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Hamid Ali and anr. Vs. the State - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantHamid Ali and anr.
RespondentThe State
Excerpt:
- - this has vitiated the trial of the two accused persons and it goes without saying that a conviction based on such a document cannot be allowed to stand as it will amount to failure of justice. educated, sophisticated and rich persons could be expected to forego the value of the notes about which they feel suspicion and to bring the matter-to the notice of the authorities, few such notes come into the possession of persons like the accused and they have to carry on their daily existences with what little come in their way by dint of hard labour......of jute sold to him. on the latter note being examined, p. ws. 1 and 2 found that it was also a forged note. thereupon hamid ali told them that he had shown the two notes to dr. dhirendra sen (p. w. 4) who had certified them to be genuine. it may be mentioned here that hamid ali is a petty merchant carrying on his sale in a place just outside the dispensary of dr. dhirendra sen.3. then it is said that the latter note was handed back to hamid ali and he was taken by manindra kishore paul to the dispensary of dr. dhirendra sen. in the outer room of the said dispensary arunodaya dey (p. w. 3) a pleader in sonamura was present. hamid ali produced the note and manindra kishore paul was examining the two notes, one taken from manindra chandra saha and the other produced by hamid ali. then.....
Judgment:

T.N.R. Tirumalpad, J.C.

1. The Appellant Hamid Ali was convicted by the Sessions Judge in Sessions Trial No. 13 of 1959 under Section 489B and 489C I.P.C. and sentenced to 3 years' R, I. under each count. The appellant Manindra Chandra Saha was convicted in the same trial under Section 489B read with Section 511 I.P.C. and under Section 489C I.P.C. and sentenced to 1% years' R. I. under each count, all the sentences to run concurrently. I am dealing with the two appeals in this common judgment.

2. The prosecution case against them was as follows: On 1-11-1958 Manindra Chandra Saha went to the shop of Jatindra Mohan Saha (P. W. 2) at about 4 P. M. and asked for change for a 10 rupee currency note, At that time Manindra Kishore Paul (P. W. 1) was also sitting in the shop. He became suspicious of the genuineness of the note from its colour. Both he and Jatindra examined the note and decided that it was counterfeit. On being questioned, Manindra Chandra Saha said that he had sold some mustard to the appellant Hamid Ali for which he was paid Rs. 10/5/- including the said currency note-Then Manindra Chandra Saha was asked to bring Hamid Ali. Accordingly Hamid Ali was brought and the latter admitted to P. Ws. 1 and % that the 10 rupee note was given by him to Manindra Chandra Saha in payment of the price of mustard. Hamid Ali, evidently because P. Ws. 1 and 2 were auspicious of the note, produced another 10 rupee currency note from his waist and told them that he had received the two currency notes from one Aslam for the price of jute sold to him. On the latter note being examined, P. Ws. 1 and 2 found that it was also a forged note. Thereupon Hamid Ali told them that he had shown the two notes to Dr. Dhirendra Sen (P. W. 4) who had certified them to be genuine. It may be mentioned here that Hamid Ali is a petty merchant carrying on his sale in a place just outside the dispensary of Dr. Dhirendra Sen.

3. Then it is said that the latter note was handed back to Hamid Ali and he was taken by Manindra Kishore Paul to the dispensary of Dr. Dhirendra Sen. In the outer room of the said dispensary Arunodaya Dey (P. W. 3) a pleader in Sonamura was present. Hamid Ali produced the note and Manindra Kishore Paul was examining the two notes, one taken from Manindra Chandra Saha and the other produced by Hamid Ali. Then Arunodaya Dey also examined the notes. Both Manindra Paul and Arunodaya came to the conclusion that they were forged notes.By that time. Dr. Sen came out from the inner room and he also examined the two notes which were then in the possession of Manindra Paul and he was also of opinion that they were forged notes. Dr. Sen was told that the notes were in the possession of Hamid Ali and that the latter had said that Dr. Sen had certified them to be genuine notes. But Dr. Sen denied having done so.

On this point, there is some discrepancy between the evidence of Manindra Paul and Dr. Sen, Manindra Paul deposed that Dr. Sen said that Hamid Ali had shown him the two notes from a distance of 8 to 9 cubits and that he could not then say whether or not those two notes were genuine. Thus it was not a case of Dr. Sen telling Hamid Ali when the notes were shown to him that they were not genuine. It pertinent to mention that Hamid Ali repeated at Dr. Sen's dispensary in the presence of P. Ws. 1, 3 and 4 that he had got the two notes from one Aslam, for price of jute.

