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State (Delhi Administration) Vs. Pawan Kumar Garg - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Appeal No. 58 of 1980
Judge
Reported in1985(9)DRJ228; 1985RLR565
ActsIndian Penal Code (IPC), 1860 - Sections 489C; Evidence Act, 1872 - Sections 101
AppellantState (Delhi Administration)
RespondentPawan Kumar Garg
Advocates: M.L. Sachdev and; J.C. Digpal, Advs
Cases ReferredVijay Kumar v. Stale
Excerpt:
.....it may be used as genuine. r 50 wherein it has been held that a person possessing counterfeit of forged notes can be convicted only if all the ingredients of section 489c are proved which in other words means that the triple requirement of the substantive offence that (1) a person is found in possession of counterfeit currency (2) that he was knowing or had reason to believe the same to be forged and (3) that he intended to use the same as genuine or that it may be used as genuine, has to be satisfied by the prosecution by positive proof and this burden prosecution must discharge before an offence under section 489c can be said to be proved. the finding on this essential condition, to my mind, will determine the finding on the third condition as well for if it is found that the accused..........arya v. state (1974 raj. l. r 50 wherein it has been held that a person possessing counterfeit of forged notes can be convicted only if all the ingredients of section 489c are proved which in other words means that the triple requirement of the substantive offence that (1) a person is found in possession of counterfeit currency (2) that he was knowing or had reason to believe the same to be forged and (3) that he intended to use the same as genuine or that it may be used as genuine, has to be satisfied by the prosecution by positive proof and this burden prosecution must discharge before an offence under section 489c can be said to be proved. (6) almost to the similar effect are the observations made in vijay kumar v. stale (1975 raj. l. r 223 by r.n. aggarwal j. while dealing with a.....
Judgment:

Malik Sharief-Ud-Din, J.

(1) This appeal is directed against the acquittal of the respondent Pawan Kumar Garg, recorded by the Additional Sessions Judge, Delhi, by her judgment/order dated 22nd September 1979 and acquitting him of the charge under Section 489(0 Indian Penal Code Earlier, the respondent was charged under the aforesaid offence as be was found in possession of 16U.S Dollars of 100 denomination and one dollar of 30 denomination, all were found to be counterfeit. The accused was put on trial by C.B.I,

(2) The facts allegedly are that on 23-11-77 an information was received that the respondent was trafficking in counterfeit US. Dollars and on that day the* respondent will be passing through Tolstoy Lane behind Scindia House, Connaught Place at about 3 P.M. with forged U.S. Dollars in possession. A raid was arranged under the auspices of Inspector N.P. Tiwari, Inspector P.R. Singh and Constable RA. Mishra. Public Witness s I and 2 Rameshwar Nath and UJjal Singh respectively were involved in the raid as independent witnesse?. After the informer pointed out towards the respondent coming from the side of Ringo Guest House in Tolstoy Lane, Inspector Mishra disclosed his identity but the respondent tried to escape. Hs was, however , overpowered and the counterfeit Dollars were recovered form him.

(3) At trial in all 8 witnesses Were examined Which included Public Witness s 1 and 2 Rameshwar Nath and Ujjal Singh also. Furthermore, the witnesses examined included two experts' Public Witness 3 Shri Nirmal Kumar, Superintendent in the Foreign Exchange Department of State Bank of India, Parliament Street and Public Witness 7 Ybes Le Dore, Head of the Counterfeit Currency Department at the Secretariat of Interpol, Paris and both these witnesses, who were experts In their own right had testified that the U.S. Dollars seized in this case are counterfeit.

(4) The trial Court relying on the testimony of the witnesses found the prosecution Case proved to the extent that these counterfeit Dollars were recovered from the possession of the respondent at the relevant time and also accepted the evidence of the Experts particularly of Public Witness , Ybes Le Dore that the dollars were counterfeit. After having held so the learned Additional Sessions Judge seems to have acquitted the respondent on the ground that the prosecution has failed to prove all the ingredients of the offence particularly the tact that the respondent knew or had reason to believe that the dollars were forged or counterfeit and he intended to use the same as genuine or that it may be used as genuine.

(5) We have heard Mr. M.L. Sachdeva, learned counsel for the State and also Mr J C Digpal, counsel for the respondent at great length. Mr. Sachdeva's contention is that in a case such as this after accepting the prosecution evidence that the accused was found in possession of counterfeit dollars the learned Additional Sessions Judge erred in acquitting the accused on the simple ground that prosecution has not led evidence to show that the accused knew or had reason to believe these to be counterfeit and that he intended to use the same as genuine or that it may be used as genuine. He relies on Sections 106 and 114 of the Evidence Act and urged before us that this is a fact which is within the special knowledge of the accused and in the absence of accused having tendered an Explanationn as to how he came in possession of these counterfeit dollars, a presumption should have been raised by the learned Additional Sessions Judge against the accused that he knew these dollars to be counterfeit and intended to use them as genuine. We may notice that the learned Additional Sessions Judge in holding that the burden of proving these facts was on the prosecution placed reliance on Ved Rattan Arya v. State (1974 Raj. L. R 50 wherein it has been held that a person possessing counterfeit of forged notes can be convicted only if all the ingredients of Section 489C are proved which in other words means that the triple requirement of the substantive offence that (1) a person is found in possession of counterfeit currency (2) that he was knowing or had reason to believe the same to be forged and (3) that he intended to use the same as genuine or that it may be used as genuine, has to be satisfied by the prosecution by positive proof and this burden prosecution must discharge before an offence under Section 489C can be said to be proved.

