Shaikh Noor Shaikh Nanhu Vs. the State of Maharashtra and Others - Court Judgment

Excerpt:
evidence act, 1872 - section 63, 65(c) - case law referred : ramdas bhatu chaudhary, since deceased through lrs. vs. anant chunilal kate 2006 (6) mh.l.j. 571 (para 6). comparative citation: 2012 all mr (cri) 4615oral judgment: 1. heard adv. mr. a.s. lomte for the petitioner, learned app mr. n.r. shaikh for respondent no.1, and adv. mr. s.s. rathi for respondent no.2. nobody for respondent nos.3 to 5, though served. learned advocates for respondent no.6 absent. 2. rule. rule made returnable forthwith. with the consent of learned advocates of parties, taken up for final hearing at the stage of admission itself. 3. leave to amend the prayer clauses granted to the extent that instead of civil judge (junior division), jintur, it be shown as judicial magistrate (f.c.), jintur. 4. by the present petition filed by the petitioner (original accused no.4), under articles 226 and 227 of the constitution of india, he has prayed that the order dated 20th january 2012, passed below exhibit 125 in regular criminal case no. 65/2000, by the learned judicial magistrate (f.c.), jintur, be quashed and set aside. 5.the respondent no.2, jintur urban cooperative bank ltd., jintur, has filed private complaint before learned judicial magistrate (f.c.), jintur, against the petitioner (original accused no.4) and respondent nos.3 to 6, in the year 2000, bearing r.c.c. no. 65/2000, alleging that the petitioner and respondent no.6 have made false documents and misappropriated the amount. the original documents i.e. bank account opening form, handwriting specimens and other related forms, were sent to handwriting expert for examination purpose and for expert's opinion. however, said documents were misplaced but the prosecution was having true copies thereof. hence, the prosecution preferred an application exhibit 125 before learned judicial magistrate (f.c.), jintur, in r.c.c. no. 65/2000 seeking permission to adduce secondary evidence in respect of said documents. the petitioner herein filed his say to the said application and opposed the said application. however, learned trial court i.e. judicial magistrate (f.c.), jintur, allowed the said application by order dated 20th january 2012, and permitted the prosecution to lead secondary evidence in respect of the contents of original bank account form, handwriting specimen form, etc. being aggrieved and dissatisfied by the said order dated 20th january 2012, the petitioner has approached this court by filing present petition and impugned the said order. 6. adv. mr. a.s. lomte for the petitioner canvassed that the documents in question were sent to the handwriting expert about 11 years back, and the respondent no.1 herein has preferred application below exhibit 125 before learned trial court for adducing secondary evidence, after substantial delay and the same has not been explained by the respondent no.1 herein. it is also canvassed that during the span of said 11 years period, there is possibility of change in the nature of the said documents, and therefore, there is every possibility of variance between said original documents and the proposed secondary evidence. it is further canvassed by the learned advocate for the petitioner, that the respondent no.1 has not taken any efforts to trace out the said documents and there is no averment to that effect in the application preferred by respondent no.1, exhibit 125. he further submitted that application preferred by respondent no.1 is a cryptic application and it does not disclose any averments / reasons to adduce secondary evidence. accordingly, learned advocate for the petitioner submitted that the learned trial court should not have allowed the application exhibit 125 and should not have permitted to respondent no.1 to adduce secondary evidence. it is further canvassed by the learned advocate for the petitioner, that the respondent no.1 has not followed provisions of section 63 and section 65(c) of the indian evidence act, 1872, in respect of the secondary evidence, and therefore, also application exhibit 125 was required to be dismissed by the learned trial court. hence, learned advocate for the petitioner urged that the present petition be allowed and the impugned order dated 20th january 2012, passed by the learned judicial magistrate (f.c.), jintur, allowing application exhibit 125, in r.c.c. no. 65/2000, be quashed and set aside. he has relied upon judicial pronouncement of this court in the case of ramdas bhatu chaudhary, since deceased through lrs. vs. anant chunilal kate, reported at 2006(6) mh.l.j. 571, to substantiate his contention. 7. learned app mr. n.r. shaikh for respondent no.1, and adv. mr. s.s. rathi for respondent no.2, countered the said arguments and opposed the present petition vehemently, and submitted that the application preferred by the respondent no.1, exhibit 125, is self-explicit, wherein it is stated that the documents in question were sent to handwriting expert through the superintendent of police, parbhani, and same were misplaced, and there is no possibility of tracing of the said documents, but respondent no.1 was having true copies thereof, and therefore, respondent no.1 sought permission to produce the same before the court by way of secondary evidence. learned app and learned advocate for respondent no.2 pointed out that the aspect of delay of 11 years has been dealt by the learned trial court in the impugned order and charge was framed in the year 2006, and thereafter the matter was adjourned for most of the times for placing original documents which itself indicates that the prosecution has made efforts to trace out the said documents, and therefore, it is