Shri Gopal Shankarrao Deshmukh vs Jagdamba Nagri Sahakari ...
2017 Latest Caselaw 7190 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                        NAGPUR BENCH, NAGPUR.

                    CRIMINAL WRIT PETITION NO. 741 OF 2014

Shri Gopal Shankarrao Deshmukh,
aged about 41 years, Occupation
Agriculture, R/o At Po. Shendurjanghat,
Tah. Warud, District Amravati.                                     ... PETITIONER

                                            VERSUS

Jagdamba Nagri Sahakari Patsanstha,
At Po. Shendurjanghat, Tah. Warud,
Distt. Amravati, through his Officer
Shri K.B. Bokde, R/o Shendurjanghat,
Tah. Warud, Distt. Amravati.                                      ... RESPONDENT

                                   ....
Smt. S.W. Deshpande, Advocate for the petitioner.
None for the respondent.
                                   ....


                                        CORAM : P.N. DESHMUKH, J.

DATED : 14TH SEPTEMBER, 2017.

ORAL JUDGMENT :

None for the respondent. Record reveals that earlier with a

view to give opportunity to the respondent to defend the petition on

merits, though time was granted, the respondent chose to remain absent.

In the circumstances, heard Smt. Deshpande, learned Counsel for the

petitioner.

2. Challenge in this petition is to order impugned dated 06th

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August, 2014 passed by the learned trial Court below Exh.94 in SCC No.

670/2009 by which application filed by the petitioner (original accused) for

de-exhibiting documents came to be rejected.

3. Smt. S.W. Deshpande, learned Counsel for the petitioner has

submitted that the documents which are prayed to be de-exhibited by

filing application at Exh.94 before the trial Court was mainly on the ground

that the said documents came to be exhibited in the absence of petitioner/

accused or his lawyer when the examination-in-chief of respondent/

complainant came to be recorded. It is urged that at the first place the said

documents being tendered on the record in absence of the petitioner, he

had no opportunity to object exhibiting of said documents. It was urged

that as per the provisions of Section 272 of the Code of Criminal

Procedure, it was incumbent upon the trial Court to permit adducing

evidence on the record in presence of the accused. It is submitted that

taking such evidence on record and not considering the application for de-

exhibiting documents preferred by the petitioner would cause grave

prejudice to the petitioner. It is thus contended that the order passed by

the trial Court be quashed and set aside. Learned Counsel for the

petitioner has further submitted that in fact this Court, by its order dated

13th December, 2013 in Writ Petition No. 377 of 2013, on considering said

facts, had remitted back case to the trial Court for deciding Exh.94 afresh,

by specifically observing to re-consider the facts of exhibiting documents,

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if they were duly proved in accordance with law before they were exhibited

noting that it will be necessary to say that in the course of any criminal trial

documentary evidence tendered on the record is required to be exhibited

only in event of relevant documents being proved in accordance with the

provisions contained in the Indian Evidence Act pertaining to the proof of

contents of the document. The documents which are proved in such a

manner can only be marked as exhibit as per the provisions contained in

the Criminal Manual issued by this Court.

4. In the backdrop of above facts, perusal of the impugned order

passed on 06th August, 2014, would reveal that trial Court has rejected

petitioner's contentions finding that there is no provision for de-exhibiting

documents and that, the petitioner has every opportunity to cross-

examine the complainant/respondent and his witnesses with reference to

documents exhibited. The trial Court further held that the documents

tendered by the witness are technical in nature and by going further, held

that exhibiting documents is merely an ministerial act, and rejected the

application.

5. The reasons put forth by the learned trial Court are not at all

convincing as without any specific reason, there is nothing to establish as

to how the documents which are stated to be exhibited are merely

technical in nature. Secondly, the Court had even erred while noting that

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an act of exhibiting documents is merely ministerial act. The learned trial

Court thus appears to have totally neglected the observations of this Court

while remitting back the matter earlier. It is observed that the question

which was for consideration was whether the documents which came to be

exhibited during the examination-in-chief of respondent, in the absence of

petitioner, can be exhibited without taking recourse to prove the

documents as has been required under the provisions of Indian Evidence

Act. The trial Court appears to have failed to consider this issue in its true

perspective in spite of remitting back matter and pass the order which thus

appears to be totally uncalled for.

6. In the circumstances, the petition is allowed. Rule is made

absolute. Impugned order dated 06th August, 2014 passed by the trial

Court in Summary Criminal Case No. 670 of 2009 is quashed and set aside.

As it is noted that the proceedings before the trial Court are stayed since

October, 2014, the learned trial Court to expeditiously decide the same

preferably within the period of six months from the date of receipt of this

order.

JUDGE

*rrg.