Veera Swamy Shanmugam Sundaram Vs. the State of A.P. - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 4. heard the learned counsel for the appellant-accused as well as the learned public prosecutor and perused the judgment under appeal. 9. for better appreciation of the case, it is necessary to refer to sections 489-b and 489-c of the indian penal code, which reads thus :489-b. the conduct of the accused would clearly demonstrate that he had no knowledge nor had he any reason to believe that the note in question was forged. 3. this in my view is a strong circumstance in favour of the accused in order to say that neither he was informed about the genuineness of mo. that means the accused had a strong feeling not only before p. when his belief was so strong, it cannot be implied that he had the intention to make use of mo. the vehemence only goes to show the strong faith of the accused about the genuineness of mo.d.s.r. varma, j.1. this is an appeal filed by the accused-appellant against the judgment passed by the learned iind additional metropolitan sessions judge, hyderabad in sessions case no. 134 of 1994, dated 29-4-1995, convicting the accused for the offence under section 489-b of the indian penal code and sente ncing him to under r.i. for a period of three years and also to pay a fine of rs. 500/-, in default to undergo s.i. for a period of five months. he was further convicted for the offence under section 489-c of the indian penal code and sentenced to undergo r.i. for a period of two years, and also directed that both the sentences shall run concurrently.2. the case of the prosecution is that on 14-9-1992 while p.w. 3 was performing his duty as a booking clerk in the counter no. 5 from 14.00 hours to 22.00 hours, the appellant-accused came to his counter at about 9.30 p.m. and offered rs. 100/- note and asked for a ticket to vijaywada. it was suspected by him that it was a fake note. he handed over the said person, who is the appellant herein along with fake hundred rupee note to p.w. 2, who is the police officer together with a written complaint. on receipt of the complaint, p.w. 1 arrested the accused-appellant and seized hundred rupee note from his possession under a cover of panchanama and registered the case in crime no. 137/1992 under section 489(b) and (c) of the indian penal code.3. the prosecution examined p.ws. 1 to 5 and got exs. p1 to p7 and mo.1 marked on its behalf.4. heard the learned counsel for the appellant-accused as well as the learned public prosecutor and perused the judgment under appeal.5. p.w. 3 deposed in his evidence that while he was working as booking clerk from 2 p.m. to 10 p.m. at nampally railway station at counter no. 5, on 14-9-1992 at about 9.30 p.m., the appellant came to the book-ing counter and askecl a ticket to vijayawada after presenting a hundred rupee note to him. upon seeing the said note, he observed that it could not be a genuine note because it was slightly yellowish. on suspicion, he verified the said note and found it to be a fake note. then he asked the accused to come to his cabin. accordingly the accused went inside the booking office. he also crosschecked the said note with another senior clerk and came to a conclusion that it was a fake note. then at his (p.w. 3) instance, the staff called the g.r.p. police. subsequently p.w. 1, the sub-inspector of police came to his office. before the police arrived, the accused admitted that he offered hundred rupee note to purchase a ticket and the same was seized by the police. he stated that the note was with the accused by the time the police came. he gave ex. p1 complaint to the police for taking necessary action against the appellant. mo. 1 is the said fake hundred rupee note. in his cross-examination p.w. 3 stated that he did not note the number of mo.1 in his complaint ex. p1. he further deposed that he did not mention in ex. p1 that he suspected the accused. he also deposed that in his presence no statement was recorded by p.w. 1 and that when the police entered into his cabin, mo. 1 was in his hands, but it is to be noted that in his chief examination he stated that when the police entered into his cabin, mo. 1 was in possession of the accused,6. the evidence of p.w. 2 is to the effect that upon information furnished by p.w. 3, he went to the booking office and found the accused inside the booking office at counter no. 5 and at the request of p.w. 1, the sub-inspector of police, he called two panchas to the booking office and in their presence mo. 1 was seized from the possession of the accused under a cover of panchanama. the evidence of p.w. 1, sub-inspector of police, runs in the same lines as that of p.w. 2.7. ex. p6 is the opinion of expert to the effect that mo. 1 is a fake note.8. from the above evidence it is clear that the apellant presented mo. 1 to p.w. 3, who suspected the same as not genuine; he called the accused inside his cabin; the accused promptly went inside and was waiting there and that the accused was never informed by p.w. 3 that the note presented by him was a fake note nor does he know that p.w. 3 called him inside his cabin on suspicion and to inform to the police. however,upon the information p. ws. 2 and 1 came t.6 the office of p.w. 3, seized mo. 1 in the presence of the mediators under a cover of panchanama and expert opinion was also sought and ex. p6 opinion confirms that mo. 1 was a fake note.now the point that arises for consideration is whether