MODI, J. - (1.) THIS is an appeal by the accused Tulchasingh and Moolsingh, the former having been convicted under sec. 489-B and the latter under sec. 489-G of the Penal Code, and both having been sentenced to five years' rigorous imprisonment and in addition to a fine of Rs. 1000/- and in default to one year's further rigorous imprisonment each, by the judgment of the Sessions Judge, Balotra dated the 23rd December, 1963. The appellant Moolsingh was acquitted under sec. 489 B with which he was also charged.
(2.) THE case for the prosecution is this. It is alleged that on the 28th September, 1960, a Special Excise Raid Party organised by the excise Inspector Balotra Trilokinarain Temini P. W. 4 and Tejraj, Excise Inspector, Sojat, P. W. 5, raided the Dhani of the accused Tulchasingh as they suspected that he was manufacturing and selling illicit liquor and also selling opium. Tulchasingh was away from his Dhani but the other accused Moolsingh was present. On a search of the Dhani having been made, some illicit liquor and opium are said to have been discovered but with that we are not concerned, and what is of importance to mention is that seventeen counterfeit currency notes of the denomination of Rs. 100/- each were found lying in a box in Tulchasingh's 'jhumpa', the key of which was with the accused Moolsingh who gave it to the excise officers. This find was accompanied by a receipt Article 1. THE receipt is dated the 2nd December, 1956, add purports to have been issued by the Collector, Barmer, to Tulchasingh in respect of a certain licence-fee paid by him for fire-arm. A first information report (Ex. P-4) was then lodged on the 29th September, 1960, at police station Mandli. THE notes were sealed and were in due course sent to the Master, Currency-Note Press, Nasik, for examination. THE Master found vide his report Ex. P-3 that the notes were clearly and unmistakably forged and counterfeit. Both the accused were in due course prosecuted and have been convicted as already stated above. Both appellants denied having committed any offence though it was admitted that the Dhani belonged to the accused Tulchasingh. The other accused Moolsingh is the former's maternal uncle's son and had been staying with him for some months. The defence story put shortly was that the Jhumpa from which the currency notes were recovered was under the exclusive possession of one Subhan who was a hall of Tulchasingh and was in his employ and had been living for some time with him and that the box from which the currency notes had been recovered also belonged to Subhan and that neither of the accused had any knowledge thereof. The accused Moolsingh's further version was that when the excise officers arrived at the Dhani of Tulchasingh and wanted to take a search of it, he said that he had no key with him but could bring it from Subhan who had gone to the jungle for grazing cows and when asked to do so, he brought the key and gave it over to the raiding party. The accused did not lead any evidence in their defence. Now, there is no controversy that certain currency notes namely Art. 2 to 18 were recovered from Tulchasingh's Dhani from a locked box on the 28th September, 1960. What is, however, strenuously contended before me is that there is no proof, worth the name, so far as Tulchasingh is concerned that he had received the currency notes in question knowing or believing them to be counterfeit, that being the only offence with which he was charged under sec. 489b, and that so far as the other accused Moolsingh is concerned, there was no proof whatsoever that the currency notes were recovered from the possession of this accused as neither the Dhani nor the box belonged to him. As already stated, Moolsingh has been convicted for being found in possession of the forged or counterfeit currency notes knowing or having reason to believe the same to be forged under sec. 489 C, and he was acquitted under sec. 489 B. I shall now take up the cases of each of the accused separately. Turning first to the case of Tulchasingh, he stands charged with and convicted for guilty receipt of a number of counterfeit currency notes. The prosecution case, put briefly, was that he had received these notes from one Subhan who was a Hali of this accused at the relevant time and that at the time Subhan passed these notes on to the accused, the latter knew from the very face of the notes in question that they were counterfeit, and, therefore, he told Subhan that they would not pass, but the latter told the accused that if they did not pass, he could keep them with himself. In support of its case, the prosecution relies on the sole evidence of P. W. 1 Doda who was in the employ of this accused at that time. This witness had been examined under sec. 164 Cr. P. C. and in the course of that statement, Doda clearly supported the prosecution case. Unfortunately for the prosecution when this witness was examined at the trial, he, rather cleverly gave a twist to his earlier statement and deposed that Tulchasingh had sold a number of cows to Subhan presumably for a sum of Rs. 1700/-, and that the latter had paid the price in the shape of currency notes and then Tulchasingh told Subhan that the notes would not pass, whereupon Subhan told him that he might try and pass them on, and if they did not, he might keep them with himself. The witness was confronted with his statement made under sec. 164 Cr. P. C. where he had not said anything of the kind. He was also contradicted with certain other things which he had said in the course of that statement. Thus he was asked whether he had stated in his earlier statement that Subhan had told Tulchasingh that when the latter might go to sell opium to Mewar, he should try and pass on those notes, and that if he should be successful in doing so, then they might share the proceeds half and half. The witness denied that he had ever said so. Again he was asked whether he had said that he had seen Tulchasingh and Moolsingh manufacturing and selling illicit liquor or selling illicit opium. The witness also denied that he had ever said so. In his cross examination by learned counsel for the accused, the witness went on to state that the Jhumpa from which the box containing the notes was