Reserved On: 23.12.2025

Delivered On:07.01.2026

IN THE HIGH COURT OF UTTARAK HAND AT NAINITAL

Criminal Appeal No. 98 of 2017

Balmiki Chaudhary and another .... Appellants

Vs.

State of Uttarakhand ....Respondent

Present:

Ms. Meena Bisht, Advocate for the appellants.

Mr. Pankaj Joshi, A.G.A. for the State.

with

Criminal Appeal No. 99 of 2017

Gariba Mahto .... Appellant

Vs.

State of Uttarakhand ....Respondent

Present:

Ms. Pushpa Joshi, Senior Advocate, assisted by Ms.

Nipush Mola Joshi, Advocate for the appellant.

Mr. Pankaj Joshi, A.G.A. for the State.

JUDGMENT

Coram: Hon’ble Ravindra Maithani, J.

Hon’ble Alok Mahra, J.

Per: Hon’ble Ravindra Maithani, J.

Since both these appeals arise from common judgment

and order, they are heard together and decided by this common

judgment.

2. Both these appeals are preferred against the judgment

and order dated 25.03.2017/29.03.2017, passed in Sessions Trial No.

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12 of 2016, State Vs. Balmiki Chaudhari and others, by the court of

Sessions Judge, Almora. By it, the appellant Gariba Mahto has been

convicted under Sections 489B and sentenced to undergo

imprisonment for life. The appellant Gariba Mahto has also been

convicted under Section 420 IPC and sentenced to rigorous

imprisonment for seven years and Rs. 5000/- as fine. In default of

payment of fine, it is directed that the appellant Gariba Mahto shall

further undergo simple imprisonment for three months. The appellant

Gariba Kahto has been convicted under Section 489C IPC also, but he

has not been sentenced thereunder.

3. The appellants Balmiki Chaudhari and Samar Mandal @

Sumor were convicted and sentence under Section 489C IPC and

sentenced to undergo rigorous imprisonment for a period of seven

years each.

4. Briefly stated, according to the prosecution case, on

03.08.2016, the appellant Gariba Mahto visited the shop of the PW1

Omnath Arya in Dwarahat. He purchased slippers for Rs.100/- and

gave a Rs.1000/- currency note, took slippers and got Rs.900/- back.

Subsequently, PW1 Omnath Arya became suspicious about the

genuineness of Rs.1000/- currency note. He consulted the neighbour

shopkeepers as well as PW5 Ashish Verma, the President of Vyapar

Mandal. Then he came to know that, in fact, Rs.1000/- currency note,

which was given to him by the appellant Gariba Mahto was

counterfeit. He lodged a report Ex. A1 at Police Station Dwarahat.

Based on which Case Crime No. 9 of 2016, under Section 420, 489B

and 489C IPC was lodged against unknown persons (it may be noted

that initially, the appellants were not known). Chik FIR is Ex. A15.

According to the prosecution case, on 04.08.2016, police got an

information that the persons, who were using counterfeit currency as

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genuine were spotted somewhere near Bhumiya Temple. The police

party tried to get independent witnesses and in that process, they

secured the presence of PW5 Ashish Verma. Thereafter, PW2 SI,

Darban Singh alongwith PW3 Jeewan Chandra Fulera, PW4

Kunwarpal Singh Dhami and PW5 Ashish Verma proceeded towards

Malli Marai, Dwarahat. They took other police personnel with them

and spotted three persons. PW5 Ashish Verma identified those persons

as the persons who were using counterfeit currency notes in the

Dwarahat market. They were intercepted and from the search of the

appellant Balmiki Chaudhary, 50 counterfeit currency notes of

Rs.1000/- each and other articles; from the possession of the

appellant Gariba Mahto 50 counterfeit currency notes of Rs.1000/-

alongwith other articles and from the possession of the appellants

Samar Mandal @ Sumor, 100 counterfeit currency notes of Rs.1000/-

alongwith other articles were recovered. A recovery memo Ex. A4 was

prepared. The counterfeit currency notes were sent for forensic

examination. The report was received, which revealed that the

recovered currency notes were counterfeit.

