1 Cri.WP No.1127/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1127/2010 Sandhya w/o Rajendra Bhatankar - PETITIONER VERSUS 1) Sanjay s/o Kashinath Pawar - RESPONDENT ***** Mr.SD Ghayal Advocate for Petitioner; ----- CORAM : K.U.CHANDIWAL, J. DATE : 7th February, 2011. PER COURT : 1) Heard finally. Rule made returnable forthwith. 2) By this writ petition, the petitioner, accused in proceedings under Section 138 of the Negotiable Instruments Act, bearing SCC No.7083/2009 for dishonour of cheque of Rs.31,50,000/-, questions exhibiting of the document. The order of learned JMFC, Aurangabad, rejecting such application to de- exhibit the document from Exhibits Nos. 153 to 195 or to re-verify the same, is challenged.. 3) The accused/petitioner carried the 2 Cri.WP No.1127/2010 matter, being aggrieved by rejection dated 21.10.2010 to the learned Additional Sessions Judge in Criminal Revision No. 298/2010. The learned Additional Sessions Judge did not agree to the contention of the accused/petitioner. Hence, writ petition. 4) The principal contention of Mr.Ghayal, learned Counsel for petitioner is, in the light of Full Bench judgment of this Court in the matter of Mr.Hemendra Rasiklal Ghia Vs. Subodh Mody, reported in 2009 (1) Mah L.R. 311, the course, that has been adopted by the learned JMFC, is uncalled for and illegal too. Hence, he has repeatedly indicated to set aside the order. 5) At this stage of the matter, I need not to travel to the interse accusations between the complainant and the petitioner, they can be dealt with at appropriate stage by learned JMFC. What is crucial is, exhibiting the documents at 54 to 56, 60 to 62 and few more. The learned JMFC, after hearing both the sides and perusal of the record, informed that there is no occasion to re-verify exhibiting of the documents. He also made it clear, marking of exhibit to any document does not mean proof of the document, the proof of 3 Cri.WP No.1127/2010 the document rests to the shoulder of the person producing the document. He has also clarified that exhibiting of the documents will be considered only on the basis of evidence of proof of document and then only there will be adjudication. The learned JMFC further clarified, if two or three documents are given identical Exhibit number or different numbers, that can be cured, which is a technical mistake. Even if one document is placed at two places and exhibited, that also can be corrected. The learned JMFC further observed such exercise can be done even at the stage of decision if some documents are irrelevant, not occasioned to the cause postulated, it was not stage riped to deal with the same. 6) The learned Revisional Court has browsed to the provisions of Order XVIII Rule 4 of the Amended Code of Civil Procedure. The learned Judge interpreted Rule 4 envisaging the provisions of recording evidence and also procedure of Examination-in-chief of witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the parties who calls him for evidence. 7) Proviso to sub-rule (1)(4) of Order 4 Cri.WP No.1127/2010 XVIII demonstrate, “where the documents are filed and the parties relied upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to order of the Court.” This, “ subject to order of the court” has clearly been indicated by the learned JMFC while dealing with the objection of the writ petitioner. It is difficult to conceive that the learned JMFC has made up his mind to accept as gospel truth as to contents in those documents, to which objection was raised. 8) In the matter of Hemendra Rasiklal Ghia (cited supra) the Lordships formulated two questions, as under - “Question-A. At which stage, the objection to the admissibility and/or proof of document which may be produced or tendered should be raised; considered and decided by the Court? Question-B. At which stage, an objection to the admissibility or relevancy of evidence contained in the affidavit filed under Order XVIII rule 4 of C.P.C. should be considered and decided by the Court?” 9) In paragraph 59 onwards the answers to Questions A and Question-B as above are 5 Cri.WP No.1127/2010 recorded. In paragraphs 75 and 77, it has been observed as under, - “75.If the objection to the proof of document is not decided and the document is taken on record giving tentative exhibit, then the right of the cross- examiner is seriously prejudiced. Once the document is used in cross-examination, then the document gets proved and can be read in evidence as held by the Supreme Court in the case of Ram Janki Devi vs. M/s.Juggilal Kamlapat, 1971 (1) SCC 477. If the cross-examiner decides not to cross-examine based on unexhibited document and, ultimately, at the fag end of the trial, the document is held to be admissible and proved, then, the cross-examiner as a rule of fair play would be entitled to further opportunity to cross-examine based on that document resulting in delayed trial defeating the very object and purpose of the amendment to the C.P.C.” “77. Thus, we hold and rule that ordinarily an objection to the admissibility of the document in first and second categories of cases (excluding third type of case) has to be taken before the document is exhibited which, necessarily, postulates decision on the objection then and there. In other words, whether document is admissible or inadmissible is matter which should always be 6 Cri.WP No.1127/2010 ruled upon at the time when the document is being proved or put in or the question asked to the witness. Such practice and procedure is fair to both parties.” 10) Paragraph 79 of the said judgment illustrate as under, - “We may make it clear that a ruling as regards admissibility of evidence should be as brief as possible since no appeal lies against such order, it not being a “judgment”. Once the ruling has been given, there should be no interruption in the trial and the trial Court should proceed with the trial to judgment without interruption. In the judgment the order should incorporate fuller reasons, if need be, for holding particular evidence to be inadmissible.” 