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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION (APL) NO.826 OF 2016
APPLICANTS: 1. Greenfield Plantations Private Ltd. A
Company registered Under the Indian
Companies Act, through its Director, Mr.
Narendrakumar Anandlal Poddar, Aged
Adult, Occ: Business, R/o Somani
Sadan, Behind Ujambawadi, Ambapeth,
Amravati-444601.
2. Narendrakumar Anandlal Poddar, Aged
Adult, Occ: Business, R/o Somani
Sadan, Behind Ujambawadi, Ambapeth,
Amravati-444601.
3. Sharadkumar S/o Madangopal
Chaudhari, Aged Adult, Occ: Business,
R/o Indu Industries, At Post: Wani, Dist:
Yavatmal.
4. Yugpradhan S/o Pannalalji Mehta, Aged
about 60 yrs, Occ: Business, R/o
Bajiprabhu Nagar, Ramnagar, Nagpur.
5. Premkumar S/o Rambilasji Agrawal,
Aged: Adult, Occ: Business, R/o Jai
Ambe Steel, New MIDC, Jalna.
-VERSUS-
RESPONDENTS: 1. Deoraj S/o Jethabhai Gosar, Aged about
73 years, Occ: Business, R/o Digras,
Dist: Yavatmal.
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2. State of Maharashtra through Police
Station Digras, Dist: Yavatmal.
Shri J. M. Gandhi, Advocate for the applicant.
Shri D. R. Khapre, Advocate for non-applicant no.1.
Shri J. Y. Ghurde, Addl. Public Prosecutor for respondent no.2.
CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 10-10-2017. DATE ON WHICH JUDGMENT IS PRONOUNCED: 10-11-2017. ORAL JUDGMENT :
1. In view of notice for final disposal issued earlier, the learned Counsel for the parties have been heard at length by admitting the criminal application.
2. The applicants are aggrieved by the order dated 14-10-2016 passed by the learned Additional Sessions Judge, Darwha thereby permitting the non-applicant no.1 - complainant to lead secondary evidence in respect of Resolution dated 15-9-2007.
3. The non-applicant no.1 filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the present applicants. According to him, the land belonging to the applicant no.1 company was acquired under provisions of the Land ::: Uploaded on - 18/11/2017 ::: Downloaded on - 19/11/2017 00:34:17 ::: APL826.16.odt 3/9 Acquisition Act, 1894. As it desired to initiate the proceedings for enhancement of compensation, it executed a deed of assignment dated 1-10-2007 in favour of the non-applicant no.1. Prior to that deed, a resolution dated 15-9-2007 was passed by the company thereby assigning 30% share in the amount of the award in favour of non-applicant no.1. Thereafter a cheque for an amount of Rs.30,00,000/- drawn in favour of the non-1pplicant no.1 was issued. This cheque was, however, dishonoured and hence, the aforesaid complaint came to be filed.
4. During pendency of the proceedings, the non-applicant no.1 gave a notice to produce a copy of the resolution dated 15-9-2007 passed by the applicant no.1 company. This notice was given under Section 66 of the Indian Evidence Act, 1872 (for short, the said Act). The applicants filed reply and took the stand that the photo copy of the resolution placed on record by the non- applicant no.1 was a forged and fabricated document. It was further stated that the mandatory requirements for leading secondary evidence not being fulfilled, the applicants could not be directed to produce the said document. The non-applicant no.1 thereafter filed an application seeking permission to lead secondary evidence. This application was based on the earlier notice given by the non-applicant no.1 to produce the said ::: Uploaded on - 18/11/2017 ::: Downloaded on - 19/11/2017 00:34:17 ::: APL826.16.odt 4/9 resolution. A reply was filed denying the prayer made in the application. It was stated that as the existence of said resolution was not established, no such permission could be granted. The non-applicant no.1 filed a rejoinder and the trial Court on 2-4-2016 passed an order rejecting the said application seeking permission to lead secondary evidence. The non-applicant no.1 being aggrieved filed a revision petition under Section 397 of the Code of Criminal Procedure, 1973. By the impugned order, the learned Judge of the Sessions Court allowed the revision application and after setting aside the order passed by the trial Court permitted the non-applicant no.1 to lead secondary evidence in respect of resolution dated 15-9-2007. Being aggrieved, the present criminal application under Section 482 of the Code has been filed.
5. Shri J. M. Gandhi, learned Counsel for the applicants submitted that there was a dispute as regards existence of resolution dated 15-9-2007. The applicants had specifically come up with a case that such resolution had never been passed and that the copy produced by the non-applicant no.1 was a forged and fabricated document. Merely because a notice for production of that document was issued under Section 66 of the said Act, the non-applicant no.1 was not entitled to be granted permission to ::: Uploaded on - 18/11/2017 ::: Downloaded on - 19/11/2017 00:34:17 ::: APL826.16.odt 5/9 lead secondary evidence. If the document was not shown to have been duly executed and if the existence of such document itself was disputed, there was no question of secondary evidence being permitted to be led. It was submitted that the trial Court rightly took into consideration the judgment of the Hon'ble Supreme Court in J. Yashoda vs K. Shobha Rani (2007) 5 SCC 730. The learned Judge of the Sessions Court erroneously considered the legal position and granted permission to lead secondary evidence. It was, therefore, submitted that the impugned judgment was liable to be set aside.