the conduct of the accused-appellant in presenting the fake hundred rupee note mo. 1 to p.w. 3 demanding a ticket amounts to an offence under sections 489-b and 489-c of the indian penal code.9. for better appreciation of the case, it is necessary to refer to sections 489-b and 489-c of the indian penal code, which reads thus :489-b. using as genuine, forged or counterfeit currency notes or bank notes-whoever sells to, or busy or receives from, any other person, or otherwise traffics in or use as genuine, any forged or counterfeit currency note or bank note, shall 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 with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.a reading of section 489-b, i.p.c. discloses that the essential ingredients are that a person shall sell or buy or receive from any person with knowledge or having reason to believe that the same to be forged or counterfeit. in other words the essential ingredient is knowledge or having reason to belive the note in his possession to be a forged one.10. similarly a reading of section i.p.c. discloses that essential ingredient is knowledge or having reason not only to believe the note is forged but also intention to use the same as genuine or that it may be used as genuine. therefore, to establish a guilt or otherwise on both these counts, the prosecution shall necessarily establish the knowledge and intention on the part of the accused in order to connect him with the offence under sections 489(b) and 489(c) of, i.p.c.now it has to be examined whether the prosecution had that the accused had the knowledge or had the reason to believe that mo. 1 is a forged or c6unterfeit and he had intention to use the same as genuine.(emphasis supplied)11. the evidence on record, as already briefly narrated earlier, is simply that the accused offered mo.1 to p.w. 3. p.w. 3 with a doubt, called the accused inside his cabin and made him to wait. admittedly he was not informed nor was asked about the genuineness of mo.1. by the time p.ws. 1 and 2 came to the cabin of p.w. 3, mo. 1 was in the hands of the accused and the same was seized. none of these three witnesses questioned the accused as to whether he had the knowledge that mo.1 was not a genuine note. in similar circumstances a decision of calcutta high court in the judgment reported in madan lal sharma v. state, 1990 cri lj 215 relying on the judgment of the supreme court reported in m. mammutti v. state of karnataka, : 1979crilj1383 observed as follows :-in our view, from the evidence, the conclusion does not follow that the accused had the knowledge or reason to believe that one of the notes in the bundle was forged. had the accused any knowledge or reason to believe that the note was a forged one, in that event he would not have, after the note was changed, kept such note with him. he would have destroyed the note immediately or thrown it away. he did not do it. he was given the bundle of notes by his employer for buying the bank draft. the receiver of the cash in the bank, because of his day to day dealings in currency notes, might have found it to be defective. accordingly, he returned the note to the accused who in turn handed over another note to him. he was asked to wait and thereafter handed over to the police. the conduct of the accused would clearly demonstrate that he had no knowledge nor had he any reason to believe that the note in question was forged.there is another aspect of the matter which will show that he did not have any knowledge or reason to believe that the defective note was forged. the appellant gave a 100/- rupee note when the receiver at the cash counter asked him to change the defective note.their lordships also recorded the following observations of the supreme court:unless there was evidence of any witness to show that the counterfeit notes were of such a nature or description that a mere look at them would convince any person of average intelligence that it was a counterfeit note and any presumption that the accused knew that notes in possession were counterfeit cannot be drawn and no conviction under sections 489-b and 489-c can be sustained. the supreme court thus observed (para 1) :if the notes were of such a nature that mere look at them would convince anybody that it was counterfeit such a presumption could reasonably be drawn. but the difficulty is that the prosecution has not put any specific question to the appellant in order to find out whether the accused knew that the notes were of such a nature. no such evidence has been led by the prosecution to prove the nature of the notes also. in these circumstances, it is impossible for us to sustain the conviction of the appellant.12. in similar circumstances, the madras high court in the judgment reported in t.j. mohan v. state by inspector of police, tiruvellore police station (1995) 2 andh lt(cri) 581 held-.apart from the recovery of the counterfeit currency there is nothing to prove that this petitioner, had the knowledge that mos. 48 and 49 were counterfeit currencies or that he was having them with the intention of using the same as genuine and, therefore, when the evidence is wanting for such elements, he cannot be convicted for the offence under section 489-c, indian penal code also.... as rightly contended by the learned counsel for the revision-petitioner section indian penal code will be attracted only if the person had the knowledge that the currency he possessed were counterfeit notes and that