(6) Almost to the similar effect are the observations made in Vijay Kumar v. Stale (1975 Raj. L. R 223 by R.N. Aggarwal J. while dealing with a case under Section 489C. He made the following observations

'The real point that requires determination is whether the accused had the knowledge or reason to believe that the currency notes in question were forged. The finding on this essential condition, to my mind, will determine the finding on the third condition as well for if it is found that the accused knew or had reason to believe the currency notes to be forged there will be little doubt that the intention was to use them as genuine notes.'

Further observation while dealing with Section 114 of the Evidence Act by R.N. Aggarwal J. is as under :

'The words 'may presume' in Section 114 leave it to the Court to make or not to make the presumption according to the circumstances of the case.'

We may reproduce Section 489C which reads as under :-

'489-C.Whoever has in his possession any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extent to seven years, or with fine, or with both.'

A plain reading of this section clearly goes to show that the prosecution in order to establish the guilt of the accused has to prove (1) that the accused was in possession of forged or counterfeit currency notes, (2) that the accused knew or had reason to believe the same to be counterfeit or forged, and (3) that the accused intended to use the same as genuine or that it may be used as genuine.

(7) As already indicated Mr. Sachdeva urged that whether the accused had the knowledge or reason to believe these to be counterfeit was within the special knowledge of the accused and unless the accused tenders an Explanationn as to how he came into possession, presumption should be raised against him that he knew these to be forged. We do not find ourselves in agreement with the broad and sweeping proposition put forward by Mr. Sachdeva. One of us, R.N. Aggarwal J. while dealing with a similar case, as indicated above, has observed that on facts of such cases two inferences are possible. One, that the accused had received the currency notes in question believing them to be genuine for unlawful trade and second, that the accused had knowledge or reason to believe that the currency notes are forged and he intended to use them as genuine and when on facts of a case these two inferences are possible the one favorable to the accused in the absence of any proof that he knew these to be counterfeit, has to be adopted.

(8) Moreover, we may observe that Section 106 is an exception to the general rule laid in Section 101 of the Evidence Act that the burden of proof basically lies on the prosecution. Section 106 of Evidence Act surely is not intended to relieve the prosecution of that duty. This provision is designed to meet certain exceptional situations in which it would be impossible or disproportionately difficult for the prosecution to establish facts which are specially in the knowledge of the accused and which he can prove without difficulty or inconvenience. The word 'specially' used in the section clearly hints to the facts that are pre-eminently or exceptionally within his knowledge and no other interpretation can be put on the section or else it will lead to startling conclusions. To us it appears that if the relevant or material information in a particular case is found to be within the special knowledge of the accused then alone the provision of Section 106 are attracted and if the fact is such as is capable of being known by others also and is capable of discovery by diligent and proper investigation, though it might be difficult to do so, then in such an event the prosecution is not relieved of establishing the ingredients of an offence alleged.

(9) Here, in this case the allegation against the accused was that he was trafficking in counterfeit currency notes. If it was so then with diligent and proper investigation it would not have been difficult for the prosecution lo lead evidence to show that he was trafficking in the same and in that event it could be inferred that he knew that the currency notes were counterfeit. It is a fundamental principle of criminal jurisprudence that in a criminal prosecution the onus to prove is upon the prosecution and there is no obligation cast upon the accused of proving facts specially with in his own knowledge. That by itself makes it abundantly obligatory that the provision of Section 106 should be applied to criminal cases with great care and caution though that is not to suggest that it has no application to the criminal cases. On the facts of this case we find that on proper anu intelligent investigation the prosecution could have proved certain facts from which an inference could be drawn that the accused knew the currency notes to be counterfeit. To us it appears that the prosecution was aware of its duty to prove these facts and that is why they had examined one Harminder Singh landlord of the accused with a view to indicate that the accused knew the currency notes to be counterfeit, though unfortunately, for the prosecution he declined to help the prosecution in this regard at trial. Assuming though not granting that such an inference could be raised then, as pointed out by R.N. Aggarwal J. in the case (supra) two inferences can justifiably be drawn namely, that the accused received currency notes believing them to be genuine for unlawful trade and secondly that he knew or had reason to believe these to be forged and intended to use them as genuine and in the absence of any direct proof that he had reason to believe these to be counterfeit the inference favorable to the accused has to be adopted. We, thereforee, are of the view that the learned. Addl. Sessions Judge has rightly acquitted the accused.

(10) We further do not agree with the contention of Mr. Sachdeva that since there is evidence to the effect that at the time of raid while finding himself surrounded by C.B.I, people the accused made an attempt to escape and that from this circumstance inference should be drawn that he knew the currency notes to be counterfeit. We cannot agree in this contention for the simple reason that this can at the most lead to an inference that the accused made an attempt to escape as he was in possession of foreign currency. This circumstance by itself does not lead to the inference that he knew the currency to be forged. With these remarks we find no force in this appeal and it is dismissed.


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