IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.2633 OF 2008 APPLICATION NO.2633 OF 2008 APPLICATION NO.2633 OF 2008 Geeta Marine Services Pvt Ltd & another .. Applicants Vs. The State & another .. Respondents Mr.Vijay Pradhan, Sr Counsel with Mr.R.Satyanarayanan i/by Ravindra Sharma for the applicants. Mr.D.R. More, A.P.P for the State. Mr.Joseph Verghese for the respondent no.2. WITH WITH WITH CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.331 OF 2008 WRIT PETITION NO.331 OF 2008 WRIT PETITION NO.331 OF 2008 Shri Ashutosh Mukhyopadyay .. Petitioner Vs. The State of Maharashtra & another .. Respondents Mr.S.V.Marwadi i/by Mr.S.P.Narkar for the petitioner. Mr.D.R.More, A.P.P for the State. Mr.R.Satyanarayanan with Mr.J.S.Darod for respondent no.2. WITH WITH WITH CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1170 OF 2008 WRIT PETITION NO.1170 OF 2008 WRIT PETITION NO.1170 OF 2008 WITH WITH WITH CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1171 OF 2008 WRIT PETITION NO.1171 OF 2008 WRIT PETITION NO.1171 OF 2008 WITH WITH WITH CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1172 OF 2008 WRIT PETITION NO.1172 OF 2008 WRIT PETITION NO.1172 OF 2008 Shri S.N.Khetan .. Petitioner (In all three petitions) Vs. The State of Maharashtra & another .. Respondents (In all three petitions) : 2 : 2 : 2 : Mr.S.V.Marwadi i/by Mr.S.P.Narkar for the petitioner in all three petitions. Mr.J.P.Yagnik, A.P.P for the State in all three petitions. Mr. Yashpal Thakur a/w Mr. Sameer Mohite, Mr.Vivek Patil and Ms Puja Zade i/by M/s.Paras Kuhad & Associates for respondent no.2 in all three petitions. WITH WITH WITH CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.738 OF 2008 WRIT PETITION NO.738 OF 2008 WRIT PETITION NO.738 OF 2008 Mr.Ketan Anant Rajpopat .. Petitioner Vs. The State of Maharashtra & another .. Respondents Mr.Uday Warunjikar for the petitioner. Mrs.P.P.Shinde, A.P.P for the State. Mr.Kafil Khan & Ms Archana Thakkar for respondent no.2. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATE DATE DATE : 19th & 22nd September 2008. : 19th & 22nd September 2008. : 19th & 22nd September 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . I have heard the submissions of the learned Counsel appearing for the parties. With a view to appreciate the submissions of the learned counsel appearing for the parties, it will be necessary to refer to the facts of the case in brief. 2. Criminal Writ Petition No.331 of 2008 has been filed for challenging the order dated 27th December 2007 : 3 : 3 : 3 : passed by the learned Metropolitan Magistrate by which an application made by the petitioner under section 145(2) of the Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act) has been rejected. The petitioner has been arraigned as an accused in a complaint filed by the 2nd respondent under section 138 of the said Act. The application was made by the petitioner contending that in view of sub section 2 of section 145 of the said Act, the 2nd respondent will have to appear before the Court and his examination-in-chief will have to be recorded with regard to the facts stated in the affidavit in lieu of examination-in-chief. 3. Criminal Writ Petition Nos.1170 of 2008, 1171 of 2008 and 1172 of 2008 have been filed by the same petitioner who has been arraigned as an accused in complaints filed by the 2nd respondent in these petitions under section 138 of the said Act. The challenge in these petitions is to the order dated 30th May 2008 by which the similar applications made by the petitioner under sub section 2 of section 145 of the said Act have been rejected. 4. In Criminal Writ Petition No.738 of 2008, the : 4 : 4 : 4 : 2nd respondent is the complainant in a complaint under section 138 of the Negotiable Instruments Act, 1881. Here again, the challenge by the petitioner accused is to the order passed on application made by the petitioner under section 145(2) of the said Act. 5. In so far as Criminal Application No.2633 of 2008 is concerned, the controversy is some what different. This application under section 482 of the Code of Criminal Procedure, 1973 has been filed by the accused in a complaint filed by the 2nd respondent under section 138 read with section 141 of the said act. Here, the challenge is to the order dated 02nd August 2008 passed by the learned Magistrate. In this case evidence was adduced by the complainant by filing an affidavit in lieu of examination-in-chief. The complainant stepped into witness box for recording a formal examination in chief in which he stated that the contents of the affidavit were as per his personal knowledge. He referred to the list of documents produced separately. In his examination in chief, the learned Judge noted that so far as proof of contents of document is concerned that will be decided on totality of evidence. The question of evidentiary value of the said documents was left open and the learned Judge : 5 : 5 : 5 : proceeded to exhibit the documents produced by the complainant. An application was made on behalf of the applicants accused contending that it was necessary to decide the issue of relevancy and admissibility of documents tendered by the 2nd respondent complainant at Exhibit P-2 to P-17 and Exhibit P-19 and the said documents be declared as inadmissible. By order dated 02nd August 2008, the leaned Magistrate rejected the said application by recording that provisions of paragraph 33 of Chapter VI of the Criminal Manual have been complied with. He observed that when the complainant entered the witness box, each and every document came to be exhibited. The learned Judge observed that paragraph 33 of Chapter VI of the Criminal Manual never contemplates a decision on the evidentiary value of the documents at the time of filing them in the Court. 