Bombay High Court
Bhanudas S/O Bhaguji Zarekar vs Balasaheb @ Babasaheb Sakharam ... on 20 December, 2017
Bench: V. V. Kankanwadi
(Judgment) (1) Cri. W.P. No. 01673 of 2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal Writ Petition No. 01673 of 2016
District : Ahmednagar
Bhanudas s/o. Bhaguji Zarekar,
Age : 45 years,
Occupation : Agriculture,
R/o. Ghospuri, .. Petitioner
Taluka & Dist. Ahmednagar. (Original complainant)
versus
1. Balasaheb @ Babasaheb Sakharam
Dhage,
Age : 40 years,
Occupation : Agriculture,
R/o. State Transport Co-op.
Bank Ltd.,
Old Bus Stand, Maliwada,
Ahmednagar,
Taluka & Dist. Ahmednagar.
2. The State of Maharashtra. .. Respondents.
...........
Mr. Rajendra S. Kasar, Advocate, for the petitioner.
Mr. R.P. Phatke, Advocate, for respondent no.01.
Mr. S.P. Sonpawale, Addl. Public Prosecutor, for
respondent no.02.
...........
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(Judgment) (2) Cri. W.P. No. 01673 of 2016
CORAM : SMT. VIBHA KANKANWADI, J.
Date of reserving the
judgment : 23rd November 2017.
Date of pronouncing the
judgment : 20th December 2017.
JUDGMENT :
01. Rule. Rule made returnable forthwith.
Taken up for final disposal by consent of both the
parties.
02. Present petitioner is the original
complainant who has filed a private complaint bearing
S.C.C. No. 1506 of 2014 before learned Judicial
Magistrate (First Class), Ahmednagar, contending that
the present respondent no.01 - original accused has
committed offence punishable under Section 138 of the
Negotiable Instruments Act, 1881. After the service
of summons to the respondent no.01, he appeared in
the matter. His plea has been recorded and
thereafter the matter was for evidence. Affidavit in
examination in chief has been filed by the
complainant and thereafter he also filed an
application at Exhibit 45 for the permission to
adduce secondary evidence in respect of agreement
dated 03.12.2014 and notice dated 06.06.2014. It has
been stated in the application, that the said
agreement has been notarized which was executed
between complainant and accused. The agreement is in
(Judgment) (3) Cri. W.P. No. 01673 of 2016
the custody of the accused so also the copy of the
notice is with the accused. Photo-copies of both the
documents have been produced by the complainant on
record. Under that circumstance, he prayed for the
permission to lead secondary evidence.
03. Accused filed say at Exhibit 47 stating that
the grounds for leading secondary evidence have not
been mentioned in the application. According to him,
the photo-copy of the notice is a tampered document.
It is also stated that the original copy of the
contract is not in possession of the accused.
Further, no affidavit has been filed by the
complainant in support of the application.
04. After hearing both sides, the learned
Judicial Magistrate (F.C.) has rejected the
application on the count that notice under Section 66
of the Indian Evidence Act has not been issued by the
complainant and, therefore, the said application
cannot be considered.
05. It has been submitted by the learned Counsel
appearing for the petitioner - original complainant,
that the original document of the agreement is with
the accused. The said document was a notarized
document. Notice under Section 66 of the Indian
Evidence Act is not at all necessary under such
circumstance. Further, as regards notice is
concerned, when the document itself is a notice, then
it comes under the exception and, therefore, the
(Judgment) (4) Cri. W.P. No. 01673 of 2016
notice is not required.
06. Per contra, it has been submitted on behalf
of respondent no.01, that the learned Magistrate has
rightly considered that the notice as contemplated
under Section 66 of the Indian Evidence Act has not
been given, the question of permitting the
complainant to lead secondary evidence under Section
66 of the Indian Evidence Act does not arise. The
complainant has not explained as to where is the
original document or has not come with a case that
the document is either stolen or lost or destroyed.
07. Here, in this case, the complainant has
sought permission to lead secondary evidence in
respect of two documents, one is agreement dated
08.12.2014 and another the notice dated 06.06.2014.
The case in respect of both these documents is
required to be considered separately. As regards the
agreement is concerned, it has been specifically
stated in the application Exhibit 45, that the
original agreement is with the accused. If we
consider the contents of the complaint, the copy of
the notice which is on record and the verification of
the complainant, we can find that there is no mention
of any such agreement. However, the copy of the
agreement appears to have been produced along with
the complaint itself. It appears from the said
document, that the agreement is actually a compromise
deed. Now, the accused is denying the fact that he
possesses the original. However, it is to be noted
(Judgment) (5) Cri. W.P. No. 01673 of 2016
that in his say at Exhibit 47, he has not denied the
existence thereof nor in any way it suggests that he
has denied the execution thereof also. Under such
circumstance, the learned Judicial Magistrate (F.C.)
ought to have considered the point as to who would
have been naturally in possession of the document.
If we consider the photo-copy of the agreement dated
08.12.2014, then the present complainant has been
shown as executant of the document and it has been
got executed by respondent no.01 - original accused.
Under such circumstance, the original would have been
in possession of the accused. However, he is now
denying the same. Yet, he cannot be asked to produce
the original since he is an accused and there is a
constitutional right available in him under Article
20 of the Constitution of India. He cannot be asked
to produce any piece of evidence which will
incriminate him. Under such circumstance, the
learned Judicial Magistrate (F.C.) ought to have
given permission to the complainant to lead secondary
evidence in respect of the agreement.
08. Now, as regards the notice dated 06.06.2014
is concerned, as per the procedure, the original
should have been sent to the accused and a copy
thereof would have been with the complainant.
However, in application Exhibit 45, it is stated that
the accused is having true copy. Unless that fact is
got clarified, any order could not have been passed.
Now, the accused has come with a case that the photo-
copy of the notice is a tampered document. On what
(Judgment) (6) Cri. W.P. No. 01673 of 2016
basis the said statement is made, has not been
elaborated. When a copy of the notice is with the
complainant and as per the contents of the complaint
and verification, he has stated that the said notice
is received by the accused, there was no reason for
the learned Judicial Magistrate (F.C.) to reject the
application. In fact, the application Exhibit 45
ought to have been allowed. But it seems that there
was a misconception of law, that unless the notice
under Section 66 of the Indian Evidence Act is
issued, permission under Section 65 of the Indian
Evidence Act to lead secondary evidence cannot be
granted. Under such circumstance, for the above
reasons, the writ petition deserves to be allowed.
09. Hence, the following order :
Order
(a) The writ petition is allowed.
(b) The order passed by the Judicial Magistrate (First
Class), Court No.6, Ahmednagar, in S.C.C. No. 1506 of
2014, on 18.11.2016, below Exhibit 45, is hereby set
aside. The said application Exhibit 45 stands
allowed. The complainant is allowed to lead secondary
evidence regarding the documents namely, agreement
dated 08.12.2014 and notice dated 06.06.2014.
(c) Taking into consideration the fact, that the said
complaint was filed in 2014, the learned Judicial
(Judgment) (7) Cri. W.P. No. 01673 of 2016
Magistrate (F.C.) is directed to expedite the matter
and dispose if of by the end of February 2018.
(d) Rule made absolute in the above terms.
( Smt. Vibha Kankanwadi )
JUDGE
...........
puranik / CRIWP1673.16