5. After investigation, charge sheet was submitted against

the appellants under Section 420, 489B and 489C IPC. On

16.12.2016, charge under Sections 420 read with 34, 489B read with

34, 489C read with 34 IPC were framed against the appellants. To

which they denied and claimed trial.

6. In order to prove its case, prosecution examined eight

witnesses, namely, PW1 Omnath Arya, PW2 SI Darban Singh, PW3

Constable Jeevan Chandra Fulera, PW4 SI Kunwarpal Singh Dhami,

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PW5 Ashish Verma, PW6 SI Ashok Kumar Singh, PW7 Kundan Singh

and PW8 Chandra Mohan Singh.

7. After prosecution evidence, the appellants were examined

under Section 313 of the Code. According to them, witnesses have

falsely deposed against them.

8. After hearing the parties, by the impugned judgment and

order, the appellants have been convicted and sentenced, as stated

hereinbefore. Aggrieved, the appellants have preferred these appeals.

9. Heard learned counsel for the parties and perused the

record.

10. Learned counsel appearing for the appellant submits that

entire prosecution case is false. She would submit that no Test

Identification Parade was done. The FIR was unnamed. PW1 Omnath

Arya had no occasion to identify the appellant Gariba Mahto in the

court. She would refer to the statement of PW1 Omnath Arya and PW5

Ashish Verma to argue that, in fact, their statements are

contradictory, with regard to the number of persons who visited the

shop of the PW1 Omnath Arya on 03.08.2016, when allegedly the

counterfeit currency notes were used. She would also raise the

following points in her submissions:-

(i) If the appellant Gariba Mahto had purchased

slippers on 03.08.2016 from the shop of PW1

Omnath Arya, they would have been recovered from

him when allegedly search was made from him on

04.08.2016, but it was not recovered. It doubts the

prosecution case.

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(ii) The Forensic Science Laboratory report was not put

to the appellant Gariba Mahto under Section 313 of

the Code, therefore, the Forensic Science Laboratory

report cannot be read into evidence and without it

the prosecution fails to prove its case beyond

reasonable doubt.

11. Learned counsel appearing for the appellants Balmiki

Chaudhary and Samar Mandal @ Sumor submits that they are not

named in the FIR; no TIP was done; FSL report was not put to these

appellant in their examination under Section 313 of the Code;

therefore, the prosecution failed to prove its case beyond reasonable

doubt.

12. Learned State counsel submits that the appellant Gariba

Mahto has approached the shop of PW1 Omnath Arya on 03.08.2016

and had purchased slippers for Rs.100/-. He gave Rs1000/- currency

note and took Rs.900/- in return. It is argued that Rs.1000/- currency

note was counterfeit, of which report was lodged by PW1 Omnath Arya

and on 04.08.2015; all the appellants were arrested. It is argued that

the statement of PW 5 Ashish Verma is much reliable. He is the

President of Vyapar Mandal. He has also stated that on 03.08.2016,

three persons had visited his shop to buy something, and those were

the appellants.

13. Before the arguments are appreciated, it would apt to

examine as to what the witnesses have stated.

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14. PW1 Omnath Arya has proved the FIR Ex. A1. According

to him, a person had purchased slippers from his shop on 03.08.2016

and gave Rs.1000/- currency note and he returned Rs.900/- along

with the slippers. Subsequently, he suspected the genuineness of

Rs.1000/- currency note. He consulted the neighbour shopkeepers

and PW5 Ashish Verma, who told him that Rs.1000/- currency note

was counterfeit. Thereafter, he gave a report Ex. A1 to the police. He

also gave Rs.1000/- currency note to the police, of which, a recovery

memo Ex. A2 was prepared. He proved the currency note as well.

15. PW2 SI Darban Singh investigated the case. He proved the

chik FIR. According to him, after taking over the investigation, he

proceeded to investigate the matter. He got an information that the

persons who were using counterfeit currency notes are waiting for the

vehicle therefore they searched for the independent witness.

