State vs Sampangi and Others

M.F. Saldanha, J.—These 3 criminal appeals relate to six accused persons. The allegation being that the original accused No. 1 was apprehended by the police on the basis of certain information and he was found exchanging a one hundred rupee note when he was apprehended and he was found in possession of six more such notes. These notes were counterfeit notes and pursuant to the interrogation the police kept a watch and apprehended Accused Nos. 2 and 3 near the Race Course and they were found in possession of 8 and 36 notes respectively. The police in the course of the investigation apprehended A-4, A-5 and A-6 who are alleged to have made certain voluntary statements pursuant to which the police went to their respective houses and the accused are alleged to have produced 24, 61 and 91 notes respectively. There is no dispute about the fact that the expert evidence indicates that these notes are not genuine notes and that they are counterfeit notes. The Trial Court convicted A1 and A2 and acquitted the remaining accused. Crl.A. 957 of 1998 and Crl.A. 931 of 1998 are filed by the convicted accused challenging their conviction and Crl.A. 1318 of 1998 has been filed by the State of Karnataka assailing the acquittal of A-3 to A-6. We have heard the learned Counsel representing the various parties on merits and we have also done a detailed review of the record.

The learned Government Pleader points out to us that it is conclusively established that all the notes in question are counterfeit and further more that these have been recovered from the respective accused. His submission is that all the six accused ought to have been convicted u/s 489-B Indian Penal Code and that the trial Court was in error in having acquitted A-3, A-4, A-5 and A-6. As far as the conviction of A-1 and A-2 are concerned, he supports the Trial Court judgment and submits that once the accused were found in possession of the notes which are in relatively large number that it is for the accused to have explained the source of the notes and it was for the accused to have satisfied the Trial Court that even if the notes were genuine that the possession was innocent and that they had no guilty knowledge.

Learned Counsel who represent the accused have in the first instance submitted that in view of the ratio laid down in the decision reported in Jackaran Singh Vs. State of Punjab, , where no signature has been recorded or for that matter even thumb impression taken on the voluntary statement, that a suspicion arises as to whether at all a statement was made by the accused. We do need to uphold this submission because in the absence of the signature or thumb impression it would be a little difficult to fasten the liability of that statement on the accused.

The next objection that was raised was that in a number of decisions, notably, in 1975 SCC 737 where the complainant has acted as the Investigating Officer that the Court has disapproved of such a dual role and has held that the trial is vitiated the reason being that the complainant is required to appear as a witness on behalf of the prosecution whereas the I.O. is required to appear as a witness for purposes of narrating the sequence of the investigation and satisfying the Court that it is in order. The Courts have generally disapproved of the same individual functioning in both capacities and in our considered view, both these objections would have to be upheld.

After a detailed review of the record, we do find that there is one glaring lacuna in the present case which really goes to the root of the matter. Notes are normally brought in circulation and irrespective of whether they are genuine or otherwise, a party may be found in possession of notes, which may subsequently turn out to be counterfeit and it is in order to ensure that persons who innocently come in possession of such notes are not wrongly convicted that the section requires that the prosecution must also establish that the accused who was in possession of the counterfeit notes knew or had reason to believe that they were counterfeit. This is a very important ingredient of the law because there is a difference between innocent possession and guilty possession. The onus of establishing this most important ingredient lies squarely on the prosecution. The learned Government Pleader did submit that from the number of notes that were recovered from the possession of each accused that it is self-evident that they were fully aware of the non-genuineness and that they were trying to pass them off as genuine. We cannot accept this argument because some concrete evidence is necessary from which the Court can draw the inference that it was not innocent possession. Unfortunately, on this vital ingredient the evidence is not only lacking but is totally non-existent. This is the most important ingredient in the offence of user and possession of counterfeit currency and in the absence thereof no conviction can be upheld. As a necessary consequence, we set aside the convictions recorded by the Trial Court against A1 and A2. In the light of the aforesaid legal position it would be impossible to offset the order of acquittal that has been passed in favour of A3 to A6. Crl.A. 957 of 1998 and Crl.A. 931 of 1998 accordingly succeed. Crl.A. 1318 of 1998 fails on merits and stands dismissed. Bail bonds of the accused to stand cancelled.