(1) PIRTHI Singh, Auction clerk of Municipal Corporation, Bathinda was tried by learned Additional Sessions judge Bathinda for possession of Rs. 34,900/- counterfeit currency. The learned trial Judge passed judgment against Pirthi singh on November 12, 2003, found him guilty for an offence under Section 489-C of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for 3 years and to pay a fine of Rs. 1000/-, in default of payment of fine he was further sentenced to undergo rigorous imprisonment for six months. Prithi Singh has filed this appeal to challenge his conviction and sentence.

(2) THE investigation against Pirthi Singh began on November 11, 2002 when S. I. Gulzar Singh (P. W. 7) alongwith other members of the police party was present at the kotfatta bus stand and received secret information that pirthi Singh dealt in fake and counterfeit currency and if he was arrested at the bridge of the Kotfatta drain, where he was present, fake. currency could be recovered from him. The case was registered and after associating Vijay Kumar, S. I. Gulzar singh (P. W. 7) and ASI Fulvir Singh (P. W. 6)apprehended Pirthi Singh at the said bridge. Pirthi Singhs search was conducted and 349 notes of Rs. 100/- each were recovered. His further search also revealed a valid driving licence, an arms licence and a gold ring. The currency notes were sent to Reserve Bank of India for verification. The bank reported that the notes were forged notes. It was found that the paper was rough and thick, size of the notes was slightly shorter than that of genuine notes, colour of the notes was different, water mark was not available and the notes were photo copies. The recovery memo of these notes also showed that many notes bore the same number e. g. there were 13 notes bearing the same No. 6sg 333613 and 16 notes bearing No. 7sg 666317 etc. etc. After completion of investigation, pirthi Singh was sent up for trial. At the trial charge was framed against the appellant under Section 489-C, IPC to which he pleaded not guilty and claimed trial.

(3) THE main witnesses examined by the prosecution were HC Manjit Singh (P. W. 1), hc Jagjit Singh (P. W. 2), Raj Singh Assistant manager. Reserve Bank of India {p. W. 3), ASI Baldev Singh (P. W. 4), HC Maghar singh (P. W. 5), ASI Fulvir Singh (P. W. 6) and s. I. Gulzar Singh (P. W. 7 ).

(4) AFTER completion of prosecution evidence, accused was examined without oath under Section 313, Cr. P. C. He denied various items of prosecution evidence appearing against him and stated that a criminal case under Section 409, IPC was got registered against him by the official of the Municipal Corporation while he was work-Ing there but he was acquitted in the said case. It was due to that reason that he was got implicated in this case with the connivance of the police. When called upon to enter his defence, Pirthi Singh examined harbhajan Singh (D. W. 1) who testified regarding the time, date and place of Pirthi singhs arrest and that he had been arrested on January 11, 2002 at 10-15 a. m. from in front of his own house. Similar was statement of Jagjit Singh (D. W. 2 ). Pirthi Singh also examined Nand Kishore of the Telegraph Office to prove dispatch of some telegrams by Pirthi Singhs son Beant Singh on january 11, 2002 at 3. 00 p. m. regarding pirthi Singhs kidnapping by C. I. A. Staff. Beant Singh himself appeared as D. W. 4 who corroborated this fact. Lastly, Vijay Kumar (D. W. 5) testified that on January 11, 2002 he had been called upon by the police to sign certain papers, but he was categoric that no fake currency notes had been recovered from Pirthi Singh on that day. Papers relating to the recovery of the notes in question were got signed From him.

(5) AFTER the closure of the defence evidence learned trial Judge proceeded to pro nounce his verdict and held that prosecution has proved the case regarding the recovery of the currency notes from Firthi singh.

(6) LEARNED counsel for the appellant has argued that both the witnesses who had been examined by the prosecution to prove the recovery were police officers and though an independer it witness had been joined by the police party, namely Vijay Kumar, he was not examined as a witness for the prosecution. The appellant examined Vijay Kumar as a defence witness as D. W. 5 and he stated that no recovery of fake currency had taken place in his presence from the appellant according to the learned counsel, Vljay kumar was a stock police witness who had been cited as a witness in FIR No. 191/2002 (copy of report under Section 173, Cr. P. C being Ex. D-7) FIR No. 211/2000 (copy of fir being Ex. D-8 and list of witnesses be ing Ex. D-9), FIR No. 221 of 2000 (Ex. D-10 and list of witnesses being Ex. D-11 ). The present was Vijay Kumars 4th case in which he was cited as a independent police witness but vijay Kumar had the courage to appear as a defence witness to scuttle the prosecution case.

(7) IT was further argued that telegrams sent by appellants son Beant Singh (D. W. 4)established that the appellant had beer taken into custody at 10. 00 a. m. on January 11, 2002 and fictitious recovery was shown at 5. 30 p. m. on the basis of some secret information. By this time the tele grams had already been dispatched at 3. 00 p. m. Lastly, reference is made to judgment of Honble Supreme Court in Umashankar v. State of Chhattisgarh 2001 (4) Rec Cri R (Criminal) 444 : (2001 Cri LJ 4696) wherein it was held that Section 489-C, IPC requlred a specific type of mens rea. The accused must know or have reasons to believe that the currency notes or bank-notes are forged or counterfeit. Without the aforesaid mens rea, selling, buying or receiving from another person or otherwise trafficking in or using as genuine, forged or counterfeit currency notes or bank notes did not constitute an offence under Section 489-C of the Indian penal Code.