recovered was exclusively in the possession of Subhan, and that whenever he used to go to graze cows in the jungle, it was he who put his lock on to that Jhumpa and took away the key himself. He also stated that Subhan used to keep a peti, or, a box of iron, in the Jhumpa and that he put his own lock on that. We further have it from him that on the date Tulchasingh's Dhani was searched, Moolsingh came to him and Subhan and told the latter that the raid party wanted to have the keys of the Jhumpa and the Peti, whereupon Subhan gave the keys to Moolsingh. The witness further admits that eversince that date Subhan did not return to the Dhani and fled from the jungle and that it was he who brought Subhan's cows from the jungle to the Dhani. I have carefully scrutinised the evidence of this witness and find that no reliance can be put on it. He has clearly lied in important respects and the position is inescapable that either he was lying when he gave his statement before the committing court under sec. 164 Cr. P. C. or he was lying when he was examined at the trial. Be that as it may, the statement given by the witness under sec. 164 Cr. P. C. cannot be used as substantive evidence in the case, and the only legitimate use to which it can be put is to show that the witness was not a truthful one. The learned trial Judge himself seems to have been conscious of the true state of law in this connection ; but somehow it does appear that he was greatly impressed by the statement made by the witness under sec. 164 Cr. P. C. and that was how he was prepared to indirectly rely on it and come to the conclusion that the accused Tulchasingh was guilty of having "received" counterfeit notes knowing or having reason to believe that they were counterfeit. This, in my opinion, was hardly correct. As there is no other evidence against Tulchasingh in this connection, I find it extremely difficult to place any reliance on him so as to convict this accused of the offence with which he was charged under sec. 489-B. There is yet another difficulty in the way of convicting him under this section and that is that there is absolute lack of evidence on this record that the currency notes which were recovered from Tulchasingh's Dhani were the very ones which he had received from Subhan. No prosecution witness including P. W. Doda has said so, and in these circumstances, I find it extremely difficult to uphold the conviction of Tulchasingh under sec. 489-B. That, however, does not conclude the matter because the learned Deputy Government Advocate has strenuously pressed before me that even if I came to the above conclusion, there should be no difficulty in convicting this accused under sec. 489-C that is, for his having been found in possession of the counterfeit notes knowing or having reason to believe the same to be counterfeit and intending to use them as genuine ones. My attention has been drawn in this connection to that portion of the trial court's judgment wherein the learned Judge below himself came to the conclusion that it was amply proved on the evidence that it was Tulchasingh who was in possession of the counterfeit notes. The learned Judge, however, held that even though an offence under sec. 489-C could be on evidence held to be proved against this accused, the difficulty in the way of convicting him under that section was that there was no charge against him under that section. He also referred in this connection to the further ingredient of sec. 489-C that the accused must have had an intention to pass on the currency notes as genuine, which ingredient was not required under sec. 489-B. On a careful consideration of this aspect of the case, I have, however, come to a different conclusion and would refer in this connection to secs. 238 and 237 Cr. P. C. Sec. 236 lays down that where it is doubtful on facts which can be proved as to which offence has been committed by a particular accused, then the accused must be charged with having committed all or any of such offences or he may be charged in the alternative with having committed some of the said offences. Sec. 237 then enacts that if in a case provided for under sec. 236, the accused is charged with one offence but it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he may not have been charged with it. Now applying these sections to the present case, it docs appear to me that on the facts which were sought to be proved in this case, it was a matter of some doubt as to whether this accused could be charged under sec. 489-B, that is, of guilty receipt of counterfeit notes knowing or having reason to believe that they were counterfeit, or that he was in addition or alternatively guilty of mere possession thereof under sec. 489-G. In these circumstances, the accused Tulchasingh could have certainly been charged under both or either of these sections just as Moolsingh was. But by some process of reasoning which is not easy to understand, this accused was charged under sec. 489-B only. If that is the correct analysis of the present case, as I think it is, the present accused can be convicted in law of the other offence for which he might have been charged but was not, provided ofcourse that it appears from evidence that he committed it, and this must be subject to the further fundamental consideration that no prejudice is caused to the accused thereby. Now. , it is admitted in this case that the Dhani from which the counterfeit notes in question were recovered belonged to Tulchasingh. It is correct that at the time the recovery was made, there were two other persons namely the accused Mool Singh and Subhan who are said to be living in it. Subhan, as I have already stated, has bolted off. It is nobody's case that the box belonged to Moolsingh and I am not at all satisfied that it was the property of Subhan either. The one crucial circumstance which resolves all reasonable doubts in this connection is that in the box along with the currency notes was also found the receipt in favour of Tulchasingh which was dated some four years before the present incident took place, and it is well nigh impossible to accept that Tulchasingh had any reason to give or Subhan had any like reason to receive that receipt. That the notes and