6. On the other hand, Shri D. R. Khapre, learned Counsel for the non-applicant no.1 opposed aforesaid submissions. According to him, the non-applicant no.1 had given a notice to produce said document and as the same was not produced even thereafter, the non-applicant no.1 was entitled to lead secondary evidence in that regard. At this stage, it was not necessary to go into the question whether the document was fraudulently obtained. It was submitted that the Sessions Court rightly took into consideration the judgment of the Supreme Court in Nawab Singh v. Inderjit Kaur AIR 1999 SC 1668. The genuineness of that document was not the basis for refusing the prayer to lead secondary evidence. The learned Counsel placed reliance on the ::: Uploaded on - 18/11/2017 ::: Downloaded on - 19/11/2017 00:34:17 ::: APL826.16.odt 6/9 decisions in Rajesh Kumar Bhati v. Additional District Judge, Jodhpur AIR 2009 Rajasthan 137, Anil Balasaheb Murde vs. Adinath Trimbak Bodkhe 2008 (1) CLJ 513, and Smt. Ratan Sharma v. Ambesedar Drycleaners and others AIR 1997 Rajasthan 75. It was thus submitted that the Sessions Court having permitted the non- applicant no.1 to lead secondary evidence, no interference was called for.
Shri J. Y. Ghurde, learned Additional Public Prosecutor for the non-applicant No.2.
7. Under Section 65 of the said Act, secondary evidence can be given as regards the existence, conditions or contents of a document in certain cases. As per sub-clause (a) of Section 65 if the original of such document is shown or appears to be in possession of the person against whom the document is sought to be proved and after giving notice to produce such document as per Section 66 of the said Act, such document is not produced, secondary evidence could be led. In H. Siddiqui Vs A. Ramalingam (2011) 4 SCC 240, it was held by the Hon'ble Supreme Court that unless foundational evidence about the existence of the original document and the alleged copy being a true copy of the original is led, permission to lead secondary evidence cannot be granted. It is thus clear that unless the party leads some foundational evidence ::: Uploaded on - 18/11/2017 ::: Downloaded on - 19/11/2017 00:34:17 ::: APL826.16.odt 7/9 to prove the existence of the document which is sought to be proved by leading secondary evidence, such permission cannot be granted. The requirement of showing the existence of such document and its custody being with the person against whom it is sought to be proved is one aspect while notice mentioned in Section 66 of the said Act is another aspect. Without leading any foundational evidence to show that the original document was in existence and it was in the custody of the other party, mere giving of notice under Section 66 of the said Act would not be sufficient. After leading foundational evidence as contemplated and when after giving notice contemplated by Section 66 of the said Act the document is not produced, then a case of leading secondary evidence could be said to be made out. This position has been clarified in J. Yashodha (supra).
8. In the present case, there does not appear to be any foundational evidence led by the complainant to show that resolution dated 15-9-2007 was in existence and the original copy was with the applicants herein. Without leading such foundational evidence, a notice under Section 66 of the said Act to produce that resolution came to be issued. After issuing such notice, the complainant sought permission to lead additional evidence. This course was not permissible and the learned Magistrate rightly ::: Uploaded on - 18/11/2017 ::: Downloaded on - 19/11/2017 00:34:17 ::: APL826.16.odt 8/9 refused permission to lead secondary evidence. The learned Judge of the Sessions Court without considering this relevant aspect of the matter set aside the order passed by the trial Court. The reliance placed by the learned Judge of the Sessions Court on the decision Nawab Singh (supra) is misplaced. The facts of said case indicate that the trial Court had refused leave to produce secondary evidence on the ground that the document sought to be produced was a doubtful veracity. In those facts, it was found that an opportunity to lead secondary evidence ought to be granted. The other decisions relied upon by the learned Counsel for the non-applicant no.1 do not assist his case.
9. It is not necessary at this stage to go into the question of admissibility of the pohotostat copy of the resolution dated 15-9-2007 sought to be produced by the non-applicant no.1. As it has been found that the complainant did not lead any foundational evidence justifying the permission to lead secondary evidence, it is not necessary at this stage to go into that aspect of the matter. Said question can be gone into as and when the occasion arises.
10. In view of aforesaid, the impugned order is liable to be set aside on the ground that permission to lead secondary evidence was granted by the Sessions Court to the non-applicant no.1 without the non-applicant no.1 leading any foundational evidence ::: Uploaded on - 18/11/2017 ::: Downloaded on - 19/11/2017 00:34:17 ::: APL826.16.odt 9/9 as to the existence of resolution dated 15-9-2007. If such foundational evidence is led by the non-applicant no.1, it would be open for him to lead secondary evidence in accordance with the law. At this stage, said request is found to premature.
11. Accordingly, the following order is passed: (1) The judgment dated 14-10-2016 in Criminal Revision No.17/2016 is set aside and order passed by the trial Court below Exhibits 71 and 82 is restored.
(2) It would be open for the non-applicant no.1 to seek to lead secondary evidence in accordance with law after complying with the requirements of Section 65 of the said Act. If the occasion in that regard arises, the present adjudication would not come in the way of the parties. The respective contentions on merits are kept open.
(3) Criminal application is allowed in aforesaid terms with no order as to costs.
JUDGE /MULEY/ ::: Uploaded on - 18/11/2017 ::: Downloaded on - 19/11/2017 00:34:17 :::