WP.1822, 1823-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION No. 1822 OF 2010 Mr. Ashish Chandrakant Shah ...Petitioner Vs. M/s. Sheth Developers Pvt. Ltd. & Anr. ...Respondents WITH CRIMINAL WRIT PETITION No. 1823 OF 2010 Mrs. Arpana A. Shah ...Petitioner Vs. M/s. Sheth Developers Pvt. Ltd. & Anr. ...Respondents *** Mr. A. P. Mundargi, Sr. Counsel i/b P. H. Chande, for the Petitioner W.P. No. 1822/2010 AND Mr. A.H.H. Ponda i/b P. H. Chande for the petitioner in W.P. No.1823/2010. Mr. Amit Desai, Sr. Counsel i/b Mrs. Pravina Kanani, Tejal Purohit, Dongre, for Respondent No.1. Mrs. M. R. Tidake, APP for Respondent No.2. *** CORAM: V. M. KANADE J. DATE : SEPTEMBER 24, 2010 P.C. 1. The Petitioner in both the petitions are challenging the order of issuance of process dated 20th April, 2009 passed by the learned WP.1822, 1823-10 - 2 - Magistrate, 13th Court Dadar, Mumbai on the complaint filed by Respondent No.1 under section 138 of the Negotiable Instruments Act. So also, the petitioners are challenging the order dated 11th May, 2010 passed by the learned Magistrate on an application tendered by the petitioner/ accused, objecting exhibition of the documents, produced by respondent No.1. 2. Brief facts are that the Petitioner Ashish Shah issued a cheque to the Respondent No.1 for an amount of Rs.25 crores drawn on Indian Overseas Bank, Wadala Branch. The said cheque was deposited by Respondent No.1 in his bank, having branch at Cuffe Parade. The said cheque, however, was dishonoured. Notice was issued by Respondent No.1 on account of non-payment of the said amount. A complaint was filed and the verification was recorded on 20.4.2009 and the process was issued on 20.4.2009. The plea of the Petitioners was recorded on 8.10.2009. The Respondent No.1 filed their affidavit in lieu of examination in chief and compilation of documents on 19.11.2009. 3. According to the Petitioners, the documents filed by the Respondent No.1 were exhibited by the Court without calling upon the Petitioners to admit or deny the documents and/or proof of the admissibility of the said documents. Thereafter, the Petitioners filed WP.1822, 1823-10 - 3 - their application at Exhibit 28, raising their objections for exhibiting the documents and praying for excluding these documents from evidence. Reply was filed by the Respondent No.1 on 30.1.2010. The Learned Magistrate passed an order dated 11.5.2010 rejecting the application filed by the Petitioners under Exhibit 28. 4. Shri Ponda, the learned Counsel for the Petitioner in Criminal Writ Petition No. 1823 of 2010 submitted that the Petitioner Aparna Shah was not the signatory of the cheque. The amount was not due and payable by her to the complainant and the said cheque was given from the joint account of Aparna Shah and her husband Ashish Shah. It was submitted that, therefore, the case of the Petitioner does not fall within the purview of section 138 of the Negotiable Instruments Act. It was, therefore, urged that the order of issuance of process against the Petitioner Aparna Shah may be quashed and set aside. 5. On the other hand, Shri Amit Desai, the learned Senior Counsel appearing on behalf of the Respondent No.1 submitted that the plea has already been recorded and the affidavit in lieu of evidence was also filed. He submitted that the trial had commenced and, therefore, this Court should not interfere with the order of issuance of process. WP.1822, 1823-10 - 4 - 6. So far as the first submission of the learned Counsel for the Petitioners is concerned, in my view, it is not open for the Petitioner now to challenge the order of issuance of process after commencement of the trial. It is alway open for the Petitioners to raise the said issue at the time of final hearing of the criminal case. 7. It was then contended that the Trial Court had erred in exhibiting the documents, tendered by the Respondent No.1. It was first submitted that the learned Magistrate had taken the said documents on record without calling upon the Petitioners to admit or deny the said documents and without considering whether the said documents are admissible in evidence or whether they were proved or not. It is submitted that, therefore, the application was filed on 12.1.2010 raising objection to the exhibition of the documents produced by the complainant. The learned Counsel for the Petitioners has invited my attention to the impugned order passed by the learned Magistrate. He submitted that the said order was contrary to the law laid down by the Apex Court and the High Courts in the various judgments. The learned Counsel for the Petitioners has filed a compilation of judgments in support of the said submission. WP.1822, 1823-10 - 5 - 8. On the other hand, Shri Amit Desai, learned Senior Counsel appearing on