Karnataka High Court

K.Balasubramanian vs Hasham Investment And Trading ... on 8 December, 2021

Bench: Sreenivas Harish Kumar

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 08 T H DAY OF DECEMBER, 2021

                          BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

       CRIMINAL PETITION NO.9323 OF 2021

BETWEEN:

K.Balasub ramanian,
S/o Krishnamoorthy,
Aged about 54 years,
Chartered Accountant,
27 t h 4 t h Main Road,
Kasturib a Nag ar, Adyar,
Chennai-600020.
(Address above is as p er
 Aadhaar & same is p roduced)
                                          ...Petitioner
(By Sri Shakeer Abbas M., Advocate)

AND:

Hasham Investment and
Trading Comp any Pvt Ltd.,
HP House, 5 Janmabhoomi Marg ,
Fort, Mumb ai-400023
Represented by its Authorized Signatory
Sri Samb asivam Kailasam

Corporate Office at:
No.134, Dodd ankanelli,
Sarjapur Road ,
Beng aluru-560035.
                                         ...Respondent
(By Sri S.Ganesh, Senior Counsel for
    Sri Sri Venkatesh S. Arbatti, Advocate)
                              :: 2 ::


      This Criminal Petition is filed under Section 482
of Cr.P.C. p raying     to quash the ord er dated
25.11.2021     of the learned       XXIII A.S.C.J. and
A.C.M.M., Beng aluru in C.C.No.25456/2009 dismissing
the p etitioner application under Section 294 of the
Code and consequently direct the respondent to
forthwith complete the ad mission or denial of the
documents intended to be relied upon by the
petitioner in C.C.No.25456/2009 pending on the file of
XXIII A.S.C.J. and A.C.M.M., Bengaluru.

     This Criminal Petition coming on for orders
through video conferencing this d ay, the Court mad e
the following:

                          ORDER

This petition under section 482 Cr.P.C. is filed

by accused no.5 in C.C.No.25456/2009 on the file

of XXIII Addl. C.M.M., Bengaluru, a proceeding

under section 138 of N.I.Act, initiated by the

respondent. The events that have led the

petitioner to invoke jurisdiction of this court under

section 482 Cr.P.C. are as under:

2. The petitioner filed an application under

section 294 Cr.P.C. when the trial reached the

stage of recording defence evidence. The

petitioner wanted to tender 28 documents to :: 3 ::

obtain an admission or denial on the documents

from the respondent. Before making application

under section 294 Cr.P.C., the petitioner had also

filed an application under section 65 of the

Evidence Act for permitting him to produce

secondary evidence of some of the documents that

had been included in the list of documents

appended to the application under section 294

Cr.P.C. But by the time, the learned Magistrate

decided the application under section 294 Cr.P.C.,

she had already dismissed that application under

section 65 of the Evidence Act. Therefore for this

reason, as also for the other reasons that the

xerox copies were not admissible and that the

genuineness of the documents were questionable,

the Magistrate dismissed the application under

section 294 Cr.P.C. by her order dated

25.11.2021. This is the order assailed here.

:: 4 ::

3. Learned counsel for the petitioner, Sri.

Shakeer Abbas argued that the Magistrate has

misunderstood the scope of section 294 Cr.P.C.

Dismissal of application under section 65 of the

Evidence Act would not come in the way of

allowing the application under section 294 Cr.P.C.,

as it's scope is entirely different in the sense that

it is mainly intended to save the time during trial

and the admission given by a party on a particular

document dispenses with formal proof through a

witness. In this view, he argued that application

should have been allowed. He has placed reliance

on the following judgments in support of his

arguments:-

i) Saddiq and Others vs State [1980

SCC Online All 614]

ii) Shaikh Farid Hussinsab vs State of

Maharashtra [1981 SCC Online Bom

26] :: 5 ::

iii) Sonu Alias Amar vs State of Haryana

[(2017) 8 SCC 570]

iv) Shamsher Singh Verma vs State of

Haryana [(2016) 15 SCC 485]

4. Opposing the petition, Sri. S. Ganesh,

learned Senior Counsel for respondent, put

forward contentions that once the trial court

rejected the documents to be admitted as they

were inadmissible, the very same documents could

not be allowed to be produced indirectly under

section 294 Cr.P.C. The other documents which

did not form part of application under section 65

of the Evidence Act, were wholly irrelevant. In

this context, he has relied upon a judgment of the

High Court of Rajasthan in the case of Surendra

Kumar Vs. State of Rajasthan

(MANU/RH/0289/1991). He further argued that

the petitioner resorted to making application under

section 294 Cr.P.C. knowing very well the time :: 6 ::

frame fixed by the Supreme Court for disposal of

the case. With these contentions, he argued for

dismissal of the petition.

5. I have considered the points raised by the

learned counsel. The question to be considered is

whether the documents sought to be produced

under section 294 Cr.P.C. should pass the test of

admissibility and relevancy? Section 294 Cr.P.C.

is akin to Order 11 Rule 1 CPC, both provisions are

aimed at saving the time during trial. One party

to the proceeding may produce a document and

call upon his opponent either to admit or deny it.

