* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2558 OF 2007 W I T H CRIMINAL WRIT PETITION NO.2141 OF 2008 M/s.Gogate Refrigeration and anr. .... Applicants/Petnrs V/S. Anchor Daewoo Industries Ltd. ...Respondent ======= Mr.Uday Warunjikar, advocate for petitioners/applicants. Mr.Kafil Khan i/by.Ms.M.M.Kadam, advocate for respondents. Mrs.A.A.Mane, APP for State. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 2ND MARCH, 2009. P.C.: 1. Heard counsel for both sides. 2. This is a common order on the above two applications, as the issues arising thereunder are not capable of considering separately. When the complaint was posted for arguments, after completion of evidence, two applications came to be filed by the applicants. The first application was dated 17th November, 2005 for admission of the documents produced by the applicants in evidence and marking them as exhibits. While that application * 2 * was pending, the applicants filed another application dated 2nd March, 2007 for recalling their own witness. The learned Metropolitan Magistrate granted the second application and in view of grant of the second application, rejected the first application. Respondent no.1 challenged the order on the second application by preferring Criminal Revision Application No.827 of 2007 before the Sessions Court. The Revision Application was allowed by the order dated 11th July, 2008. The applicants have filed the above writ petition to challenge the order of the Sessions court and the above application to challenge the order of the learned Metropolitan Magistrate. 3. Mr.Warunjikar, the learned counsel for the applicants/petitioner submits that after respondent no.1 closed his evidence on the complaint, affidavit of examination-in-chief of applicant no.2 was filed. On the date on which applicant no.2 was to be cross-examined, Mr.Warunjikar had to leave the court in order to attend to a social engagement in which he was required to give a lecture on the subject of law. Before leaving the court, he had sought permission of the learned Judge. Therefore, when further evidence commenced on the complaint, the applicants were without the assistance of their lawyer. Consequently, they were unable to point out to the court that the documents tendered by them in support of their defence should be admitted in evidence and marked as exhibits. * 3 * This lacuna was realised only at the stage of arguments in the matter and therefore the two applications came to be filed. 4. Mr.Warunjikar, the learned counsel for the applicant, submits that it was the duty of the court to exhibit the documents on the basis of the affidavit of examination-in-chief filed by the applicant. As rightly pointed out on behalf of respondent no.1, none of the documents sought to be produced by the applicant are original documents. Thus, the documents are in the nature of secondary evidence. Such documents could not have been allowed to produce in evidence unless certain conditions as required by the law, therefore are established. Therefore, no fault can be found in the order dated 31st May, 2007 passed in C.C.No.2227/SS/2004 by the learned Metropolitan Magistrate, 33rd Court, Ballard Pier in rejecting the application for exhibiting the documents. 5. The learned Metropolitan Magistrate however in order to ensure that the ends of justice are met, had permitted the applicants to recall their witness, so that if the applicants were to establish the necessary preconditions, the documents can be allowed to be produced in evidence in accordance with law. The learned Sessions Judge, however, set aside this order observing that by passing such an order, the learned Magistrate took a U-turn, and the order shows that the judge was pre- determined to exhibit the documents which cannot be exhibited in * 4 * law. The observations are patently incorrect. All that the learned Magistrate was doing was to give an opportunity to the applicants to lead evidence for the purpose. That does not mean that the documents would get exhibited automatically. The court would allow the documents to be produced in evidence only if the requirement of law in producing secondary evidence is met. Therefore, neither the observations in the Sessions court's order nor the order can be justified. The same must be set aside. Hence, the order. O R D E R (i) Criminal Application No.2558 of 2007 is dismissed. (ii) Criminal Writ Petition No.2141 of 2008 is allowed. The judgment and order dated 11th July, 2008 passed in Criminal Revision Application No.827 of 2007 by the learned Sessions Judge, Greater Bombay is set aside. [SMT.R.P.SONDURBALDOTA, J] * 5 *