Calcutta High Court (Appellete Side)

Sayad Aftabur Rahaman vs The State Of West Bengal & Ors on 23 November, 2022

               IN THE HIGH COURT AT CALCUTTA
                        Criminal Revisional Jurisdiction

                               (Appellate Side)

Present:

The Hon'ble Justice Rai Chattopadhyay


                            C.R.R 2207 of 2016

                       Sayad Aftabur Rahaman

                                  Vs.

                The State of West Bengal & Ors.


       For the Petitioner                 : Mr. Sudipto Maitra,
                                           Mr. Kallol Mondal.


       For the OP nos.2 &3               : Mr. Soumyajit Das Mahapatra


       For the State                     : Mr. Narayan Prasad Agarwala,
                                           Mr. Pratick Bose.

       Hearing Concluded on               : 07.11.2022

       Judgment On                       : 23.11.2022
                                     2



Rai Chattopadhyay, J.:


1.

In this revision petitioner has challenged the judgment dated 14 th

March 2016, passed by the Additional Chief Judicial Magistrate, Uluberia,

Howrah, in Misc. Case No. 343 of 2014 (re-numbered as Misc. Case

No.348 of 2015), i.e, a proceeding under Section 127 Cr.P.C,1973,

initiated by the present petitioner in the Trial Court.

2. The background, in brief, of the entire case leading to filing of the

present revision may be narrated as follows.

3. The petitioner had earlier been directed by the Court to pay

monthly maintenance allowance to the tune of Rs. 5000/- to the opposite

party no.2 and Rs. 3000/- to the opposite party no.3 being his wife and

minor son respectively, in a proceeding under Section 125 Cr.P.C, 1973,

being Misc. Case No.67 of 2010. The said order of the court was founded

upon the fact and reason that the petitioner was a tax practitioner by

profession and was earning sufficiently. There were other grounds that the

present opposite party no.2 had no independent source of earning for

maintenance of herself and the minor child. A comparative discussion

was made regarding status of the parties. After considering all these the

Court directed the petitioner to pay maintenance as per the terms as

mentioned above.

4. It is submitted that since thereafter the petitioner has been

regularly and diligently paying maintenance allowance to the opposite

party no.2 and 3 in due compliance with the Court's order as above. It is

submitted that the circumstances changed with passing of time and

leaving his profession, the petitioner has undertaken service with an

employer namely M/s. Raj Refractories Pvt. Limited from the date 2 nd May,

2014. This had prompted the petitioner to file a case under Section 127

Cr.P.C, 1973, in the court on 22nd October, 2014 being Misc. Case No.343

of 2014 (re-numbered Misc. Case No.348 of 2015). There he contented

inter alia that, his profession shrunk and he lost clients. Thus, he was

unable to secure a sufficient income with the passing of time and could

not any more carry on in the profession. He also put forth the ground of

his not being successful in profession being disturbed and agonised due to

several litigations with opposite party no.2 following their matrimonial

wrangling. He stated that all these have led him to leave his profession as

an income tax practitioner and undertake employment as mentioned

above for a monthly salary of Rs.5000/-. He has also stated before the

court in his case under Section 127 Cr.P.C, 1973, that excepting salary

income as above he has been left with no other source of income and thus

his capacity to pay maintenance has substantially been changed and

slumped. He further stated that opposite party no.2 has been earning

Rs.15000/- per month by imparting tuitions. On all facts and grounds as

above he prayed before the court that necessary order of modification of

the maintenance amount may be passed by either decreasing or waiving

the same.

5. The wife/opposite party no.2 has contested the case by filing her

affidavit in the Court stating inter alia that the case of the petitioner under

Section 127 Cr.P.C, 1973, is only an eye wash and based upon facts and

statements which are not true. She has stated on affidavit that excepting

income from practice the petitioner would also have other sources of

income like landed property etc. She has categorically denied and

disputed the contention of the petitioner that he has started earning only

a paltry amount of Rs.5000/- per month by doing service with the

company as named above. She denied petitioner's contention regarding

her own income.

