TMI Blog2008 (9) TMI 1011X X X X Extracts X X X X X X X X Extracts X X X X ..... d down by the Apex Court in the case of Bipin Panchal [ 2001 (2) TMI 590 - SUPREME COURT] will have to be followed by the Courts sub-ordinate to this Court. However, the said decision-of Apex Court is applicable only to one category of objection regarding admissibility of the document in evidence and that decision has no application when an objection is raised to the proof or to irregular/insufficient mode of proof of a document. Objection regarding inadequacy of stamp is concerned that is already settled by the larger bench of the Apex Court in the case of Javer Chand [ 1961 (4) TMI 118 - SUPREME COURT] . In fact, in the decision of this Court in the case of Peacock Industries [ 2006 (7) TMI 700 - BOMBAY HIGH COURT] , the judgment of the Apex Court in the case of Bipin Panchal (supra) is not read and interpreted to mean that it also applies to the objection regarding proof of documents. Therefore, after filing of affidavit of examination-in-chief and after recording formal examination-in-chief of the concerned witness, an objection raised regarding proof of documents or insufficiency of proof or of adopting incorrect mode of proof has to be dealt with immediately by the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity open. Hence, I pass the following order: Subject to what is observed in this judgment, no case for interference is made out and the petitions are disposed of. - Abhay Shreeniwas Oka, J. For Appellant: S.V. Marwadi, Adv., i/b., S. Narkar, Adv. For Respondents: D.R. More, A.P.P. and R. Satyanarayanan and J.S. Darod, Advs. ORDER Abhay Shreeniwas Oka, J. 1. I have heard the submissions of the learned Counsel appearing for the parties. With a view to appreciate the submissions of the learned Counsel appearing for the parties, it will be necessary to refer to the facts of the case in brief. 2. Criminal Writ Petition No. 331 of 2008 has been filed for challenging the order dated 27th December, 2007 passed by the learned Metropolitan Magistrate by which an application made by the petitioner under Section 145(2) of the Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act) has been rejected. The petitioner has been arraigned as an accused in a complaint filed by the 2nd respondent under Section 138 of the said Act. The application was made by the petitioner contending that in view of Sub-section (2) of Section 145 of the said Act, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecording that provisions of paragraph 33 of Chapter VI of the Criminal Manual have been complied with. He observed that when the complainant entered the witness-box, each and every document came to be exhibited. The learned Judge observed that paragraph 33 of Chapter VI of the Criminal Manual never contemplates a decision on the evidentiary value of the documents at the time of filing them in the Court. 6. The first submission made by the learned Counsel appearing for the applicants/petitioners was on the interpretation of Section 145(2) of the said Act. It must be stated here that when the view taken by a Division Bench of this Court on the interpretation of Section 145(2) in the case of KSL and Industries Ltd. v. Mannalal Khandelwal and Anr. as well as the view taken by several learned single Judges of this Court was brought to the notice of the learned Counsel appearing for the petitioners/applicants, it was pointed out that the said view is subject matter of challenge in Special Leave Petitions before the Apex Court which are being heard. Since this Court has already taken a view, no submissions are made on the said aspect of the case with a prayer that the said contention m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of any material or any item of oral evidence and the directions do not relate to the procedure to be followed as regards marking the documents as exhibits. He submitted that even assuming that the Apex Court has laid down the procedure by the said decision, the Courts in Maharashtra are bound by the Rules contained in Criminal Manual issued by this Court and therefore the Courts are bound by paragraphs 33 to 35 of Chapter VI of the Criminal Manual. He invited my attention to another decision of the Apex Court in the case of R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple and Anr. AIR2003SC4548 . He submitted that the observations in the judgment of the Apex Court in the case of Bipin Panchal (supra) are only in the nature of guidelines and the law as regards the admissibility and proof of documents has been laid down by the Apex Court in the said decision in the case of R.V.E. Venkatachala (supra). He also placed reliance on a decision of the learned single Judge of this Court in the case of Sanjay Cotton Co. v. Omprakash Shiopraksh and Anr. AIR1973Bom40 . 9. The learned Counsel appearing for the respondents in Criminal Writ Petition Nos. 1170 of 2008, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any enquiry, trial or other proceeding, and it may be subject to all just exceptions. 11. There is a further decision of this Court in the case of Indo International Ltd. and Anr. v. State of Maharashtra and Anr. 2005 (2) Bom CR (Cri) 729 : 2006 Cri LJ 208. In paragraph 11 of the said decision, this Court has summarised the law laid down by the Division Bench in the case of KSL Industries (supra). The relevant part of paragraph 11 reads thus: Thus, the law laid down by the Division Bench in the decision of KSL Industries can be summarised as under: (a) The Court dealing with a complaint under Section 138 of the said Act of 1881 has an option to take evidence of the witnesses on the side of the prosecution as well as evidence of the accused and the defence witnesses, if any, on affidavit. (b) If the evidence of a witness is taken on affidavit, after an application is made by the other party under Sub-section (2) of Section 145, it is not necessary to again record examination-in-chief of the witness whose affidavit of examination-in-chief is already filed. (c) If an affidavit is filed under Sub-section (1) of Section 145 and an application is made under Sub-section (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument is not disputed, such document may be read in evidence in the trial without proof of the signature of the person by whom it purports to be signed. Thus, when genuineness of the document produced is not disputed after being called upon as required by Sub-section (1) of Section 294, the said document can be treated as proved and examination of a witness for proving the document is not required. In this behalf, it will be necessary to refer to a decision of Full Bench of this Court in the case of Shaikh Farid Hussainsab v. State of Maharashtra 1981 Mah LJ 345 : 1983 Cri LJ 487. Paragraph 7 of the said judgment reads thus: 7. Section 294 of the Code is introduced to dispense with this avoidable waste of time and facilitate removal of such obstruction in the speedy trial. The accused is now enabled to waive the said right and save the time. This is a new provision having no corresponding provision in the repealed Code of Criminal Procedure. It requires the prosecutor or the accused, as the case may be, to admit or deny the genuineness of the documents sought to be relied against him at the outset in writing. On his admitting or indicating no dispute as to genuineness, the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-mouled to give way for better substitutes which would help acceleration of trial proceedings. 13. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an objection that the document which is sought to be proved is itself inadmissible in evidence: and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as an exhibit an objection as to its admissibility is not excluded and is available to be raised even at later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted m evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit, The later proposition is a Rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eading further evidence to prove the document by adopting proper mode is available. Insofar as the second category of objection is concerned, the Apex Court held that even if a document is marked as exhibit, an objection simplicitor as to its admissibility is not excluded and is available to be raised at a latter stage. 18. It must be noted here that there is one more category of objection which relates to insufficiency of stamp on the document sought to be tendered. On this aspect there is a decision of the Apex Court of its constitution bench consisting of five Hon'ble Judges in the case of Javer Chand and Ors. v. Pukhraj Surana [1962]2SCR333 . The Apex Court considered the provisions of Section 36 of the Indian Stamp Act and relevant provisions of the Evidence Act. The Apex Court held as under: Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped it has to be decided then and there when the document is tendered in evidence. Once the Court rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned the matter is closed. Section 35 is in the nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Constitution of India, the Hon'ble the Chief Justice has been pleased to appoint 16th August, 1982 as the date on which the revised criminal manual, came into force. Thus, it is apparent that the criminal manual and the Rules contained therein have been issued in exercise of powers conferred by Article 227(2)(b) of the Constitution of India. The said provision empowers the High Court to make and issue general Rules regulating the practice and proceeding of Courts sub-ordinate to this Court. In this context a reference will have to be made to Chapter VI and in particular paragraphs 33 and 34 thereof which read thus: 3.3. (1) When the documents are sought to be produced in the Courts, the Courts concerned should insist upon the list of such documents and the production thereof being made in chronological or some other methodical order. (2) Similarly, the Courts concerned should determine as to whether documents sought to be produced in the Court are relevant and admissible or not, at the time when the documents are sought to be produced, and not at the time of the delivery of judgment. 34. When a witness prove any document, the correct exhibit number should immedia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been exhibited as admitted documents. (Emphasis added) On this aspect, it will be necessary to refer to a decision of this Court in the case of Bama Kathari Patil v. Rohidas Arjun Madhavi and Anr. 2004(3)BomCR509 . The learned Judge was dealing with a writ petition arising out of a civil suit but what is laid down by this Court will be very relevant even in a criminal trial. The learned Judge held that a document is required to be proved in accordance with the provisions of the Evidence Act and merely for administrative convenience of locating or identifying the document, it is given exhibit number by the Court. It is held that exhibiting a document has nothing to do with its proof though as matter of convenience only the proved documents are exhibited. 22. The submissions have been made by pointing out a consistent practice followed in the Courts in Maharashtra that when a document is referred to during the course of cross-examination of a witness, the said document is marked as an exhibit though it is not earlier marked as an exhibit. This is nothing but a practice of convenience. The practice of the marking a document referred to in the cross-examination is only the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tingency where the decision taken on objection regarding admissibility may amount to wasting the time of the Court and delaying the further recording of evidence. An argument was advanced that in the case of Peacock Industries (supra) and in particular in paragraph 41 thereof this Court has accepted that the procedure laid down in the case of Bipin Panchal (supra) has to be followed in trials under Section 138 of the said Act. My attention was also invited to a decision of another learned single Judge of this Court which is rendered in the case of Peacock Industries and Anr. v. Wipro Finance Ltd. and Anr. dated 04th October, 2005 wherein this Court held that the course adopted by the Apex Court in the case of Bipin Panchal (supra) is required to be followed. After referring to the case of Bipin Panchal (supra), in paragraph 10 the learned Judge has observed thus: 10. It is clarified that if any objection is raised during the evidence taking stage regarding admissibility of any material or item or oral evidence, the trial Court to make a note of such objection and mark the objected document or portion tentatively as an exhibit in the case subject to such objections to be decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a document is decided, the complainant or accused who has produced the said documents is put to the notice that the document is not held as proved so that he can seek indulgence from the Court of leading further evidence. This, avoids possibility of parties applying at the stage of judgment for recalling the witness or for leading further evidence for proving a document. 26. I have already held that merely because a document referred to in cross-examination is marked as an exhibit, the same does not dispense with the proof of document, in accordance with law of evidence. 27. After summarising the law on the aspects stated above, now it will be necessary to deal with the merits of the petitions which are before the Court. Criminal Writ Petition Nos. 331 of 2008, 1170 of 2008, 1171 of 2008 and 1172 of 2008 are concerned, the prayer for directing the complainant to step into witness-box based on Sub-section (2) of Section 145 cannot be entertained in view of the decision in K.S.L. Industries (supra). 28. Now turning to the Criminal Application No. 2633 of 2008, it will be necessary to refer to the impugned order. As pointed out earlier, the challenge is to the order dated 02 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