6. The first submission made by the learned counsel appearing for the applicants/petitioners was on the interpretation of section 145(2) of the said Act. It must be stated here that when the view taken by a Division Bench of this Court on the interpretation of section 145(2) in the case of KSL and Industries Ltd Vs. Mannalal Khandelwal and another (2005 Criminal Law : 6 : 6 : 6 : Journal 1201) as well as the view taken by several learned single Judges of this Court was brought to the notice of the learned counsel appearing for the petitioners/applicants, it was pointed out that the said view is subject matter of challenge in Special Leave Petitions before the Apex Court which are being heard. Since this Court has already taken a view, no submissions are made on the said aspect of the case with a prayer that the said contention may be kept open. 7. The main submissions have been made on the procedure to be followed when the evidence of the complainant is recorded by permitting filing of an affidavit in lieu of examination in chief in a complaint under section 138 of the said Act. Shri Marwadi appearing for the petitioners in some of the petitions submitted that immediately after examination-in-chief in the form of an affidavit of the complainant is recorded, the learned Magistrate is under an obligation to consider whether the documents produced by the complainant are admissible in evidence and whether the said documents have been duly proved. He submitted that unless the issue regarding proof and admissibility of documents is immediately decided by the Magistrates, it is not possible to effectively cross-examine the : 7 : 7 : 7 : complainant as the cross-examiner does not know as to which documents are held as proved. He submitted there is well established practice followed in all Courts in the State that if cross-examination of a witness is made by referring a document to the witness, the said document is admitted in evidence and is marked as an exhibit. He submitted that in view of this practice, a seasoned advocate never cross-examines a witness on a document which is not proved by the rival party. His contention is that if issue of proof of the documents is postponed till final arguments, the advocate cross examining a witness is put to a disadvantage. His submission is that if the decision on the aspect of admissibility and proof of documents produced by the complainant is postponed till the final arguments, prejudice will be caused to the accused as advocate for accused is not in a position to effectively cross-examine the complainant or his witnesses. He has referred to several decisions, a reference to which is made in this judgment. Same are the submissions made by Shri J.P.Cama, the learned senior counsel appearing in support of Criminal Writ Petition No.738 of 2008. 8. The learned senior counsel appearing in support of Criminal Application No.2633 of 2008 referred to the : 8 : 8 : 8 : decision of the Apex Court in the case of Bipin Shantilal Panchal Vs. State of Gujarat and another (2001 Criminal Law Journal 1254) and submitted that what is laid down by the Apex Court therein is only a guideline. He submitted that the directions, if any, issued by the Apex Court are confined to an objection regarding admissibility of any material or any item of oral evidence and the directions do not relate to the procedure to be followed as regards marking the documents as exhibits. He submitted that even assuming that the Apex Court has laid down the procedure by the said decision, the Courts in Maharashtra are bound by the rules contained in Criminal Manual issued by this Court and therefore the Courts are bound by paragraphs 33 to 35 of Chapter VI of the Criminal Manual. He invited my attention to another decision of the Apex Court in the case of R.V.E.Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P.Temple and another (AIR 2003 Supreme Court 4548). He submitted that the observations in the judgment of the Apex Court in the case of Bipin Panchal (supra) are only in the nature of guidelines and the law as regards the admissibility and proof of documents has been laid down by the Apex Court in the said decision in the case of R.V.E. Venkatachala (supra). He also placed reliance on a decision of the : 9 : 9 : 9 : learned single Judge of this Court in the case of M/s.Sanjay Cotton Company Vs. M/s Omprakash Shiopraksh and another (AIR 1973 Bombay 40). 