Bombay High Court
Shaikh Noor Shaikh Nanhu vs The State Of Maharashtra on 27 September, 2012
Bench: Shrihari P. Davare
(1) Cri.W.P. No. 173 / 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal Writ Petition No. 173 of 2012
Shaikh Noor Shaikh Nanhu,
Age : Major,
Occupation : Nil,
R/o. Kureshi Mohalla, Jintur,
Taluka : Jintur,
District : Parbhani. .. Petitioner.
versus
1. The State of Maharashtra,
Through Shri Vilas s/o. Dinkarrao Nikam,
Police Superintendent, Police Station,
Jintur.
2. The Jintur Urban Co-op. Bank Ltd.,
Jintur,
Through Shri Ashok s/o. Devlal Boralkar,
Age : Major,
Occupation : Nil,
R/o. Jintur, Taluka : Jintur,
District : Parbhani.
3. Shri Bhimrao s/o. Vithalrao Wakle,
Age : Major,
Occupation : Nil,
R/o. Pungla Vas, Jintur,
Taluka : Jintur,
District : Parbhani.
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(2) Cri.W.P. No. 173 / 2012
4. Shri Dnyndeo s/o. Vithalrao Bhise,
Age : Major,
Occupation : Nil,
R/o. Near Hutama Smarak, Jintur,
Taluka : Jintur,
District : Parbhani.
5. Shri Kishore s/o. Bhiwaraji Avchar,
Age : Major,
Occupation : Nil,
R/o. Near Z.P. School, Jintur,
Taluka : Jintur,
District : Parbhani.
6. Shri Syamsunder s/o. Govindrao Gajare,
Age : Major,
Occupation : Nil,
R/o. Math Galli, Jintur,
Taluka : Jintur,
District : Parbhani. .. Respondents.
.......................
Mr. A.S. Lomte, Advocate, for the petitioner.
Mr. N.R. Shaikh, Additional Public Prosecutor, for
respondent no.1.
Mr. S.S. Rathi, Advocate, for respondent no.2.
Respondent nos.3 to 5 served (Absent).
Mr. Ram Shinde & Mr. M.M. Gajare, Advocates,
for respondent no.6 (Both absent).
........................
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(3) Cri.W.P. No. 173 / 2012
CORAM : SHRIHARI P. DAVARE, J.
DATE : 27TH SEPTEMBER 2012
ORAL 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
(4) Cri.W.P. No. 173 / 2012
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
(5) Cri.W.P. No. 173 / 2012
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
(6) Cri.W.P. No. 173 / 2012
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 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.
(7) Cri.W.P. No. 173 / 2012
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. "
(8) Cri.W.P. No. 173 / 2012
"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
(9) Cri.W.P. No. 173 / 2012
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
(10) Cri.W.P. No. 173 / 2012
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.
(SHRIHARI P. DAVARE)
JUDGE
ig .........................
bgp/173kwp