Thereafter, PW5 Ashish Verma, President of Vyapar Mandal agreed to

join them. They all reached near Bhumiya Temple gate. PW5 Ashish

Verma identified three persons as the persons, who were using

counterfeit currency notes. They were apprehended. Thereafter, from

their possession counterfeit currency notes total amounting to Rs. 2

Lakh were recovered and other articles were also recovered. He has

proved all those articles, counterfeit currency notes etc. He proved the

recovery memo Ex. A4, which was prepared at the spot. He has also

proved those currency notes, as well, which, according to him, he has

sealed.

16. PW3 Constable Jeevan Chandra Fulera, PW4 SI

Kunwarpal Singh Dhami and PW5 Ashish Verma also joined PW2 SI

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Darban Singh on the date, when recovery was made. They have

corroborated the statement of PW2 Darban Singh.

17. PW6 SI Ashok Kumar took the investigation on

06.08.2016. He prepared the site plan Ex. A14. According to him,

thereafter, he was transferred.

18. PW7 Kundan Singh has proved the chik FIR, Ex. A15.

19. PW8 Chandra Mohan Singh finally completed the

investigation and submitted charge sheet Ex. A16.

20. Appellant Gariba Mahto was convicted under Sections

420, 489B and 489C IPC, but he has been sentenced under Sections

489B and 420 IPC and appellants Balmiki Chaudhari and Samar

Mandal @ Sumor were convicted and sentenced under Section 489C

IPC. These Sections are as follows:-

“420. Cheating and dishonestly inducing delivery of

property.- Whoever cheats and thereby dishonestly induces the

person deceived to deliver any property to any person, or to make,

alter or destroy the whole or any part of a valuable security, or

anything which is signed or sealed, and which is capable of being

converted into a valuable security, shall be punished with

imprisonment of either description for a term which may extend to

seven years, and shall also be liable to fine.

489-B. Using as genuine, forged or counterfeit currency

notes or bank notes.- Whoever sells to, or buys or receives from, any

other person, or otherwise traffics in or uses as genuine, any forged or

counterfeit currency-note or bank- note, knowing or having reason to

believe the same to be forged or counterfeit, shall be punished with

imprisonment for life, or with imprisonment of either description for a

term which may extend to ten years, and shall also be liable to fine.

489-C. Possession of forged or counterfeit currency-notes

or bank-notes.- 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

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with imprisonment of either description for a term which may extend

to seven years, or with fine, or with both.”

21. On behalf of the appellants it is also argued that mere

possession or use of counterfeit currency note is not sufficient to

convict under Sections 489B and 489 C IPC. It is argued that mens

rea also needs to be proved. The prosecution has to prove that the

accused knew or he has reason to believe that currency notes are

forged or counterfeit. It is argued that unless it is proved, conviction

under Sections 489B and 489C IPC, cannot be had.

22. A bare perusal of Sections 489B and 489C IPC makes it

clear that in order to establish these offences, it has to be proved that

the accused knew or he had reasons to believe that the currency notes

are forged or counterfeit. The mental state of the accused needs to be

established.

23. In the Code, there is no presumption with regard to

culpable mental state of an accused from whose possession counterfeit

currency notes are recovered. The question that arises for

consideration is, can there be any presumption? Under certain

statutes, there are presumptions which are given under certain

circumstances viz. Section 35 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 and Section 30 of the Protection of Children

From Sexual Offences Act, 2012 make presumption with regard to

mental state. These sections are as follows:-

“Narcotic Drugs and Psychotropic Substances Act, 1985

35. Presumption of culpable mental state. - (1) In any

prosecution for an offence under this Act which requires a culpable

mental state of the accused, the Court shall presume the existence of

such mental state but it shall be a defense for the accused to prove

the fact that he had no such mental state with respect to the act

charged as an offence in that prosecution.

9

Explanation.- In this section “culpable mental state” includes

intention, motive knowledge of a fact and belief in, or reason to

believe, a fact.

(2) For the purpose of this section, a fact is said to be proved

only when the court believes it to exist beyond a reasonable doubt and

not merely when its existence is established by a preponderance of

probability.

Protection of Children From Sexual Offences Act, 2012

30. Presumption of culpable mental state. - (1) In any

prosecution for any offence under this Act which requires a culpable

mental state on the part of the accused, the Special Court shall

presume the existence of such mental state but it shall be a defence

for the accused to prove the fact that he had no such mental state

with respect to the act charged as an offence in that prosecution.

