* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2118 OF 2007 Shri.Pandharinath @ Uday Bhalchandra Bhagwat ....... Petitioner V/s. Prafulla Dattatraya Phadke & Ors. ...... Respondents ======= Mr.K.K.Malpathak, Advocate for petitioner. Mr.B.A.Khanna, Advocate for respondents no.1 and 2. Mr.D.R.More, APP for State. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 20TH JANUARY, 2009. P.C. : 1. The applicant is the complainant in Criminal Case No. 247 of 2004 filed under Section 500 read with Section 34 IPC. It is alleged by him that the respondents sent two letters dated 20th May, 2003 and 10th June, 2003 to his mother which letters contain defamatory statements. 2. The present petition arises out of completely avoidable controversy raised regarding copies of the two letters. The zerox copies of the two letters are produced * 2 * and are on the file of the trial court having been numbered as Exhibits-44 and 45 respectively. However, the court has in its subsequent order clarified that the exhibit numbers given to the two zerox copies are not by way of admission of documents in evidence, but only by way of a clerical act, so as to give a serial number to each of the documents that forms part of the record of the court. The applicant challenged the said order by filing Criminal Application No. 3699 of 2006 which was disposed off by order dated 5th March, 2007. Para-3 with an observation “It would be open to the applicant to get the contents of these two letters proved either by himself or through his witnesses and if the said contents are proved, the contents can be read in evidence.” 3. After the above order instead of continuing with the oral evidence, the petitioner filed application dated 17th April 2007 (Exhibit-60) for production of certified copies of the two letters which are obtained by him from the Regular Civil Suit No. 498 of 2003. It is contended that the copies of the two letters were produced by the respondents themselves in the civil proceedings. On the same day, he filed one more application (Exhibit-61) submitting that the certified copies produced are public documents forming part of the record of Civil Court, Thane. He prayed that he be * 3 * allowed to produce the documents as secondary evidence. 4. The applications at Exhibit-60 and 61 came to be rejected with an observation that the petitioner has not deposed about the circumstances enumerated in Section 65 of the Evidence Act which can enable him to produce secondary evidence. It is also observed that the petitioner has not exhausted the remedies available to him under Section 91, 311 of Cr.P.C. and under the Evidence Act like one provided under Section 165 by praying the court for its assistance. In the absence of endeavor on the part of the petitioner in seeking assistance of the court to bring on record the primary evidence in the form of original letter which is admittedly in possession of the petitioners' mother and in the express provision of the Evidence Act under Section 64 prohibiting secondary evidence accept the provisions covered by Section 65 of the Act, the court rejecting both the applications. The Criminal Revision Application filed by the petitioner to challenge the said order before the Sessions Court also came to be dismissed. 5. A query was made to the learned counsel for the petitioners whether in his deposition, he has deposed about any of the circumstances enumerated under Section 65 of the Evidence Act to enable him to produce the secondary evidence. * 4 * The copy of the deposition is annexed to the petition being part of Exhibit-B collectively. There is not even a whisper therein of any of the circumstances enumerated in Section 365. In these circumstances, filing of the two applications at Exhibit-60 and 61 was premature. Therefore, both the courts below are correct in dismissing the applications. The trial court judge was also right in his observation, that the petitioner has not exhausted all the remedies provided under the Criminal Procedure Code and the Evidence Act in seeking production of the original documents before the court. There is no explanation offered on these observations. It is not the case of the petitioner that he has resorted to any of the remedies referred to in the impugned order. In the circumstances, the petition is dismissed. [JUDGE]