the receipt were recovered from the same box is indeed admitted by the accused Tulchasingh himself. In these circumstances, I have no hesitation in coming to the conclusion that the currency notes were in the possession of Tulchasingh having been recovered from his locked box and there is no satisfactory rebuttal of that. How he received these notes is not the gist of the offence under sec. 489-C and, therefore, we are not concerned with that question. All that is further necessary is to find out is whether the possession of Tulchasingh was guilty in the sense that he knew or had reason to believe that the said notes were forged or counterfeit and whether he intended to use the same as genuine or might be used as genuine. These ingredients are satisfactorily proved from the material on the record. Tulchasingh could not but have known that the notes were forged, for they appeared to be so on the very face of them, as the report of the Master of the Currency Note Press dated the 30th November, 1960 Ex. P-3 shows. The currency notes were a very crude type of laboured imitation manufactured by letterpress method. They have been printed from blocks which have been manufactured from negatives obtained by photographing a genuine note through colour filters, and as colour separation was difficult to obtain, a lot of fine work has been done by hand engraving on the blocks. There can be no doubt, therefore, that Tulchasingh knew or had reason to believe that the notes were forged. This ingredient is indeed common to both secs. 489-B and 489-C and, therefore, it need not cause any difficulty. The only further question which has to be considered in this connection is whether it may be held on the material on the record that this accused had intended to use the notes in question as genuine or had intended that they might be used as genuine. The answer to this question in my opinion would also be in the affirmative in the peculiar circumstances of this case. In the first place, it is not a case of the recovery of a stray one or two notes nor of such notes mixed with any genuine ones. The notes recovered were as many as seventeen. In the second place, they were of the same type, design or pattern. In the third place, they were recovered from a locked box and further they had been kept there in a paper packet. All this circumstantial evidence is enough, in my opinion, to lead any reasonable man to conclude that they must have been so kept to be used as genuine if and when an opportunity arose to do so. I have already stated that there is no doubt whatever that the Dhani from which they were recovered, belonged to the accused Tulchasingh, and, to my mind, the story trotted out by the accused or P. W. Doda that it was in the exclusive possession of Subhan is a pure myth. Add to all this the circumstances to which I have already referred, namely, that along with the currency notes was found the receipt in the name of this very accused in connection with a licence for a firearm of the year 1956. From the survey that I have made of the circumstantial evidence in the case, I have no manner of hesitation in concluding that it can be safely held in the circumstances of this case that the accused Tulchasingh is proved to have been in possession of the forged currency notes within the meaning of sec. 489-C, and that all the ingredients of that section are amply fulfilled. I would also like to point out that sec. 489-C is a minor offence as compared with sec. 489-B, for the maximum punishment provided under the former section is only seven years imprisonment whereas under the latter section, the punishment provided is 10 years or imprisonment for life, and further I can see no prejudice whatever if this accused is held guilty under sec. 489-C even though he was not charged under that section.
(3.) FOR the (reasons mentioned above I hold that the accused Tulchasingh is guilty of an offence under sec. 489 C and sentence him to three years' rigorous imprisonment. This brings me to the other accused Moolsingh. This accused has been convicted under set. 489 C on the charge that he was found in guilty possession of the currency notes in question. The only evidence against him is that it was he who gave the key of the Jhumpa and the box to the raiding party, but as found by the learned Judge himself, there is no direct evidence that he had knowledge that the currency notes were counterfeit. As already stated, Moolsingh was a relation of Tulchasingh and had come to stay there more or less as a guest. I have also found and so did the learned trial Judge that the box from which the currency notes were recovered belonged to Tulchasingh and there is no evidence whatsoever that it belonged to the present accused Moolsingh. The case against this accused, therefore, as to his guilty possession cannot, in my opinion, be sustained in law, the more so as I have positively found that it was Tulchasingh who was in possession of the corre-ncy notes. The learned trial Judge seems to have been greatly influenced in coming to the conclusion to which he did, because Moolsingh had lied in certain important respects, namely (1) when he stated that the Jhumpa and the box were of Subhan and the latter was the owner thereof and (2) when he further stated that he had brought the keys from Subhan from the jungle on a demand by the raiding party although he had the keys with himself. It may be accepted that Moolsingh indulged in these lies. But the explanation for that is not difficult to find and it might very well have been that he said so because he wanted to save his cousin Tulchasingh from a difficult situation in which he had been caught. That in my opinion is not satisfactory reason for holding him guilty of an offence under sec. 489-C. I. P. C. In these circumstances, I am definitely of the opinion that his conviction was wrong and must be set aside. For the reasons mentioned above, I partly allow this appeal, set aside the conviction and sentence of the accused Moolsingh and order that he be set at liberty unless he is required in any other connection. As for the other accused Tulchasingh, I alter his conviction from sec. 489 B to sec. 489 C. I. P. C. and sentence him to three years' rigorous imprisonment. .;