(2) For the purposes of this section, a fact is said to be proved

only when the Special Court believes it to exist beyond reasonable

doubt and not merely when its existence is established by a

preponderance of probability. Explanation.-In this section, “culpable

mental state” includes intention, motive, knowledge of a fact and the

belief in, or reason to believe, a fact.”

24. In the Indian Penal Code, there is no such presumption, with

regard to the mens rea for offences under Sections 489B and 489 C IPC.

25. In the case of K. Hashim Vs. State of Tamil Nadu, (2005) 1 SCC

237, the Hon’ble Supreme Court discussed the provisions of Sections 489 B

and 489 C IPC and held that “these provisions make possession for using

of forged and counterfeit notes or banknotes punishable. Possession and

knowledge that the currency notes are counterfeited notes are

necessary ingredients to constitute offence under Section 489 B and

489C IPC.”

26. In the case of Umashanker Vs. State of Chattisgarh,

(2001) 9 SCC 642, a student of 18 years, according to the prosecution,

purchased one kilogram of mango costing Rs 5 and he paid a fake

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currency note of Rs 100. From his possession 13 fake currency notes

were also recovered. In that case, the trial court as well as the High

Court presumed the mens rea, which was essential for attracting the

provisions of Sections 489B and 489C IPC. The Hon’ble Supreme

Court held that this presumption as drawn is not warranted under

Section 4 of the Indian Evidence Act, 1872. In para 8 of the judgment,

Hon’ble Supreme Court observed as hereunder:-

“8. A perusal of the provisions, extracted above, shows

that mens rea of offences under Sections 489 -B and 489-C is

“knowing or having reason to believe the currency notes or banknotes

are forged or counterfeit”. Without the aforementioned mens rea

selling, buying or receiving from another person or otherwise

trafficking in or using as genuine forged or counterfeit currency notes

or banknotes, is not enough to constitute offence under Section 489- B

IPC. So also possessing or even intending to use any forged or

counterfeit currency notes or banknotes is not sufficient to make out

a case under Section 489-C in the absence of the mens rea, noted

above. No material is brought on record by the prosecution to show

that the appellant had the requisite mens rea. The High Court,

however, completely missed this aspect. The learned trial Judge on

the basis of the evidence of PW 2, PW 4 and PW 7 that they were able

to make out that the currency note alleged to have been given to PW 4

was fake, “presumed” such a mens rea. On the date of the incident

the appellant was said to be an eighteen-year-old student. On the

facts of this case the presumption drawn by the trial court is not

warranted under Section 4 of the Evidence Act. Further it is also not

shown that any specific question with regard to the currency notes

being fake or counterfeit was put to the appellant in his examination

under Section 313 of the Criminal Procedure Code. On these facts, we

have no option but to hold that the charges framed under Sections

489-B and 489-C are not proved. We, therefore, set aside the

conviction and sentence passed on the appellant under Sections 489-

B and 489-C IPC and acquit him of the said charges (see: M.

Mammutti v. State of Karnataka [(1979) 4 SCC 723 : 1980 SCC (Cri)

170 : AIR 1979 SC 1705] ).”

27. On behalf of the State, it is argued that large amount of

fake currency notes were recovered from these appellants; they have

kept counterfeit currency notes and genuine currency notes separate;

there conduct, it is argued is relevant; they visited the shop of PW5

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Ashish Verma, but suspecting apprehension they moved. It is argued

that these factors establish that the appellants did know or they had

reasons to believe that they were in possession of counterfeit currency

notes. It is argued that, in fact, mental state can be inferred by the

action. In fact, the court below also presumed the mens rea factor,

which is necessary for attracting the provisions of Section 489B and

489C IPC.

28. In the case of Umashanker (supra), from a student of 18

years, 14 fake currency notes were recovered. The Hon’ble Supreme

Court did not presume that the student had knowledge that the

currency notes were counterfeit.