6. This being the crux of the case and upon consideration of the

evidence on record the Court has passed the judgment dated 14 th March,

2016, which is impugned in this revision. In the said judgment the court

had proceeded to find impropriety as regards the evidence advanced by

the present petitioner regarding his new avocation or income, as claimed

by him. Court has disbelieved the appointment letter/income proof cited

before it. Court has come to the finding about no change of

circumstances in case of the present petitioner so far as his liability to pay

the amount of maintenance as per direction of the court, is concerned.

Petitioner's prayer under Section 127 Cr.P.C, 1973 was rejected and the

case was dismissed.

7. Mr. Maitra, appearing for the petitioner, while expressing fervid

and strong grievances against the impugned judgment, has categorically

argued that the same suffers from absolute non-application of mind by the

author of it, who has failed to exercise jurisdiction vested in it by law,

while delivering the same. It has been submitted that the court has

grossly been unsuccessful in appreciating the change in circumstances.

Argument has also been made on the point that the reason on which the

court has founded its decision, has never been urged by the opposite

parties, i.e, the court has erroneously disbelieved the proof of income of

the petitioner, particularly in absence of any challenge or objection to the

same and this has rendered the court's order to be perverse. It is

petitioner's categorical submission that with the income proof document

produced and proved by him in court, which has never been disputed or

objected to by the opposite parties, Section 94 of Evidence Act would have

been applicable and proof of such document or its contents would not

have been imperative. The following two judgments are also relied on:-

(i) General Court-martial & Ors. Vs. Col. Aniltej Singh

Dhaliwal, reported in (1998) 2 SCC 756.

(ii) Kamla Devi vs. Takhatmal Land Another, reported in AIR

1964 SC 859.

8. By referring to Section 94 of the Evidence Act, it has been

submitted that in absence of any objection raised as to the contentions of

the appointment letter of the petitioner, the court is erroneous in not

considering the contention of the same as it is and also has failed to apply

its mind that the appointment letter accurately and conclusively indicate

the existing fact of his present engagement with the company named

above. Such non consideration by the Trial Court, according to the

petitioner, is in violation of the said provision of law. The two judgments

are relied on to elaborate this point which shall be discussed in due

course.

9. Strong objection has been raised on behalf of the opposite party

no.2/wife as to the facts and grounds pleaded by petitioner in this

revision. It is submitted that petitioner's income has only enhanced and

not diminished in any way as stated by him. It is further submitted that

the trial court has considered the entire evidence on record both oral and

documentary and thereafter has come to a just finding, which may not be

interfered with by this court in this revision.

10. Heard submissions. Perused the pleadings and documents

including the certified copy of the impugned judgment. There is a very

short point involved in this revision to be determined by this court, i.e,

whether the trial court has been just and proper in disbelieving the

present income of the petitioner, his appointment letter which is an

income proof too and the change in circumstances as pleaded by the

present petitioner before it. Petitioner has admitted that previously he

has been practicing income tax and earning sufficiently. It is his

categorical case that since his practice was not successful and he was

not being able to settle down by huddling considerable number of client's

base and the reasons he attributed to the disharmonious matrimonial

life, he had to opt for a regular income by undertaking employment with

M/s. Raj Refractories. He says that he has been working in the said

factory since 2nd May, 2014 and earning an amount of Rs.5000/- per

month. To prove his income he has exhibited his appointment letter

issued to him by the said company. He has also cited a witness, i.e, the

manager of the company, to corroborate his statement as above.

11. However, the court has disbelieved the appointment letter and

found that to prove appointment to be beyond reasonable doubt the

petitioner had to take recourse to more appropriate evidence and found

the evidence of the petitioner to be insufficient to duly prove the fact of

change in circumstances, he has pleaded before the court.

12. According to Mr. Maitra, who is representing the petitioner, the

court has erred in not relying on the contention of the exhibited

appointment letter as the language would have been very clear and

indicative about the fact of his engagement and salary with the said

company. According to him this is in violation of Section 94 of the

Evidence Act. At this stage one may learn the provision itself, which is as

follows:-

"94. Exclusion of evidence against application of document to existing facts. - When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts.