4. Then P. W. 1 wrote the note Ext. 7 to P. W. 8, the Officerin-charge of Sonamura Police Station stating that he had found out two 10 rupee notes suspected to be forged and that a man in whose possession one note was found was in the-Pharmacy of Dr. Sen and that he was waiting in the-Pharmacy with the man and the notes and he prayed for action. Then P. W. 5 went to the dispensary and the two notes were produced by Manindra Paut. and seized by P. W. 5. P. W. 5 arrested Hamid Ali the same night.The two notes were then sent through the S.D.M. Sonamura to the Currency Department of the Government of India for examination and opinion. The report of the Currency Officer, Ext. P-10 dated 18-11-1958 stating that the notes were crude process-made forgeries was received by the S.D.M. Sonamura on 20-11-58, Then Manindra Chandra Saha was arrested on 5-12-58 and both the accuse persons were charge-sheeted on 6-12-58. Both of them were then committed to the Sessions by the S.D.M.

5. Hamid Ali stated in the committing Court by way of defence that Manindra Paul owed him money for using his carts and that when he did not pay, there was an altercation on the Saturday preceding the date of occurrence. Then on the day of occurrence Manindra Chandra Saha took him to-Manindra Paul and when the latter asked him whether he had given the 10 rupee note to Manindra: Chandra Saha as price of mustard he denied it.

Then he was taken to Dr. Sen's dispensary and he was asked whether any more notes of that category were with him. He then showed Rs. 25/- which he had with him. They were genuine notes'. That night he was arrested. Manindra Saha on the other hand stated in defence in the committing Court that he sold mustard to Hamid Ali on the date of occurrence and Hamid Ali gave him the price showing him two 10 rupee notes.

A doubt then arose in his mind on seeing the-two notes. Hamid Ali asked him to choose one of the notes and he took one and he tried to change it in the shop of Jatindra Saha. Then he was questioned and he stated what happened. Then he was-asked to get Hamid Ali and Hamid Ali stated before them that he had given the note and he drew out another note which was with him.

6. The learned Sessions Judge in a judgment of 31 pages which, I must say, was unnecessarily prolix and contained many repetitions which could have been avoided held that both the notes were torged ones and further that both Hamid Ali and Manindra Saha had reason to believe the notes to be forged ones, that Hamid Ali was therefore guilty under Section 489B for trafficking in forged notes and using them as genuine in handing over one note to Manindra Saha for the price of the mustard and thereby committed the offence under Section 489B.

He also held that in respect of the note found in his possession Hamid Ali was guilty under Section 489C as he had reason to believe the said note to be a forgery. As for Manindra Saha the learned Sessions Judge held that he was guilty under Section 489C I.P.C. for the same reason in respect of the note found in his possession. He also held that Manindra Saha attempted to get change for the note and there by used it as genuine and so he was guilty under Section 489B read with Section 511.

7. Now, it is urged in appeal that the learned Sessions Judge was wrong in having relied on Ext. P-1O as proving that the two notes were forged notes. My attention was drawn to Section 510 Cr. P.C. in which the report of a Currency Officer regarding the genuineness or otherwise of a currency note was not included as one of the documents which could be used as evidence in a Court without the examination of the Officer as to the subject-matter of his report. The learned Sessions Judge held that the report Ext. P-10 was admitted in evidence without any objection under Section 510 Cr. P.C. and that though the report of a Currency Officer is not specifically mentioned in the section as admissible without his examination as to the subject-matter of his report, the Currency Officer occupied almost an allied rank as that of an Officer of the Mint and hence the said report was admissible, particularly as it was not disputed on behalf of the accused persons that the two currency notes were forged.

8. I am unable to understand wherefrom the learned Sessions Judge found that the accused had admitted that the currency notes were forged. The reply of Hamid Ali to the question put by the Sessions Judge under Section 342 Cr. P.C. about the Currency Officer's report was that no notes were found with him. This certainly does not amount to such an admission. To the same effect was his answer when questioned in the committing Court.

As for Manindra Saha he stated when questioned about the report of the Currency Officer by the Sessions Judge that he did not know whether they were forged or not. No doubt in the Magistrate's Court he had stated that when Hamid Ali showed him the note a doubt arose in his mind and that Hamid Ali asked him to choose one of the two notes and he chose one. Even this answer does not show that he admitted the notes to be counterfeit. Hence it follows that the statement of the Sessions Judge that it was not disputed by the accused is not correct.

9. The question therefore arises whether the Sessions Judge was right in admitting Ext. P-10 as evidence without the examination of the Currency Officer under S. 510. It is clear that Section 510 will not permit the admission of Ext. P-10 and that the Legislature did not intend to have such a report admitted without oral evidence regarding the subject-matter. The statement of the Sessions Judge that a Currency Officer occupied an almost allied rank as that of an Officer of the Mint is meaningless.We are not concerned with the rank of an Officer under Section 510. We are concerned with their expert knowledge and the special processes which the officers mentioned in Section 510 have to use in examination and analysis. Section 510 was amended as late as 1955 by the inclusion of the Chief Inspector of Explosives, the Director of Finger Print Bureau and Officer of the Mint. Even then, the Legislature did not think it fit to include a Currency Officer in that list. The reason evidently is because the opinion of the Currency Officer is based on the visual examine of the note and not on any special process or opinion has to be tested by cross examination of the note and not on any special analysis and such opinion has to be tested by cross-examination before it can be accepted against an accused person, There is no doubt therefore that the learned Sessions Judge was wrong in basing his finding regarding the forgery by using Ext. P-10 as evidence. This has vitiated the trial of the two accused persons and it goes without saying that a conviction based on such a document cannot be allowed to stand as it will amount to failure of justice.