29 In the instant case also, merely because from the

possession of the appellants allegedly large number of currency notes

were recovered, it cannot be said that they had reason to believe that

the currency notes were counterfeit. There cannot be such

presumption raised, unless statute provides for it. Therefore, this

Court is of the view that, in fact, on this count alone, the conviction is

bad in the eye of law.

30. According to PW1 Omnath Arya, the fake currency note

was given to him on 03.08.2016. FIR was lodged on 04.08.2016. PW1

Omnath Arya says that when he went to give the report at Police

Station, police had shown him multiple counterfeit currency notes

(Para 10). It doubts the prosecution case also. T he FIR was lodged at

11:41 a.m. on 04.08.2016, how the police would show multiple

counterfeit currency notes to PW1 Omnath Arya at the police station

12

when he lodged the FIR? How the police got those counterfeit currency

notes?

31. PW5 Ashish Verma tells that he was told by PW1 Omnath

Arya that some persons had visited his shop and while purchasing the

slippers, he was given a counterfeit currency note. According to PW5

Ashish Verma, he was also told by PW1 that those three persons were

from Bihar not from Uttarakhand. This is not the statement of PW1

Omnath Arya. PW1 Omnath Arya has only stated that a person had

visited his shop on 03.08.2016, not three or more persons. Where is

the question of three persons visiting the shop of PW1 Omnath Arya as

stated by PW 5 Ashish Verma?

32. What is important in the instant case is Test Identification

Parade of the appellants was not done. Test Identification Parade is

not, in fact, substantive evidence, but test identification guides the

police in the investigation. What is tried to be proved in the court is

that PW1 Omnath Arya did identify the appellant Gariba Mahto. The

dock identification may also be relied upon. In the case of Sidhartha

Vashisht alias Manu Sharma Vs. State (NCT of Delhi), (2010) 6 SCC 1,

the Hon’ble Supreme Court discussed the law on this point and held

in para 258 of the judgment that “that it is dock identification

which is a substantive piece of evidence. Therefore even where no

TIP is conducted no prejudice can be caused to the case of the

prosecution.”

33. In the case of Sidhartha Vashisht (supra), the Hon’ble

Supreme Court has referred the law, as laid down in the case of

13

Munshi Singh Gautam Vs. State of M.P.,(2005) 9 SCC 631 and

observed as follows:-

“256. The law as it stands today is set out in the following

decisions of this Court which are reproduced as hereinunder:

Munshi Singh Gautam v. State of M.P. [(2005) 9 SCC 631 :

2005 SCC (Cri) 1269] : (SCC pp. 642-45, paras 16-17 & 19)

“16. As was observed by this Court in Matru v. State of

U.P. [(1971) 2 SCC 75 : 1971 SCC (Cri) 391] identification tests do not

constitute substantive evidence. They are primarily meant for the

purpose of helping the investigating agency with an assurance that

their progress with the investigation into the offence is proceeding on

the right lines. The identification can only be used as corroborative of

the statement in court. (See Santokh Singh v. Izhar Hussain [(1973) 2

SCC 406 : 1973 SCC (Cri) 828] .) The necessity for holding an

identification parade can arise only when the accused are not

previously known to the witnesses. The whole idea of a test

identification parade is that witnesses who claim to have seen the

culprits at the time of occurrence are to identify them from the midst

of other persons without any aid or any other source. The test is done

to check upon their veracity. In other words, the main object of

holding an identification parade, during the investigation stage, is to

test the memory of the witnesses based upon first impression and also

to enable the prosecution to decide whether all or any of them could

be cited as eyewitnesses of the crime. The identification proceedings

are in the nature of tests and significantly, therefore, there is no

provision for it in the Code and the Evidence Act. It is desirable that a

test identification parade should be conducted as soon as after the

arrest of the accused. This becomes necessary to eliminate the

possibility of the accused being shown to the witnesses prior to the

test identification parade. This is a very common plea of the accused

and, therefore, the prosecution has to be cautious to ensure that

there is no scope for making such an allegation. If, however,

circumstances are beyond control and there is some delay, it cannot

be said to be fatal to the prosecution.

