief Judicial Magistrate, Nadia once in a month until further order.

The department is directed to call for the lower court records forthwith. The department is also directed to prepare the paper book within four weeks from the date of receipt of the lower court records upon issuance of usual notices to all concerned.

Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.