behalf of the Respondent No.1 – the Original Complainant has submitted that all the documents which were tendered by the complainant have been proved as per the provisions of the Evidence Act and, therefore, the said documents had been properly exhibited. He submitted that the objection could be raised in respect of proof of contents of documents and also in regard to admissibility of the documents, by the accused which objection could be decided at a later stage. He submitted that however, perusal of the affidavit in lieu of evidence would indicate that all these documents have been duly proved, so far as formal proof of the documents is concerned and therefore, the learned Judge has dismissed the application filed by the Accused. He invited my attention to the recent judgment of the Apex Court in the case of Mandvi Co-operative Bank Ltd. vs. Nimesh B. Thakore [(2010) 2 Supreme Court Cases (Cri) 1 = (2010) 3 Supreme Court Cases 83] and judgment of this Court in the case of Geeta Marine Services Pvt. Ltd. Vs. State & Anr. [2009 All M.R. (Cri.) 672]. He also submitted that when the documents were exhibited by the Trial Court, no objection was raised by the accused and, therefore, it was not open for the accused to file such an application raising objection to the documents WP.1822, 1823-10 - 6 - which were already on record. 9. On the other hand, it was submitted by Shri Ponda, the learned Counsel for the Petitioners that the order dated 19th November, 2009 was passed by the learned Magistrate was without giving any notice to the accused nor informing them that he was exhibiting the said documents. 10. So far as second submission of the learned counsel appearing on behalf of the petitioner is concerned, in my view, it would be necessary to decide the controversy raised by the petitioners regarding the order passed by learned Magistrate below the affidavit in lieu of examination-in-chief. It has been urged by the learned counsel appearing on behalf of the petitioners that the said order was passed in their absence and the petitioners came to know at the subsequent stage when they saw the cheque which was produced by the complainant was not signed by the accused – Mrs. Arpana Shah and therefore, subsequent application was filed. 11. On the other hand, it has been submitted by the learned counsel appearing on behalf of the complainant that the accused was present in the Court when the said order was passed. In support, reliance is placed on the copy of roznama. It is also urged that the accused was WP.1822, 1823-10 - 7 - very well aware that the cheque was not signed by Mrs. Aparna Shah. In my view, it may not be necessary to go into this controversy. The perusal of that order clearly indicates that the counsel appearing on behalf of the accused was not informed when the said order was passed. The said order dated 19-11-2009 reads as under- “The witness Shri Sharad Nathuram Doshi is in witness box. He on oath affirms the contents of affidavit. It be accepted and exhibited. Documents are proved in their respective sense. Hence, these be exhibited.” 12. Perusal of the said order clearly indicates that the said order was not dictated in the Court but was written in hand by the learned Magistrate. It is therefore, obvious that no notice was given to the accused before exhibiting the documents, which were annexed to the affidavit in lieu of evidence. This order was challenged by the accused by filing an application at Exh. 28, which was filed on 12th January, 2010. A reply thereto was filed on behalf of the complainant and thereafter the learned Magistrate was pleased to pass a detailed order dated 11th May, 2010. A contention is also raised by the learned counsel appearing on behalf of the complainant that the order dated 19th November 2009 has not been separately challenged. In my view, the said WP.1822, 1823-10 - 8 - objection cannot be accepted since the petitioners have challenged the order passed below application Exh. 28 and the order passed below the said application is under challenge in this Court. Therefore, the question which falls to my consideration is – whether the order dated 19th November 2009 could have been passed without giving notice to the accused? And secondly, - whether the impugned order passed below application Exh. 28 is sustainable in law? 13. Before considering the contentions raised on behalf of the petitioners and the complainant, it would be relevant to lay down the legal position in respect of exhibition of the documents. It is a well settled position in law that before any document is exhibited by the Court, the party who produces the said document has to prove the said documents in accordance with the provisions, laid down under the Evidence Act. Thereafter, the Court has to consider whether contents of the document is proved or not; and thirdly, whether the said document is admissible or relevant for the purpose of taking it on record. 