1. Heard with the aid of case diary.
IA Nos.4411/2018 and 4412/2018, applications for urgent hearing and hearing during summer vacations rendered infructuous, therefore, both the IAs are closed.
Also heard on IA No.3211/2018, an application for suspension of sentence on behalf of appellant No.2 Shakir under Section 389 (1) of Cr.P.C.
Appellant is convicted for the offence under Section 489-B and 489-C of the IPC and sentenced to undergo 7-4 years RI respectively and fine of Rs.10,000/- and 5,000/- respectively with default stipulation. According to the prosecution case, Shakir along with three other co-accused persons have been convicted for having in his possession fake currency notes and trying to use that currency notes.
Learned counsel for the appellant submits that when the police allegedly recovered 22 fake currency notes from his possession. Shakir was sitting in the car and Mohsin was standing outside the car. T
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here is no evidence that Shakir was trying to use those currency notes, therefore, at the most offence against him can be held proved under Section 489-C of the IPC, which is a bailable offence. He was on bail during trial and he is in custody since the date of judgment i.e. 29.12.2017.
Learned counsel for the appellant placed reliance on the judgment of Ganesh @ Karan Mali Vs. State of MP reported in
2001 (I) MPJR 263 and also on State (Delhi Administration) Vs. Pawan Kumar Garg reported in SSC Online 427 (copy of which was supplied by learned counsel for the appellant) and particularly pointed out paragraph no.12 of judgment of Ganesh (supra) and page 431 and 432 of the judgment of Pawan Kumar (Supra). He further submits that co-accused persons Idris and Shakeel have already been granted suspension by this Court in CrA Nos.510/2018 and 398/2018 vide order dated 23.04.2018.
Paragraph No.12 of the judgment of Ganesh @ Karan Mali Vs. State of MP states about the ingredients to be proved by the prosecution to establish charge under Section 489-C while observation of the Hon'ble Supreme Court at page 431 and 432 of the judgment of Pawan Kumar (supra) are that the burden to prove the charge under Section 489-B lies on the prosecution and it cannot be shifted and support of Section 106 of the Evidence Act can be taken in some special circumstances, which has to be established by the prosecution. Referred paragraph of this judgment reads thus:-
'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 explanation 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, therefore, 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.
' Learned public prosecutor has opposed the prayer. He drew my attention towards paragraph nos.31, 32, 33 and 34 of the impugned judgment and submitted that witnesses Naresh Sitlani PW/1 Manish Bharti PW/4 have deposed before the Court that on the relevant point of time some person purchased a mobile from his shop and for payment he use two fake currency notes. These notes were later recovered by the police from his possession. He further submits that the case of the prosecution is that the accused persons used counterfeited currency notes to purchase Samsung mobile. He submits that Naresh and Manish has very well established the fact that the accused persons Shakir and Mohsin were well aware about the counterfeiting of the currency notes even then they used them as genuine. They have not even had in possession the counterfeited currency notes but also used them as genuine, therefore, they are not entitled for suspension of jail sentence.
I have considered the submissions of learned counsel for the appellants.
Considering the evidence produced by the prosecution and in light of the judgment placed by the appellant on record as referred above and other facts and circumstances of the case, I am of the opinion that the appellant has made out a case for suspension of jail sentence. Thus, the application (IA No.3211/2018) for suspension of sentence is allowed. It is directed that on deposition of fine amount and also on furnishing personal bond of Rs.30,000/- (Rupees Thirty Thousand Only) with one solvent surety in the like amount to the satisfaction of the trial Court for his appearance before this Court/Registry on 28/11/2018 and on all other subsequent dates, as may be fixed by the Registry in this behalf, the execution of substantial jail sentence imposed on the appellants shall remain suspended, till final disposal of this appeal.
A copy of this order be sent to Court concerned for compliance.
List for final hearing in due course.