Bombay High Court
Greenfield Plantations Private ... vs Deoraj S/O. Jethabhai Gosar And ... on 10 November, 2017
Bench: A.S. Chandurkar
APL826.16.odt 1/9
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.
::: Uploaded on - 18/11/2017 ::: Downloaded on - 19/11/2017 00:34:17 :::
APL826.16.odt 2/9
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
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
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
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
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
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
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
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/