submitted by them, that there is no substance in the objection raised by the learned advocate for the petitioner herein, in that respect. learned app and learned advocate for respondent no.2 further submitted that the documents in question are important and vital documents, and therefore, they are required to be produced on record for fair trial and in the interest of justice. so also, it is submitted that the petitioner would get opportunity to cross examine at the time adducing said secondary evidence and hence, no prejudice would be caused to the petitioner. besides, learned app and learned advocate for respondent no.2 submitted that the judicial pronouncement, cited by the learned advocate for the petitioner, has no bearing with the facts of the present case since facts and circumstances in the present case and facts and circumstances in the said case differ from each other. accordingly, learned app and learned advocate for respondent no.2 submitted that the petition bears no substance and the same is devoid of merits and, therefore, same be rejected. 8. i have perused the present petition, its annexures, application dated 7-1-2012, below exhibit 125, preferred by the respondent no.1 in r.c.c. no. 65/2000 (exhibit "c"), and the say filed by the petitioner herein thereto on 16-1-2012 (exhibit "d"), and the impugned order dated 20th january 2012, passed by the learned judicial magistrate (f.c.), jintur, below exhibit 125 in r.c.c. no. 65/2000, and also perused the affidavit in reply filed by respondent no.2, and heard the submissions advanced by the learned counsel for the parties, and also perused the judicial pronouncement cited by the learned advocate for the petitioner. 9. at the outset, it will be useful to reproduce section 63 in respect of secondary evidence, and section 65(c) of indian evidence act, for ready reference: "63. secondary evidence - secondary evidence means and includes - (1) certified copies given under the provisions hereinafter contained (see s. 76, infra); (2) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them; (5) oral accounts of the contents of a document given by some person who has himself seen it." "65. cases in which secondary evidence relating to documents may be given – secondary evidence may be given of the existence, condition or contents of a document in the following cases :- (a) ....................................................... (b) ...................................................... (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. " learned advocate for the petitioner gave emphasis on the later part of section 65(c) and canvassed that the party offering secondary evidence is required to produce the original documents in reasonable time. it is submitted that in the instant case, the documents in question were not sent to handwriting expert about 11 years back and the respondent no.1 has preferred application in question, exhibit 125, after substantial delay which has not been explained by the respondent no.1. 10. however, bare perusal of the impugned order dated 20-1-2012 reflects that the learned trial court has dealt with the said objection raised by the petitioner, in para 10 of the said order. apparently, charge was framed on 4-3-2006, and thereafter the matter was adjourned on various grounds and some times matter was adjourned due to absence of the accused also, and most of the times it was adjourned for tracing muddemal i.e. original documents. moreover, learned trial court has observed that the prosecution has taken every steps to call the original documents by filing applications from time to time. learned trial court has further noticed that when prosecution lost its hope to get original documents, then application in question, exhibit 125, was filed, and therefore, learned trial court concluded that in view of said fact, application exhibit 125 was not delayed application. thus, as observed by the learned trial court, record indicates that the respondent no.1 has made efforts to trace out the documents in question and took every steps to call the original documents and when lost the hopes to get the original documents, then only preferred the application exhibit 125. hence, i am of the view that the observations made by the learned trial court in respect of the said objection are not erroneous, and consequently there is no substance in the submission made by the learned advocate for the petitioner, in that respect. 11. a bare perusal of the application exhibit 125 indicates that the respondent no.1 intended to produce the said documents by way of secondary evidence, and it is categorically stated that the said documents were sent to handwriting expert through superintendent of police, parbhani, and same were misplaced and there is no possibility of tracing of the said documents, and the respondent no.1 possessed the true copies thereof which were sought to be produced by way of secondary evidence through application exhibit 125. thus, contents of the said application apparently conforms the ingredients of section 65(c) of the indian evidence act, and therefore, learned trial court rightly allowed the said application and permitted respondent no.1 to produce the documents in question by way of secondary evidence. on perusal of the judicial pronouncement cited by the learned advocate for the petitioner, it is apparently clear that the facts and circumstances in the said case and the facts and circumstances in the present case differ from each other, and apparently, there is no fault on the part of respondent no.1 for the loss of the documents in question. 12. in the circumstances, present petition lacs merits, and therefore, same stands dismissed. rule stands discharged accordingly.