10. The question now is whether I should send back the case for a retrial after setting aside the conviction and sentence. 1 find this unnecessary as I consider on an examination of the other evidence let in against the accused persons that the offences under Sections 489B and 489C have not been made out against them, even granting the notes to be forgeries. (After discussing the evidence in Paras 11-17 the judgment proceeded):

18. The circumstances stated above showed that both Hamid Ali and Manindra Saha had some doubt whether the notes were genuine. The question arises whether such suspicion which both of them had and which they had tried to clear before they used the notes would amount to reason for belief that the note was forged. On this aspect of the matter there is no doubt in my mind that the learned Sessions Judge has committed a serious mistake. The learned Judge had rightly stated that the burden was on the prosecution to prove that the accused had reason to believe the notes to be forged. But he thought that the crudity of the forgery as stated in Ex. P-10 and the difference in colour were enough reason for any one to believe the forgery.

19. Now. Section 26 I.P.C. defines 'reason to believe' by stating that a person is said to have reason to believe a thing if he has sufficient cause to believe that thing but not otherwise. It is clear that suspicion will not amount to sufficient cause to believe. It has been held in a number of decisions which it is not necessary to detail here that the word 'believe' is a very much stronger word than 'suspect' and that it involves the necessity of showing that the circumstances were such that a reasonable man must have felt convinced in his mind that the note with which he was dealing was a forged one and that it was not sufficient to show that the accused was careless or he had reason to suspect or that he did not make sufficient enquiry to ascertain the fact.

The learned Government Advocate also stressed the fact that the forgery was a crude one as seen from the report Ex. P-10 and that the crudity of the forgery itself was sufficient cause to believe that it was forged. All this talk about crudity of the forgery started only after receipt of Ex. P-10. Let us see the first report Ex. P-7 made by P. W. 1 to the Police. In that, he has only mentioned that he suspected the notes to be forged. Thus, in spite of what P. Ws. 1-4 has stated in evidence after the receipt of Ex. P-10, the fact remains that at the time, there was only suspicion in the minds of all the witnesses and of the accused.

20. Thus even granting that it appeared to be a crude forgery to the Currency Officer, that fact by itself would not be enough to show that the accused persons had sufficient cause to believe. What the prosecution had to show was not that the Currency Officer had reason to believe, but that the accused had reason to believe. Under Indian Penal Law, guilt is sought to be fastened either on the ground of intention or knowledge or reason to believe. As I far as Sections 489B and 469-C are concerned, it is by 'Knowledge' or 'reason to believe'.

The two are more or less ejusdem generis though 'knowledge' will be on a slightly higher plane than 'reason to believe'. We cannot try to add 'suspicion' or 'doubt' as fastening liability under Sections 489-B or 489C. We cannot also try to raise 'suspicion' or 'doubt' to the level of 'reason to believe'. If the section contained the words 'suspicion that the same was not genuine' instead of 'reason to believe that the same was forged,' then alone the accused in this case could have been held guilty and not otherwise.

21. The notes came into the possession of the two accused even according to the prosecution case, in the normal course of business. When they felt a doubt about the notes, the natural inclination of such rustic folk will be to get rid of those notes. This was what they sought to do in the present case. Such attempt to get rid of the notes cannot be said to amount to trafficking in forged notes having reason to believe them to be forged notes.

I can understand if under the Currency Laws in existence there was any duty cast on a person who came into possession of suspicious notes to bring them immediately to the notice of the authorities. The learned Government Advocate was not able to show me any such law or rule. When therefore a person in the usual course of business gets a currency note which he finds to be suspicious and tries to get rid of the note as the accused have done in the present case, I am not prepared to say that they would be guilty either under Section 489B or 489C.

We have also the further reason that the two accused to this case are uneducated rustic folk. Educated, sophisticated and rich persons could be expected to forego the value of the notes about which they feel suspicion and to bring the matter-to the notice of the authorities, Few such notes come into the possession of persons like the accused and they have to carry on their daily existences with what little come in their way by dint of hard labour. When such persons try to get rid of the notes of the kind which come into their possession, it would be utter travesty of justice to find them guilty under the two sections and punish them so severely.

22. I have no hesitation in coming to the conclusion that the prosecution has not proved the guilt of the accused persons under the two sections. Their convictions and sentences are set aside and they are directed to be set at liberty.


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