he intended to use them as genuine.... we cannot presume the mens rea for the possession of these currency notes, because any gullible person may accidentally come into possession of such counterfeit currencies without knowing that they are counterfeit notes. therefore, when such possibilities cannot be ruled out certainly, the benefit of doubt must be given to the accused, when especially there is no other evidence to prove the knowledge of the revision-petitioner as to the nature of these currencies or that he had the intention of using the same as genuine currencies.13. in the instant case it is clear from the evidence on record that the accused had no knowledge that mo. 1 was counterfeit nor he had the intention to make use of it. this is evident from the conduct of the accused himself as was spoken to by p.w. 3. though p.w. 3 suspected the genuineness of the note, he did not inform or ask the accused as to whether mo. 1 was a genuine note or not, which implies that the accused were never informed about the quality of mo. 1. on the contrary he was simply called him into his cabin and made him to wait there and upon his report p.ws. 1 and 2 came. even at that time also the accused was holding mo.1 in his hands. this conduct probabilises that the accused did not really have the knowledge that it was a fake note nor he had the intention to use it. for a gain. if really he had the knowledge that it was a fake note, when it was asked by p.w. 2 to come to his cabin, he would not: have entered into his cabin at all. even if he enters into his cabin, when he is made to wait there, he could have immediately suspected that p.w. 3 was doubting not only mo. 1 but also his conduct. but he was simply waiting in the cabin of p.w. 3. this in my view is a strong circumstance in favour of the accused in order to say that neither he was informed about the genuineness of mo. 1 nor he had the knowledge that mo.1 was a fake note nor he had any intention to use it for a gain.14. it can further be seen that in his sectioncr. p.c. statement the accused had categorically stated that he had given a genuine note, but unnecessarily p.w. 3 called him into his cabin and made him to wait there and issuing tickets to others without issuing ticket to him. that means the accused had a strong feeling not only before p.w. 3, the police officers, but also before the court that the note presented by him was genuine. when his belief was so strong, it cannot be implied that he had the intention to make use of mo. 1 with the knowledge that it was a fake note.15. therefore, in my view the accused had no knowledge or reason to believe that mo. 1 which was presented by him for purchase of a ticket was forged one in which event he could not have the intention also to use it with the knowledge that it is a fake note.16. under these circumstances, i am of the considered view that in the instant case the essential ingredients of sections 489-b and 489-c of i.p.c. with regard to the knowledge and intention are totally lacking, which is explicit from the very conduct of the accused.17. further, there was no evidence in order to show that mo. 1 was of such a nature or description that a mere look at it would convince any person of average intelligence that it was a counterfeit note and any presumption that the accused knew that the note in his possession was a counterfeit cannot be drawn. in this context, the supreme court had categorically observed in the decision 1979 cri lj 1383 (cited supra) that a question to the accused should have been put in order to find out whether the accused knew that the notes were of such a nature.18. in the instant case from the evidence it can be seen that p.ws. 1, 2 and 3 did not say anything on this aspect. it is obvious from this evidence that none of these three witnesses did ask the accused about his knowledge with regard to the genuineness of mo.1. in the absence of any such evidence on record, the knowledge and intention on the part of the accused can be assessed only from the evidence let in on behalf of the prosecution.19. at the cost of repetition, as already pointed out, the accused had categorically spoken in his statement under section 313, cr. p.c. that he gave a genuine note and p.w. 3 did not issue him a ticket. the vehemence only goes to show the strong faith of the accused about the genuineness of mo.1 which was presented by him, and there is no evidence in order to show that it was questioned by any of the prosecution witnesses about the genuineness of mo. 1.20. further, from the evidence of p.w. 3 it is also clear that mo. 1 was not patently doubtful though there was a reason to doubt and because of the said doubting he crosschecked the genuineness of mo.1 with his colleague.21. in view of the above discussion and by following the judgment of the apex court 1979 cri lj 1383 (cited supra) and also the judgments cited 1 and 3,i have no hesitation to hold that the appellant-accused had neither knowledge nor about the genuineness of mo. 1 nor he had intention to use it for undue gain and as such he cannot be found guilty for that offences punishable under sections 489-b and 489-c of i.p.c. therefore, the judgment of the trial court convicting the appellant-accused is set aside.22. in the result, the criminal appeal is allowed. since it is represented that the appellant-accused is on bail, his bail bonds shall stand cancelled. fine amount, if paid, shall be refunded to the appellant-accused.