If admitted, such document may be read in

evidence; this is purely procedural which

dispenses with its proof for, the party has

admitted it. Proviso to section 294 Cr.P.C. states

that despite document being admitted, the court

may, in its discretion require the signature on the

document to be proved.

:: 7 ::

6. If the judgments cited by the learned

counsel for the petitioner are referred to, what is

held by the High Court of Bombay in the case of

Shaikh Farid Hussinsab (supra) is:

           "6.    Section         294       of    the    Code           is
    introduced           to       dispense             with        this

avoidable waste of time and facilitate removal of such obstruction in the speedy trial. The accused is now enabled to waive the said right and save the time. This is a new provision having no corresponding provision in the repealed Code of Criminal Procedure. It requires the prosecutor or the accused, as the case may be, to admit or deny the genuineness of the documents sought to be relied against him at the outset in writing. On his admitting or indicating no dispute as to the genuineness, the Court is authorised to dispense with its formal proof thereof. In fact after indication of not dispute as to the genuineness, proof of documents is reduced to a sheer empty formality. The section is obviously aimed at :: 8 ::

undoing the judicial view by legislative process.

7. The preceding Section 293 of the Code also dispenses with the proof of certain documents. It corresponds with Section 510 of the repealed Code of Criminal procedure. It enumerates the category of documents, proof of which is not necessary unless the Court itself thinks it necessary. Section 294 makes dispensation of formal proof dependent on the accused or the prosecutor, not disputing the genuineness of the documents sought to be used against them. Such contemplated dispensation, is not restricted to any class or category of documents as under section 293, in which ordinarily authenticity is dependent more on the mechanical process involved than on the knowledge, observation or the skill of the author, rendering oral evidence just formal. Nor it is made dependent on the relative importance of the document or probative value thereof. The documents being primary or secondary or :: 9 ::

substantive or corroborative, is not relevant for attracting Section 294 of the Code. Not disputing its genuineness is the only solitary test therefore."

7. In Saddiq (supra), the Allahabad High

Court has held as below:

8. ......... But where the genuineness of a document filed by the prosecution or the accused under Sub-section (1) of Section 294 Cr. P.C. is not disputed by the opposite party, Sub-section (3) of Section 294 Cr. P.C. is applicable and a document may be read as substantive evidence. Section 294 Cr. P.C. is a new section as it had no equivalent in the Code of Criminal Procedure 1898. It is based on the rule of evidence that facts admitted need not be proved, contained in Section 58 Evidence Act. The object of enacting this section appears to be to avoid the time of the Court being wasted by examining the signatory of the document filed by the prosecution or the accused under Sub-section (1) of Section 294 Cr. P.C. to prove his :: 10 ::

signature and the correctness of its contents if its genuineness is not disputed by the opposite party. ........."

8. In the case of Sonu @ Amar, the scope of

section 294 Cr.P.C. did not arise for discussion,

but a reference is made to the decision of the

Bombay High Court in Shaikh Farid Hussinsab. It

is held that Shaikh Farid Hussinsab is not

applicable to the facts in Sonu @ Amar.

9. The decisions cited by the petitioner's

counsel actually do not deal with the question

under consideration here. Though the Bombay

High Court has made an observation in Shaik Farid

that the production of the documents under

section 294 Cr.P.C. cannot be made dependant on

the relative importance of the document or the

probative value, it is also further observed that

not disputing the genuineness of document is the

solitary test. The High Court of Rajasthan did not

interfere with the order of the trial court which :: 11 ::

rejected the application under section 294 Cr.P.C.

What is held is:

5. Now, I take-up the question : whether the application under Section 294 Cr.P.C. filed by Yaspal Bhatiya, was rightly dismissed by the learned lower Court or not? The learned Special Judge dismissed the application under Section 294 Cr.P.C. filed by Yaspal Bhatiya, only on the ground that the documents filed by Yaspal Bhatiya are neither original nor the certified copies of the originals. They are merely the photostat copies which are not admissible in evidence. The learned Special Judge, therefore, opined that the accused can obtain the certified copies of the original documents and can file the same in the Court and thereafter he can move an application for summoning the original documents and can put-up those documents to the witnesses in their cross-examination. Unless and until the original documents or the certified copies thereof are filed, the prosecution cannot be asked to admit or deny the :: 12 ::

documents as these documents are not admissible in evidence. In rejecting this application, also, the learned Special Judge has not committed any illegality. When the documents themselves are not admissible in evidence, as neither they are certified copies nor the original documents, then the prosecution cannot be asked to admit or deny the documents. The order passed by the learned lower Court, rejecting the application under Section 294 Cr.P.C. also, does not require any interference. It may further be mentioned that the application under Section 294 Cr.P.C. was filed by Yaspal Bhatiya and not by the petitioner and Yaspal Bhatiya did not raise any grievance against the order rejecting his application. In this view of the matter, the order passed by the learned lower Court, rejecting the application under Section 294 Cr.P.C. filed by Yaspal Bhatiya, also, does not require any interference................."