9. The learned counsel appearing for the respondents in Criminal Writ Petition Nos.1170 of 2008, 1171 of 2008 and 1172 of 2008 submitted that in so far as interpretation of section 145(2) of the said Act is concerned, the law laid down by this Court is very clear and the said interpretation put by this Court is binding. He invited my attention to a decision of the learned single Judge of this Court in the case of Peacock Industries Ltd and another Vs. M/s.Budhrani Finance Ltd and another (2006 ALL MR (Cri.) 2233) and submitted that this Court has held that after affidavit in lieu of examination-in-chief is filed, procedure as laid down in the case of Bipin Panchal (supra) has to be followed. Reliance is also placed on a decision of another learned single Judge of this Court in the case of Peacock Industries Ltd and another Vs. Wipro Finance Ltd and another in which this Court reiterated that the learned Magistrate has to follow procedure laid down in the case of Bipin Panchal (supra) so that there is no prejudice to any party. He invited my attention to what is held by the Apex Court in the case of Bipin Panchal : 10 : 10 : 10 : (supra) and submitted that the guidelines therein will have to be followed by all Courts. Similar submissions have been made by the counsel appearing for the original complainants in the other petitions. It was pointed out that atleast two single judges of this Court have held that the courts dealing with complaints under section 138 of the Negotiable Instruments Act, 1881 will have to follow the procedure laid down by the Apex Court in the case of Bipin Panchal (supra). 10. I have carefully considered the submissions. In so far as this Court is concerned, the issue of the interpretation of sub section 2 of section 145 of the said Act of 1881 is well settled. Paragraph 38 of the decision of Division Bench of this Court in the case of KSL Industries Ltd (supra) reads thus: "38. Sub-section (1) of section 145 gives complete freedom to the complainant either to give his evidence by way of affidavit or by way of oral evidence. If this is made on affidavit, the same has to be accepted and such affidavit is required to be kept on record by the Court. The second part of sub-section (1) provides that the complainant may give his evidence on : 11 : 11 : 11 : affidavit and may, subject to all just exceptions, be read in evidence in any enquiry, trial or other proceeding. Thus, it is clear that once the evidence of the complainant is given on affidavit, it may be read in evidence in any enquiry, trial or other proceeding, and it may be subject to all just exceptions." 11. There is a further decision of this Court in the case of Indo International Ltd and another Vs. State of Maharashtra and another (2005 (2) Bombay Cases Reporter (Cri.) 729). In paragraph 11 of the said decision, this Court has summarised the law laid down by the Division Bench in the case of KSL Industries (supra). The relevant part of paragraph 11 reads thus: " ..... Thus, the law laid down by the Division Bench in the decision of KSL Industries can be summarised as under: (a) The Court dealing with a complaint under section 138 of the said Act of 1881 has an option to take evidence of the witnesses on the side of the prosecution as well as evidence of : 12 : 12 : 12 : the accused and the defence witnesses, if any, on affidavit. (b) If the evidence of a witness is taken on affidavit, after an application is made by the other party under sub section (2) of section 145, it is not necessary to again record examination-in-chief of the witness whose affidavit of examination-in-chief is already filed. (c) If an affidavit is filed under sub section (1) of section 145 and an application is made under sub section (2) of section 145 by the other party, the witnesses must be made available for cross examination by the rival party. In my view, the decision of the Division Bench clearly and unambiguously lays down the aforesaid propositions of law and the Division Bench has clearly answered the issue which was referred to it by the learned single Judge of this Court." : 13 : 13 : 13 : 12. Therefore, so far as this Court is concerned, the view is settled. However, I am informed that now the Apex Court is seized of matters involving the said issue and therefore if any modification is made by the Apex Court in the view taken by this Court naturally the learned Magistrates will have to abide by the law laid down by the Apex Court. It was tried to be submitted that the decision of this Court in the case of Peacock Industries Ltd (supra) which has taken the similar view based on the case of KSL Industries (supra) has been stayed by the Apex Court. However, the law on this aspect is very clear. In the case of Pramod K. Shah Vs. Commissioner of Custom Export Promotion and another [2007 All MR (Cri) 1335] this Court has held that even if a decision of this Court is stayed by the Apex Court, unless the decision of this Court is set aside by the Apex Court, the Courts sub-ordinate to this Court are bound by the same. The said decision of this Court follows the decision of the Apex Court in the case of M/s.Shree Chamundi Mopeds Ltd Vs. Church of South Indian Trust Association, Madras (AIR 1992 Supreme Court 1434). 