(8) THE recovered currency notes in this case are obviously fake. They are fake to the naked eye and certainly appeared to be fake when examined in Court. As already mentioned above, many of these notes had the same number. The notes were photo copies as per the report of the Reserve Bank of India. Their paper was rough and thick, size of the notes was slightly shorter than that of genuine ones, water mark was not available and the colour of the notes was different.

(9) THE question to be determined in this case would be whether these notes were recovered from the appellant and in the event that recovery is accepted if the accused-appellant possessed requisite mens rea for the offence as laid down in Umashankars case which was in turn based on M. Mammuti v. State of Karnataka, AIR 1979 SC 1705 [LQ/SC/1979/127 ;] ">AIR 1979 SC 1705 [LQ/SC/1979/127 ;] [LQ/SC/1979/127 ;] : (1979 Cri LJ 1383 ).

(10) THE notes were obviously forgeries, this is something which is not in doubt at all. Even a simpleton would not be fooled into believing that these notes were genuine. The size of the notes was different and so was their colour. Many of them had the same number. In this view of the matter possession of such poor quality forged notes would not require any special type of mens rea for the purpose of conviction. Therefore, the principle of law laid down in umashankars case would not apply. The appellant must be presumed to possess knowledge, and also have reasons to believe, that these notes were not genuine.

(11) WHAT is really disconcerting is that the appellant was arrested for the alleged recovery of fake currency at a certain bridge of a drain on the basis of secret information at 5. 00 p. m. On the other hand appellants son Beant Singh had already sent telegrams regarding the appellants arrest at 3. 00 p. m. because he apprehended his fathers implication in a false case. True copies of the telegrams are Ex. D-1 and Ex. D-2 which were proved by Nand Kishore (D. W. 3) and placed on record by Beant Singh (D. W. 4) the sender of the telegrams.

(12) HOWEVER, the appellants innocence is not enhanced by the evidence of Vijay kumar (D. W. 5) who denied that the appellant had been arrested in his presence or that he had signed any recovery memo. This witness had been proved to have been a witness in three cases, details of which are mentioned above. The witness appeared to be a stock witness of the police and for this reason he was probably named as a witness who had accompanied the police party. ASI fulvir Singh (P. W. 6) and S. I. Gulzar Singh (P. W. 7) both unanimously stated that Vijay kumar had been associated with the police party from the bus stand and Vijay Kumar had also attested the recovery memo relating to the recovery of 349 faked notes. But vijay Kumar denied this.

(13) AT the trial, the prosecutor did not examine Vijay Kumar but he was examined as D. W. 5. He supported the defence version that he had been called by the police on January 11, 2002 and his signatures were obtained on certain papers. If Vijay kumar is or was an unreliable witness for the prosecution then his credibility is not going to be enhanced by his appearing for the defence as a defence witness. Therefore, what Vijay Kumar has said cannot be believed. Indeed Vijay Kumar stands marked out as a person of no integrity who first helped the police to prepare false record and then crossed over to help the accused in his defence.

(14) NEVERTHELESS, the entire sequence of events leading to appellants arrest is rather unconvincing. Although the notes were recovered from his possession were obviously fake and bore no resemblance to genuine notes, the circumstance of his arrest at 5. 00 p. m. stood clearly belied by the evidence of his son Beant Singh (D. W. 4) and the evidence of the dispatch of the telegrams. It could have been argued by the State that the accused was in fact arrested sometime earlier at 12 noon or 1 p. m. and his arrest was shown later but this argument would not be available to the State because the time of his arrest is well documented in FIR. Ex. PF. The time of dispatch of telegrams is also mentioned in Ex. D-1 and Ex. D-2. The circumstances of the appellants arrest were certainly different to what was put forth by the prosecution at the trial. In cases of arrest on the basis of the secret information the manner in which the accused is arrested is of prime importance and must be proved satisfactorily. In cases of assault or murder when accused has managed to escape from the spot and arrested after some days a slight discrepancy of a few hours in the time of arrest may be considered insignificant but in the present case the discrepancy is crucial. 18. In view of the above discussion it is held that any one found in possession of currency notes which were obviously fake to the naked eye, presence of special mens rea was not necessary and that Vijay Kumar, a stock witness of the police, was unreliable. It is also held that associating a witness like Vijay Kumar in the raid casts a shadow of doubt and the discrepancy in the time of arrest was an important one and tended to show that the appellant was arrested under altogether different circumstances. This naturally had the effect of demonstrating that the recovery of the notes had not been effected from the appellant in the manner testified by ASI Fulvir Singh (P. W. 6) and S. I. Gulzar Singh (P. W. 7 ). 16. Consequently, this appeal is allowed and the appellant is acquitted of the charge framed against him. Appeal allowed.