14. The Apex Court in a recent judgment in the case of – Mandvi Cooperative Bank Ltd. Vs. Nimesh B. Thakore [(2010) 2 SCC (Cri) 1] has examined this position at length. Similarly, the learned Single Judge of this Court in the case of - Geeta Marine Services Pvt. WP.1822, 1823-10 - 9 - Ltd. Vs. State & Anr. [2009 All M.R. (Cri.) 672] has also considered this aspect. It is therefore, a well settled position in law that after the documents are filed along with the affidavit in lieu of evidence, first it is duty of the Court to ask the accused whether they would like to admit the said documents under S. 294 Cr.P.C. and if the documents are not admitted then the Court has to examine whether the documents can be exhibited, after examining the contents of the affidavit-in-lieu of evidence and to see whether the procedure of proving the documents has been followed by the witness. If the Court comes to the conclusion that the said procedure has been followed for proving the document, then the Court can exhibit the said document. However, if the document is not proved, then in that case it has to be marked for the purpose of identification so that after producing the said document, witness can prove it by adopting the proper course. In the present case, in my view, so far as the order dated 19-11-2009 is concerned, the said procedure obviously has not been followed by the learned Magistrate, and therefore, on that ground alone, the said order will have to be set aside to the extent the learned Magistrate has exhibited the documents, produced along with affidavit in lieu of evidence. 15. So far as the impugned order passed by the learned WP.1822, 1823-10 - 10 - Magistrate, dated 11th May, 2010 on application Exh. 28 is concerned, in my view, the said impugned order is not happily worded. The learned Magistrate appears to have proceeded to consider the various provisions under the Evidence Act and has given his opinion on the said provisions. The learned Magistrate, however, does not consider the ratio of the decisions, on which reliance is placed by the learned counsel for the complainant or the accused. The learned Magistrate, in my view, ought to have taken into consideration the objection raised by the counsel for the accused in respect of each document and after considering the affidavit-in-lieu of examination and the submissions of the counsel for the complainant, should have given a decision on a question – whether said objection is sustained or overruled., and accordingly, should have either exhibited the document or should have marked it for the purpose of identification, or should have held that the said document is not exhibited on the ground that it is not admissible in law. Instead of doing that, the learned Magistrate has merely stated that the objection regarding the admissibility and relevance would be considered at the subsequent stage. In my view, such a course of action would not be open to the learned Magistrate. He should have followed the ratio of the judgments in the case of – (i) Geeta Marine Services Pvt. Ltd (supra) WP.1822, 1823-10 - 11 - and (ii) Mandavi Cooperative Housing Society Ltd. (supra) and should have first decided the objection regarding the exhibition of the documents. It is quite well settled that so far as the proof of contents of the documents is concerned, the burden is on the person who produces the document to prove its contents, according to the provisions of the Evidence Act. 16. Under these circumstances, therefore, the impugned order dated 11th May, 2010 passed below application Exh. 28 is quashed and set aside. The learned Magistrate is directed to decide the objections raised by the counsel for the accused after hearing both the sides. It is however, clarified that so far as proof of contents of documents is concerned, the same may be decided at the subsequent stage. If the learned Magistrate come to the conclusion that any of the documents are not proved, he may mark the said documents so that it can subsequently be proved by the complainant. However, examination of the complainant need not be deferred for that purpose. 17. The learned Magistrate shall therefore, hear the parties on Application (Exh. 28) and on merits and in accordance with law decide the same, as directed hereinabove. 18. Both the parties may appear before the learned Magistrate, WP.1822, 1823-10 - 12 - as the matter was already placed on board on 27th September, 2010. The learned Magistrate shall decide the application, as expeditiously as possible. Hearing of the trial is expedited. . Both the writ petitions are disposed of in above terms. [ V. M. KANADE J.]