Illustration

A sells to B, by deed, "my estate at Rampur containing 100 bighas." A has an estate at Rampur containing 100 bighas. Evidence may not be given of the fact that the estate meant to be sold was one situated at a different place and of a different size."

13. Thus, Section 94 of the Act provides for exclusion of evidence

regarding contention of a document when language used in a document is

plain in itself and accurately applying to the existing fact. These

categorically apply in case of admission of the contention of the document

as evidence.

14. The judgments relied by Mr. Maitra emphasises on this point in

the following manner:-

(1998) 1 SCC 756, - in this judgment the Apex Court has

been pleased to hold that Section 98 of the Evidence Act will

come into play when there is a document and its language has

to be considered with reference to the particular factual

situation. It is further been held that the said section will

apply only when the execution of the document is admitted

and no vitiating circumstance has been put forward against

same. The court further went on to find that an admission

can be explained by the makers thereof. The Apex Court

referred to the previous judgment of Nagubai Ammal vs. B.

Shama Rao reported in AIR 1956 SC 593, wherein the Court

held that an admission is not conclusion as to the truth of the

matter stated therein and it is only a piece of evidence, the

weight attached to it must depend upon the circumstances

under which it is made.

15. AIR 1964 SC 869 - in this judgment the Hon'ble Apex Court has

discussed the rule of construction of documents. The relevant paragraph

may be quoted below:-

"Sections 94 to 98 of the Indian Evidence Act afford guidance in the construction of documents; they also indicate when and under what circumstances externsic evidence could be relied upon in construing the terms of a document. Section 94 of the Evidence Act lays down a rule of interpretation of the language of a document when it is plain and applies

accurately to existing facts. It says that evidence may be given to show that it was not meant to apply to such facts. When a Court is asked to interpret a document, it looks at its language. If the language is clear and unambiguous and applies accurately to existing facts, it shall accept the ordinary meaning, for the duty of the Court is not to delve deep into the intricacies of the human mind to a certain one's undisclosed intention, but only to take the meaning of the words use4d by him, that is to say his expressed intentions. Sometimes when it is said that a Court should look into all the circumstances to find an author's intention, it is only for the purpose of finding out whether the words apply, accurately to existing facts. But if the words are clear in the context of the surrounding circumstances, the Court cannot rely on them to attribute to the author an intention contrary to the plain meaning of the words used in the document."

16. Regarding the appointment letter and its probative value, the Trial

Court has held in the impugned judgment that, when objected to, the

exhibition of letter of petitioner's alleged appointment containing terms

and conditions of his alleged service was mandatorily to be proved beyond

all reasonable doubt, with the aid of additional evidence. He weighed the

same as a suspicious document, cast in a shadow of doubt thereon and

disbelieved the same.

17. Petitioner's contention that the document in question has never

been objected to by the opposite party can well be defied by referring to

the deposition in the case, which categorically show that at the time of

exhibition of the said document, the same has been objected to, as noted

by the court in the evidence. Therefore by following the Apex Court's

judgment of 1998, as mentioned above, "vitiating circumstances" do exist

in this case as regards the execution of the said document, which is

counter productive, so far as application of section 94 of the Evidence act,

to this case is concerned.

18. The documentary evidence is required to be proved in accordance

with law. Under the Act, the Court usually accepts a fact as proved when

after considering the document and the evidence before it, it comes to a

conclusion that what is stated in the document is believable based on

what the document on the face of it states along with what a witness to

the document states about the contents and the manner in which the

document was prepared/authored. This is the heart of the matter and it is

when the court believes not only in the existence but also truth of the

contents, appreciates its value as a believable piece of evidence.

19. At the stage of evaluation of the document, the Court looks at two

basic aspects, one, the existence of the document and secondly the proof

of contents being sufficiently deposed to by a witness having requisite

knowledge of the contents thereof. On being satisfied with both these

criteria the document in question will be believed. At the stage of

exhibiting documents the truth of what is stated in the document is not

considered and is left open to final evaluation at the trial after cross-

examination is conducted and the entire testimony of the witness on the

document is weighed. It is then that the Court concludes if the document

speaks the truth or not and decides what weightage is to be given to it for

arriving at a final decision in the matter.