11) In paragraph 89, the full Bench has observed as under, and the question B is answered in paragraph Nos.90, 91 and 92 - 89. The different cases will have different facts. Each case must be dealt with on its own facts. No strait jacket formula can be evolved. The C.P.C. has been amended from time to time in order to meet the changing situations. The courts trying the suit or proceedings involving peculiar facts do have 7 Cri.WP No.1127/2010 a discretion to work out its own procedure and determine the stage of deciding the admissibility of the documents for the reasons to be recorded, if it advances the cause of justice without causing prejudice to the rights of either of the parties. The discretion should not be used fancifully. It is quite possible that sometimes when party fails to substantiate the allegations, he may resort to dilatory tactics to harass the opponent by filing irrelevant and frivolous documents to prolong the continuance of the case. This should be checked by exercising power available with the Court. As already said, procedure is always evolved to serve the ends of justice, miscarriage of justice. ” Question-B. ----------- 90. So far as Question-B relating to the stage at which objection to the admissibility or relevancy of evidence contained in the affidavit of evidence filed under Order XVIII Rule 4 of C.P.C.is no more res integra in view of the three Judge Bench judgment of the Apex Court in the case of Ameer Trading Corpn. Ltd. (supra); wherein the Court ruled as under: "..... If any objection is taken to any statement made in the affidavit, as for example, that a statement has been made beyond the 8 Cri.WP No.1127/2010 pleadings, such an objection can always be taken before the court in writing and in any event, the attention of the witness can always be drawn while cross-examining him. The defendant would not be prejudiced in any manner whatsoever if the examination-in-chief is taken on an affidavit and in the event he desires to cross-examine the said witness he would be permitted to do so in the open Court.... (Emphasis supplied) 91. The reading of the aforesaid extracted portion would go to show that the Apex Court has clearly ruled that if any objection is to be taken to the statement made in the affidavit, then such objection should always be taken before the court in writing and the attention of the witness should always be drawn while cross- examining him. In other words, it is not necessary to decide the objections relating to admissibility or relevancy of evidence contained in the affidavit filed under Order XVIII Rule 4 of C.P.C. as they arise. The determination or decision thereon can be deferred to a later stage of the suit. However, final decision must be recorded before the Court proceeds to judgment. The irrelevant evidence brought on record can always be excluded as the question of admissibility of evidence is a question of law. Even the objection that a piece of evidence which was considered by the judgment was irrelevant can be 9 Cri.WP No.1127/2010 taken up for first time in appeal (see Miller v. Madhodas, 23 Ind App 106 (PC). In Narhari v. Madhodas Ambabai, AIR 1920 Bom 244, it was held that erroneous Ambabai omission to object to irrelevant evidence does not make the evidence relevant. Section 33 of the Evidence Act deals with relevancy and not with the mode of evidence. If the evidence is irrelevant, consent of parties cannot make it relevant. Thus, more convenient mode is to admit the objection in the first instance,reserving question of law as to its admissibility until final judgment in the case. Conclusions : ----------- 92. In view of the above analysis of the statutory provisions and our discussion, we, accordingly, articulate our conclusions as follows: Answer to Question-A : -------------------- As already noticed, (i) objection to the document sought to be produced relating to the deficiency of stamp duty must be taken when the document is tendered in evidence and such objection must be judicially determined before it is marked as exhibit; (ii) Objection relating to the proof of document of which admissibility is not in dispute must be taken and judicially determined when it is marked as exhibit; 10 Cri.WP No.1127/2010 (iii) Objection to the document which in itself is inadmissible in evidence can be admitted at any stage of the suit reserving decision on question until final judgment in the case. The Court trying the suit or proceedings as far as possible is expected to decide the admissibility or proof of document as indicated herein above. As we have already added a word caution that while exercising discretion judiciously for the advancement of the cause of justice for the reasons to be recorded, the Court can always work out its own modality depending upon the peculiar facts of each case without causing prejudice to the rights of the parties to meet the ends of justice and not to give the handle to either of the parties to protract litigation. The aim should always be to prevent miscarriage of justice and expedite trial, which is the dire need of the time. Answer to Question-B : -------------------- The objection to the admissibility or relevancy of evidence contained in the affidavit of evidence filed under Order XVIII Rule 4 of C.P.C. can be admitted at any stage reserving its resolution until final judgment in the case as held in Ameer 11 Cri.WP No.1127/2010 Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd.(supra). 12) Reading the questions formulated and the answers thereto by the Full Bench, it is more than clear, the findings recorded by learned JMFC, confirmed by the learned Additional Sessions Judge, do not call for any interference. It cannot be said to be obliterating the directions of the Full Bench. The learned Judge has yet to reconsider exhibiting the documents and cure the mistake of double exhibiting. The learned Judge will be deciding fate of documents on conclusion of evidence of complainant. 13) The writ petition lacks merit, dismissed. Rule discharged. It is clarified, any observations in this writ petition should not come in the way of the petitioner to challenge proof of the document or raise any other objection legally permissible. ( K.U.CHANDIWAL ) JUDGE bdv/