1. This is an appeal by the accused from his conviction and the sentence imposed upon him for an offence under Section 243, Penal Code. Section 243 provides that whoever, fraudulently or with in-tent that fraud may be committed, is in possession of counterfeit coin,' which is a counterfeit of Indian coin, having known at the time when he became possessed of it that it was counterfeit, shall be punished as stated in the section.
2. Now, the evidence in this case consists of the evidence of Sub-Inspector Raje, Panch witnesses Yadav and Punja, of the evidence of an expert and the Panchanama recorded in the case. The pancha-nama shows that the Panchas were called by the Sub-Inspector near the Darga of Sayyad Baba and a search was taken of the house of Gulam Rabbani, who is the accused in this case. It. states that on digging the place, the panchas found one small bundle wrapped with a piece of towel and on untying it the articles mentioned in the panchanama were found.
In the articles there were eight partly made counterfeit eight anna coins each having a print of a lion on one side and a print of George VI on the other side. The panchanama, then went on to say that at the time of the search Rahimatbi, the wife of the accused, was present; and when the panchanama was being written, the owner of the house, i.e., the accused camera the place.
Now, in supnort of the panchanama, evidence has been given by two panch witnesses. One of these witnesses is a man by name Yadav, and Ya-dav's evidence was that he went as a panch at the time of the search in the company of two other panchas and or the Sub-Inspector of Police. He said that when the party went for the search, the wife of the accused was in the house. He said that a soft portion in the floor was dug up about 6 inches and from there a bundle containing certain articles was taken out.
The learned Advocate, who appears for the accused, points out that the wife of the accused was called out by the Sub-Inspector and that was the evidence of panch Yadav and according to Yadav she remained outside. The contention; therefore, is that neither the accused nor his wife was present at tine time when the raid took place. As against this evidence, there is the evidence of panch Punja and his evidence was that he was taken for the panchanama of the search, that the three panchas went there and the house of the accused was dug up and at that time the wife of the accused was in the house, suggesting that she was present in the house.
Now, if this evidence is correct, it shows that the wife was present when the digging took place and this evidence is consistent with the contents of the panchanama. As against that, there is the evidence of panch Yadav, which shows that the wife of the accused was called out and she remained outside the house. Then, there is the evidence of the expert and the evidence of the expert was that he examined the half-rupee coins and found them to be palpable cast counterfeit half rupees of 1947. The report made by the expert would show that these 8 coins were palpable (obvious) counterfeit, unfinished and non-magnetic.
The learned Advocate for the appellant contends that having regard to the ppinion of the expert which was that these counterfeit half-rupee coins could not be passed off as genuine coins, it cannot be said that the accused has been guilty of the offence under Section 243, Penal Code. Section 243 requires that the person must be in possession of counterfeit coin and that the person who was possessed of it must have known at the time when he became-possessed of it that it was counterfeit. Section 28, Penal Code defines the expression 'counterfeit', and the essential ingredient of that section is that there must be a resemblance such as to practise deception although according to Expln. (1) of Section 28 the imitation need not be exact.
Mr. Choksi, the learned Government Pleader, points out that it may be that according to the view of the expert, it was not possible to pass off these eight coins as genuine coins, still the accused has rendered himself liable under Section 243, Penal Code. In our view, that contention is not correct. Although the resemblance need hot be exact, it is essential that the counterfeit must be of such a character that it would be possible to pass it off as a genuine coin and unless that is so, it would not be possible to practise deception and to practise deception is one of the ingredients of the definition of counterfeit in Section 28, Penal Code.
The learned Judge of the Court below was himself not quite sure of this position, because he took the view that even if it was not possible to pass off these as genuine coins, yet an unway person may be deceived into accepting them as genuine coins. This view seems to be opposed to the view of the expert and also to the appearance of the coins themselves.
3. it may be pointed out that the learned Advocate also contended that whereas the panchanama mentioned three panchas, Sub-Inspector Raje in his evidence referred to only two. But in this connection it is to be borne in mind that! this was not put to Sub-inspector Raje. We are not, therefore, prepared to draw any inference against the evidence of Sub-Inspector Raje, nor are we able to say that the wife of the accused was not in the house, for one thing the panchfinaina says that she was in the house and the contents of the panchanama are consistent with the evidence of panch Punja, who definitely stated that the wife was in the house.
We are not, therefore, prepared to rely on the evidence of the other panch. As, however, we accept the evidence of the expert that it was not possible to pass off these as genuine coins, we are unable to say that the accused has committed an offence within Section 243, Penal Code. That being so, the conviction of the accused cannot be allowed to stand.
4. The result is that this appeal will be allowed, the conviction recorded gainst the accused-appellant under Section 243, Penal Code and the sentence of one year's rigorous imprisonment imposed upon him will be set aside and the accusedwill be acquitted and discharged.
5. Appeal allowed.