20. Necessity to prove the contents of the document is not for the

reason to know that something is stated in the same but to ascertain

whether what is stated in the same is correct. That can only be proved by

somebody who knows about the document itself or who was a party to

make the document or had verified the document or approved it or signed

it with knowledge of its contents. This only would satisfy the requirement

of direct evidence under sections 60 to 62 of the said Act.

21. It is not enough only to depose that letter of appointment was

issued. What is crucial is the content of and that can only be proved by

the person who authored the same on the basis of knowing the facts

stated therein. Therefore what must be shown if the document is sought

to be proved sufficiently is to give direct evidence under section 60 of the

said Act by a person who is aware of the source and origin of the facts

stated therein. A reading of the evidence must show that the witness has

personal knowledge of the entire mechanism and the decision making

process for the said document coming into being and the contents thereof.

He should be able to depose sufficiently and withstand the cross

examination over the particular document originated under his hand or he

has been a direct witness of the document being originated and has full

knowledge of the transaction the document intended to make and has

actually made. Only in such a situation, the probative value of the said

document would be sufficient, to enable the court to believe its existence

and contents.

22. It is profitable to note the following observation of the Apex Court,

made in a case reported in (2003) 8 SCC 745 [Narbada Devi Gupta vs.

Birendra K. Jaiswal] :

"16. The legal position is not in dispute that mere production and making of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, i.e, by evidence of those persons who can vouchsafe for truth of the facts in issue".

23. This being the settled position of law, the argument advanced that

principle under section 94 of the Act would govern the admissibility of the

appointment letter, as produced before the Court by the petitioner, does

not appear to be founded on the settled laws and does not inspire

confidence of this court unto the same. It is more particularly so, when

the evidence of the parties in the Trial Court show at the time of

production of the said letter in court, objection has been raised thereto.

Petitioners contention, that only the original letter of appointment has

been served to him as an appointee does not convince, in so far as, until

and unless its acceptability and probative value could be established in a

court, by following the methodology to do that as provided in law, it would

not be a piece of evidence in a court of law.

24. Record shows that neither the petitioner nor the other witness who

has been examined on petitioner's behalf (manager), could advance

evidence as to their knowledge about the source and origin of the letter of

appointment, desired to be proved in the court, be it the very existence of

the same or the contentions thereof. It is thus found that the Trial Court

has discernably and objectively considered the evidence on record, in its

proper perspective to disprove the probative value of the letter of

appointment, produced by the petitioner before it.

25. Thus this document, in absence of any direct evidence as to the

same, cannot be treated as a primary piece of evidence. It has also not

been able to satisfy the criteria to be treated as a secondary evidence in

view of the law laid down by the Apex Court in a judgment reported in

(2011)4 SCC 240 [H. Siddiqui vs A. Ramalingam] , as follows :

"12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is

inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] , State of Rajasthan v. Khemraj [(2000) 9 SCC 241 : AIR 2000 SC 1759] , LIC v. Ram Pal Singh Bisen [(2010) 4 SCC 491 : (2010) 1 SCC (L&S) 1072 : (2010) 2 SCC (Civ) 191] and M. Chandra v. M. Thangamuthu [(2010) 9 SCC 712 : (2010) 3 SCC (Civ) 907] .)"

26. It shall not be out of place to mention that neither the petitioner,

who has produced and exhibited the appointment letter in court, nor the

other witness (manager) have ever deposed to have authored or be a part

or witness of the process of its origin or have any direct knowledge of its

source.

27. Hence, any infirmity and/or illegality can hardly be found in the

impugned judgment dated 14th March, 2016, when the Trial Court

dismissed petitioner's case disbelieving his evidence as to the change in

circumstances.

28. Accordingly this revision merits no success.

29. On the discussion as above, CRR 2207 of 2016 is dismissed.

30. It is made clear that the petitioner shall continue to pay