13. That takes me to the main issue which is canvassed in these petitions regarding procedure to be : 14 : 14 : 14 : followed regarding marking the documents as exhibits. I am dealing with a case where the parties lead evidence by filing affidavits. Whenever, an affidavit in lieu of examination in chief is filed, the witness has to enter the witness box and formally depose to the contents of the affidavit and only thereafter an affidavit can be read as examination in chief [See Shelatkar Construction Pvt Ltd. Vs. Creative Enterprises {2008 All MR (Cri) 475}]. After the said formal examination in chief is recorded, the stage contemplated by section 294 of the said Code of 1973 will come in the picture. The documents are required to be tendered alongwith a list and the rival party is called upon to admit or deny genuineness of such documents. As per sub section 3 of section 294 where the genuineness of any document is not disputed, such document may be read in evidence in the trial without proof of the signature of the person by whom it purports to be signed. Thus, when genuineness of the document produced is not disputed after being called upon as required by sub-ection 1 of section 294, the said document can be treated as proved and examination of a witness for proving the document is not required. In this behalf, it will be necessary to refer to a decision of Full Bench of this Court in the case of Shaikh Farid Hussainsab Vs. State of Maharashtra (1981 : 15 : 15 : 15 : Maharashtra Law Journal 345). Paragraph 7 of the said judgment reads thus: "7. 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 On On his his his admitting or indicating no dispute as to admitting or indicating no dispute as to admitting or indicating no dispute as to genuineness, genuineness, genuineness, the Court is authorised to dispense the Court is authorised to dispense the Court is authorised to dispense with with with its formal proof thereof. Infact after its formal proof thereof. Infact after its formal proof thereof. Infact after indication indication indication of no dispute as to the genuineness, of no dispute as to the genuineness, of no dispute as to the genuineness, proof proof proof of documents is reduced to a sheer empty of documents is reduced to a sheer empty of documents is reduced to a sheer empty formality. formality. formality. The section is obviously aimed at The section is obviously aimed at The section is obviously aimed at undoing undoing undoing the judicial view by legislative the judicial view by legislative the judicial view by legislative process. process. process." (Emphasis supplied) 14. The issue before the Full Bench was answered in paragraph 18 which reads thus: : 16 : 16 : 16 : "18. We accordingly hold that sub section (3) of section 294 of the Code covers post-mortem notes and every other document of which genuineness is not disputed. Thus such Thus such Thus such documents documents documents can be read in evidence as genuine can be read in evidence as genuine can be read in evidence as genuine without without without the formal proof. In our view, Ganpat the formal proof. In our view, Ganpat the formal proof. In our view, Ganpat Raoji’s Raoji’s Raoji’s case is not correctly decided." case is not correctly decided." case is not correctly decided." (Emphasis added) Therefore, the document which is admitted under sub section 3 of section 294 of the said Code of 1973 can be read in evidence as genuine without the formal proof of the said document. Therefore, after affidavit in lieu of examination in chief is filed and formal evidence of the witness is recorded, the exercise provided by section 294 of the said Code of 1973 will have to be completed by the learned Magistrate. 15. The real issue arises when a dispute is raised regarding the proof of a document or admissibility of a document in evidence which is tendered alongwith a list of documents or alongwith an affidavit in lieu of examination-in-chief. My attention was invited to the decision of the Apex Court in the case of Bipin Panchal : 17 : 17 : 17 : (supra). Paragraphs 12 to 15 of the said decision read thus: "12. It It It is an archaic practice that during is an archaic practice that during is an archaic practice that during the the the evidence collecting stage, whenever any evidence collecting stage, whenever any evidence collecting stage, whenever any objection objection objection is raised regarding admissibility of is raised regarding admissibility of is raised regarding admissibility of any any any material in evidence the Court does not material in evidence the Court does not material in evidence the Court does not proceed proceed proceed further without passing order on such further without passing order on such further without passing order on such objection. objection. objection. But the fall out of the above practice is this: Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional Court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. : 18 : 18 : 18 : Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-mouled to give way for better substitutes which would help acceleration of trial proceedings. 13. When When When so recast, the practice which can so recast, the practice which can so recast, the practice which can be be be a better substitute is this: Whenever an a better substitute is this: Whenever an a better substitute is this: Whenever an objection objection objection is raised during evidence taking stage is raised during evidence taking stage is raised during evidence taking stage regarding regarding regarding the admissibility of any material or the admissibility of any material or the admissibility of any material or item item item of oral evidence the trial Court can make a of oral evidence the trial Court can make a of oral evidence the trial Court can make a note note note of such objection and mark the objected of such objection and mark the objected of such objection and mark the objected document document document tentatively as an exhibit in the case tentatively as an exhibit in the case tentatively as an exhibit in the case (or (or