Bombay High Court
Prabhakar S/O. Mahadeorao ... vs Rajendra S/O. Dadaji Gundawar on 30 January, 2018
Bench: S.B. Shukre
Cri.W.P. No.247/2017 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.247 OF 2017
Petitioner: Prabhakar s/o Mahadeorao Meshram,
Aged about 50 years, Occ. Business,
R/o 16, Gadge Nagar, Nagpur
-- Versus --
Respondent : Rajendra s/o Dadaji Gundawar,
Aged major, Occ. Business,
R/o Vishwkarma Road, Datala,
Chandrapur.
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Shri K.J. Rawandhe, Advocate for the Petitioner.
Ms. A.S. Wanjari, Advocate for the Respondent.
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CORAM : S.B. SHUKRE, J.
DATE : 30th JANUARY, 2018.
ORAL JUDGMENT :-
Rule. Rule made returnable forthwith. Heard finally by
consent.
02] By this writ petition, the order dated 23/01/2017 giving
permission to lead secondary evidence by the learned Judicial
Magistrate First Class, Chandrapur has been challenged. The
permission so granted is in respect of agreement dated
10/08/2004.
03] Upon hearing both the sides, I find that this order has
been passed in a clearcut violation of the mandate of Section 65 of
the Indian Evidence Act, 1872. Section 65 of the Indian Evidence
Act enumerates the cases in which such permission could be
granted by the trial Court. Here, we are concerned with a case,
which is covered by clause (c) of Section 65 of the Indian Evidence
Act laying down that the permission can be granted on the ground
that 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 a reasonable
time. For the sake of convenience, this clause (c) is reproduced as
under :
"(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."
04] It is obvious from the bare perusal of clause (c) of
Section 65 of the Indian Evidence Act that permission to lead
secondary evidence cannot be granted if it appears that the party
seeking such permission to lead secondary evidence cannot show
that original is lost or destroyed or cannot produce it for reasons
not arising from his own default or neglect in filing it within a
reasonable period of time.
05] In the present case, the affidavit filed in lieu of
examination-in-chief by the respondent on 10/12/2012 made a
solemn statement on oath that the original of the agreement dated
10/08/2004 was being filed on record along with the affidavit in lieu
of examination-in-chief. This affidavit also urges the Court that the
original agreement dated 10/08/2004 so filed on record be marked
as an exhibit. This statement appears in paragraph 2 of the
affidavit of the respondent. However, the respondent did not keep
his word made before the Court on oath. The respondent did not
file the original agreement dated 10/08/2004. It is further seen that
the respondent did not give any explanation for his failure to file
the original agreement dated 10/08/2004 within a reasonable
period of time after 10/12/2012. The learned Counsel for the
respondent also could not point any reasonable explanation having
been given in this regard. It is clear that the respondent made a
false statement before the Court that there was in existence a
document like agreement dated 10/08/2004 and that it would be
filed immediately on 10/12/2012 or at least within a reasonable
period of time thereafter.
06] It is further seen from the record of this writ petition
that on 12/08/2015, an application was moved by the respondent
seeking permission to file on record a photostat copy of the original
agreement dated 10/08/2004 on the ground that it was lost. In this
application also, the respondent has not stated anything about the
existence or otherwise of the original document on 10/12/2012 or
it's existence for some time after filing on record the affidavit in lieu
of examination-in-chief. The respondent has also not stated that it
was to be filed on or about 10/12/2012 but could not be filed as
subsequently it was lost or destroyed about which police report was
made. The respondent has only stated that he tried to search the
original document in eight days that preceded the date of
12/08/2015, but could not lay his hands upon the original document
and that was the reason why he preferred an application (Exh.105)
seeking leave of the court to adduce secondary evidence. In this
application, it is not also stated anywhere as to the probable time
during which in the opinion of the respondent, the original
document may have been lost. As stated earlier, the application is
completely silent upon the statement made on oath before the
Court in the affidavit in lieu of examination-of-chief.
07] The circumstances so referred to earlier would
inevitably lead to the conclusion that the original document dated
10/08/2004 was not filed by the respondent either for the reason of
his own neglect and default or for the reason that it never existed
and so question of it's being lost or destroyed never arose. This
being so, the respondent cannot be permitted to take advantage of
his own wrong. This is also the mandate of clause (c) of Section 65
of the Indian Evidence Act, which has not been followed by the
respondent to be entitled to seek permission to lead secondary
evidence.
08] All these material aspects of the case have not been
considered at all by the learned Magistrate and the result is of
patent illegality and perversity committed by the learned
Magistrate. The impugned order, therefore, must go.
09] At this stage, the learned Counsel for the respondent
has invited my attention to the decision rendered by the learned
Single Judge of this Court in the case of Karthik Gangadhar Bhat vs.
Nirmala Namdeo Wagh, reported in 2017 Law Suit (Bom) 2263. In
this case, nowhere it is held that even without fulfilling of the
essential conditions of Section 65(c) of the Indian Evidence Act, the
secondary evidence can be permitted to be adduced by a party.
I have already held that conditions of sub-clause (c) of Section 65
of the Indian Evidence Act have not been fulfilled in the present
case by the respondent and, therefore, no useful assistance can be
sought by the respondent from the said case of Karthik Bhat.
10] In the circumstances, the writ petition deserves to be
allowed. Hence, the order :
i. The writ petition is allowed.
ii. The impugned order is quashed and set aside.
iii. Application vide Exh.105 stands rejected.
iv. Rule is made absolute in the above terms.
(S.B. Shukre, J.)
*sdw
