1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 837 OF 2009 1. Nanasaheb s/o Mohanarao Deshmukh, Age 31 Years, Occupation Service, 2. Vasant s/o Vitthalrao Kulkarni, Age 56 Years, Occupation Service, 3. Bharat s/o Giridharlal Jaju, Age 52 Years, Occupation Service, 4. Smt. Sindhe Maroti Shinde, Age 35 Years, Occupation Service, 5. Sk. Wajid Abdul Rahiman, Age 43 Years, Occupation Service, All R/o Latur, Taluka and District PETITIONERS Latur (Ori. Accused) V E R S U S The State of Maharashtra RESPONDENT Mr. A.S. Deshpande, Counsel for Petitioners. Mr. K.S. Patil, APP for respondent/State [ CORAM : V.R. KINGAONKAR, J. ] DATE : 18TH SEPTEMBER,2009 2 ORAL JUDGMENT 1. Rule. Rule made returnable forthwith and heard finally with consent of learned counsel for the petitioners and learned APP. 2. The petitioners are original accused persons, who were made to stand their trial in criminal case bearing R.C.C. No. 147 of 2000 pending on the file of learned Chief Judicial Magistrate, Latur. The gravamen of the charge is that the petitioners prepared forged documents with common intention to use the same in the course of proceedings before the Court. The charge has been framed by the learned Chief Judicial Magistrate. Thus the trial has commenced. The learned APP moved an application (Exh.83) seeking leave to admit the xerox copies of the municipal record in evidence. The request of the State was that such xerox copies may be read in evidence by exhibiting the same. The learned Chief Judicial Magistrate granted the leave. 3. Heard learned counsel and the learned APP. 4. The impugned order is cryptic. The learned Chief Judicial Magistrate granted the leave on the premise that original documents could not be produced. 5. The prosecution, in fact, did not lay foundation for the 3 purpose of invoking the powers under Section 65 of the Evidence Act. The plain reading of Section 65 would make it amply clear that the secondary evidence may be given regarding the contents of the document if the original document appears to be in possession of adversary or is proved to be destroyed. The categories of the documents are further clarified by giving separate instances below the Section itself. Assuming that the document in question is in the custody of the person (Municipal Council) and it is the legally bounden duty of the Municipal Council to produce the same, but the same has not been produced, in spite of notice as mentioned in Section 66, then also mere production of a xerox copy cannot be considered unless it is shown that the original document is lost or is not likely to be produced. The impugned order does not show whether notice under Section 66 of the Evidence Act was issued by the respondent (State). In this view of the matter, the impugned order is unsustainable. The document does not get proved unless the conditions enumerated in Sections 65 and 66 are complied with. A mere exhibiting of the document does not imply that the document is admitted in the evidence and is required to be read as it is. For, giving of exhibit to a document is only ministerial act and the party is not relieved of the burden to prove the contents. 6. For the reasons afore stated, the petition is allowed. The impugned order is quashed. However, the respondent may file afresh application, if it is found necessary and the trial Court may consider the 4 same, if it is satisfied that the compliance of Section 65 and 66 is made out and the loss of the document or unavailability of the same due to reasons beyond control of the respondent is established. Rule is made absolute accordingly. [ V.R. KINGAONKAR ] JUDGE srm/criwp837.09