1. In this case one Hira Nand was tried by the learned Sessions Judge of Benares on two charges, one framed under Section 489A and another under Section 420 of the Indian Penal Code. He was acquitted on the latter charge but convicted on the former, and a sentence of three years rigorous imprisonment was passed upon him. As regards the broad fact 3 of the case there is very little room for doubt. Hira Nand was a stranger in Benares, where he put up first at a certain dharmshala and later on at a hotel kept by the witness, Hari Ram. Negotiations passed between the said Hari Ram and the appellant, about which it may be said with reasonable confidence that Hari Ram has not told the entire truth. I am disposed 30 far to believe his evidence where it is corroborated by facts disclosed in the course of the inquiry, namely, that Hira Nand represented himself to Hari Ram as capable of producing forged currency notes and that he endeavoured to induce Hari Ram to provide him with a currency note of high value, Rs. 100 or more, for him to experiment on. Beyond this the evidence of Hari Ram, is not trustworthy, and I do not say that the charge of cheating as framed under Section 420 of the Indian Penal Code is established by the evidence. Whatever may or may not have passed between the two men, it is at any rate certain that Hari Ram finally took alarm and gave information to the Police. The inquiry resulted in the discovery in the possession of the accused of sensitized paper, such as is used by photographers, cut to the size of Rs. 10 and Rs. 5 notes, of certain sheets of glass by means of which it was obviously possible to obtain a photographic print of a currency note upon the paper above mentioned and of an actual photograph of a Rs. 10 note upon sensitized paper cut to the proper size which had, no doubt, been taken in the manner suggested. 1 do not think it is material to the determination of the case whether this photographic reproduction was found in the accused's pocket or between sheets of glass under the mattress of his bed. In either case it was recovered from the' possession of the accused. I agree also with the learned 'Sessions Judge that it is proved that Hira Nand himself had taken this photograph.
2. In doing so Hira Nand had undoubtedly either counterfeited or performed part of the process of counterfeiting a currency note, provided the Court is prepared to hold that he had made this reproduction, intending by means thereof to practise deception or knowing it to be likely that deception would thereby be practised. The Sessions Judge has rightly referred, not only to the definition of the word counterfeit quoted above from Section 28 of the Indian Penal Code, but also to Explanation 2 of the aforesaid section. The point urged upon me in appeal, and taken also in the Court Helow, is that the resemblance between these photographic reproductions and a genuine currency note was so slight that it should not be held to be such that a person might be deceived thereby. On this point I have the opinion of the learned Sessions Judge and that of the assessors, who agreed in finding Hira Nand guilty on this charge. Sitting, however, as a Court of Appeal, and requiring to be satisfied of the propriety of the conviction recorded by the Court below, I feel that the appellant is entitled to ask me to form my personal opinion on this question. This it is unfortunately impossible for me to do. The conviction in the Court below was recorded on the 8th of February 1917. An appeal against that conviction was presented in this' Court on the 10th of April 1917, and according to the office report the appeal was within time up to 16th April 1917. There was a delay of three days before any action was taken on the r(sic)etition of appeal, because it was present ed in the first instance without a vakalatnama and this defect had to be supplied. It may have been in consequence of this delay, but it was more probably due, as the learned Sessions Judge remarks in a letter of explanation which he has submitted to this Court, to an error of judgment on the part of a subordinate official, but in any case the alleged counterfeit Rs. 10 note had in the interval been, destroyed, under a mistaken belief that no appeal had been filed against the conviction and sentence. I regard this as an unfortunate accident, and I accept the assurance of the learned Sessions Judge that he has taken effective steps to prevent its recurrence. The result is that I am unable to form any opinion of my own on the most crucial question raised by this appeal.
2. There is another difficulty in the case which was obviously present to the mind of the learned Sessions Judge. There are features about the evidence for the prosecution, and particularly about the statement of the hotel-keeper Hari Ram, which are calculated to raise a doubt in the mind of the Court whether Hira Nand ever intended to place in circulation counterfeit currency notes for the deception of the public. The question is whether his intention throughout his entire proceedings may not have been simply to deceive Hari Ram and obtain from the latter some currency note or notes of higher value and disappear with the same. But for the unfortunate accident to which I have referred, it is quite possible that an inspection of the missing exhibit might have removed my doubts as to the propriety of the conviction as it stands. I must, however, deal with the matter on the materials available, and feeling as I do a certain doubt about the facts which, to a limited extent, is in favour of the appellant, I am bound to give effect to that doubt. The case seems to me to be precisely covered by the provisions of Section 236 of the Criminal Procedure Code. On the facts proved against him I am satisfied that Hira Nand committed one of two offences, either that of counterfeiting a currency note punishable under Section 489A of the Indian Penal Code, or that of attempting to cheat Hari Ram, punishable under Section 420, read with Section 511 of the Indian Penal Code. In place, therefore, of the conviction recorded in the Court below, I direct a conviction to be recorded in the alternative under the sections above referred to. Having done this, I feel bound to reconsider the question of sentence from the point of view of the maximum sentence provided for the lesser of the two alternative charges on which I have directed a conviction to be recorded. On this ground, and on this ground alone, I direct that the sentence passed upon Hira Nand be reduced to one of rigorous imprisonment for two years. The sentence will include three months' solitary confinement.