17. It is trite to say that the substantive evidence is the

evidence of identification in court. Apart from the clear provisions of

Section 9 of the Evidence Act, the position in law is well settled by a

catena of decisions of this Court. The facts, which establish the

identity of the accused persons, are relevant under Section 9 of

the Evidence Act. As a general rule, the substantive evidence of a

witness is the statement made in court. The evidence of mere

identification of the accused person at the trial for the first time

is from its very nature inherently of a weak character. The

purpose of a prior test identification, therefore, is to test and

14

strengthen the trustworthiness of that evidence. It is, accordingly,

considered a safe rule of prudence to generally look for

corroboration of the sworn testimony of witnesses in court as to

the identity of the accused who are strangers to them, in the

form of earlier identification proceedings. This rule of prudence,

however, is subject to exceptions, when, for example, the court is

impressed by a particular witness on whose testimony it can

safely rely, without such or other corroboration. The identification

parades belong to the stage of investigation, and there is no provision

in the Code which obliges the investigating agency to hold or confers a

right upon the accused to claim a test identification parade. They do

not constitute substantive evidence and these parades are essentially

governed by Section 162 of the Code. Failure to hold a test

identification parade would not make inadmissible the evidence of

identification in court. The weight to be attached to such identification

should be a matter for the courts of fact. In appropriate cases it may

accept the evidence of identification even without insisting on

corroboration. (See Kanta Prashad v. Delhi Admn. [AIR 1958 SC 350 :

1958 Cri LJ 698] , Vaikuntam Chandrappa v. State of A.P. [AIR 1960

SC 1340 : 1960 Cri LJ 1681] , Budhsen v. State of U.P. [(1970) 2 SCC

128 : 1970 SCC (Cri) 343] and Rameshwar Singh v. State of

J&K [(1971) 2 SCC 715 : 1971 Cri LJ 638] .)

………………………………………………………………………………………….

………………………………………………………………………………………….

………………………………………………………………………………………….

(emphasis supplied)

34.

What is important in the instant case is that PW1 Omnath

Arya did not know any of the appellants. He merely writes an FIR that

a person visited his shop on 03.08.2016, purchased slippers and

delivered fake currency note. The FIR is quite in detail. In para 7 of his

statement, PW1 Omnath Arya admits that whatever was told by police,

accordingly he lodged the report. He also admits that no Test

Identification Parade was done.

35. It may be believed that some persons could identify

someone in the court, if he had seen him at some earlier occasion. But, if there are unknown persons, how could one name the other? In

the instant case, the question is how PW1 Omnath Arya could tell as

15

to who is Gariba Mahto. He never knew the appellant Gariba Mahto.

He was never introduced to him. Who told him as to who is Gariba

Mahto? Admittedly, there was no Test Identification Parade was done?

Therefore, this dock identification of the appellant Gariba Mahto is

much in doubt.

36. In the instant case, the forensic science laboratory report

has not been put to the appellants under Section 313 of the Code so

as to give them an opportunity to explain it. In such a situation, the

forensic science laboratory report cannot be read into evidence.

37. In view of the foregoing discussion, this Court is of the

view that the prosecution has not been able to prove the charge

against the appellants and all the appellants deserve to be acquitted of

the charge leveled against them. Accordingly, the appeals deserve to be

allowed.

38. Both the appeals are allowed. The impugned judgment

and order is set aside.

39. The appellant Gariba Mahto is acquitted of the charge

under Section 420, 489B and 489C IPC.

40. The appellants Balmiki Chaudhary and Samar Mandal @

Sumor are acquitted of the charge under Sections 489C IPC.

41. Appellants Balmiki Chaudhary and Samar Mandal @

Sumor are on bail on personal bonds. Their bonds are cancelled.

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42. The appellant Gariba Mahto is in custody. Let he be

released forthwith, if not wanted in any other case.

43. The appellants shall furnish a personal bond and two

sureties by each one of them, each of the like amount to the

satisfaction of the court concerned under Section 437 A of the Code

within one month.

44. Let a copy of this judgment along with Lower Court Record

be transmitted to the Court below for compliance.

( Alok Mahra, J.) (Ravindra Maithani, J.)

07.01.2026

Jitendra