2010 ALL MR (Cri) 797
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

P.R. BORKAR, J.

Kanhaiyalal S/O. Khayaldas Kewalramani Vs. Anil S/O. Khupchand Gurubakshani

Criminal Writ Petition No.976 of 2009

4th February, 2010

Petitioner Counsel: Ms. RASHMI HARDAS, Shri. C. R. DESHPANDE
Respondent Counsel: Shri. S. P. WANI, Shri. A. G. MAGARE

(A) Evidence Act (1872), Ss.32(2), 34 - Books of accounts - Debit entry - Would be admissible in evidence both, under S.32(2), so also under S.34 of the Act - Condition that the books should be kept or maintained in ordinary course of business is a sine-qua-non before admitting the entry in evidence. (Para 4)

(B) Evidence Act (1872), Ss.32(2), 34 - Books of accounts - Before secondary evidence can be allowed when primary is in possession, permission of the Court is required in the first instance and secondly, other side gets a right to take inspection of entire account books and put questions regarding the same to ascertain whether the accounts were maintained in ordinary course of business regularly so as to be admissible under S.32(2) and also under S.34 of the Act. (Para 5)

(C) Constitution of India, Arts.226, 227 - Writ jurisdiction - Interlocutory order - Ordinarily Court would not entertain writ petition and would leave the parties to argue the matter in appeal after trial is over, if occassion arises - However, considering the wrong notions of law canvassed before Court, the Court was inclined to entertain the writ petition. (Para 9)

JUDGMENT

JUDGMENT :- By this writ petition, the petitioner-accused in S.T.C. No.164 of 2006 challenges the order dated 18.8.2009 passed by the learned Judicial Magistrate, First Class, Nandurbar rejecting application (Exh.92).

2. Briefly stated, the facts giving rise to this petition are that the present respondent is the original complainant who filed complaint against present petitioner-original accused for having committed offence punishable under Section 138 of the Negotiable Instruments Act and under Section 420 of the Indian Penal Code. The trial proceeded for offence under Section 138 of Negotiable Instruments Act. The petitioner-accused was discharged of offence under Section 420 of IPC. The respondent-complainant filed his affidavit in lieu of examination-in-chief and thereafter on 13.5.2009, petitioner-accused filed an application (Exh.92) calling upon respondent-complainant to produce books of accounts, referred to in paragraph 10 of complainant's affidavit filed in lieu of examination-in-chief, for verifying various entries and for cross-examination purpose.

3. The said application was strongly opposed by the respondent-complainant, submitting that there is no provision in the Code of Criminal Procedure, 1973, to call for the documents. It is also stated that it is the complainant's right to produce the documents as are found to be necessary and proper and if the documents are not produced by him, he cannot be compelled or directed to produce the same under criminal law. The trial court appears to have accepted this argument as in paragraph 4 of the judgment, he observed that the affidavit is already filed by the complainant along with documents which were necessary as per the complaint and the burden is on the complainant to prove his case and accused has nothing to prove and ultimately if the complainant does not wish to produce the document, he would suffer. Application (Exh.92) was therefore rejected by the learned trial judge by the impugned order and hence this writ petition.

4. On behalf of the petitioner, learned Counsel Ms. Rashmi Hardas submitted that in paragraph 10 of the affidavit in lieu of examination-in-chief the respondent-complainant has stated that on 1.6.2002 he had debited the amount of Rs.1.50 lakhs in the name of the petitioner-accused. The complainant further stated that the accounts were written by him in his hand; those were written daily. After referring to the account books he stated that the contents therein are correct. He further stated that he had brought the original account books in the court and produced office copy thereof. This affidavit is in lieu of examination-in-chief. It is not that the court has allowed the secondary evidence and rightly, therefore, the complainant said that he had brought original account books. The debit entry would be admissible in evidence both, under Section 32(2), so also under Section 34 of the Evidence Act. However, if we refer to both the sections, it is clear that there is rider inasmuch as the entries in the account books are admissible only if the accounts are regularly kept in the course of business. So, the condition that the books should be kept or maintained in ordinary course of business is a sine-qua-non before admitting the entry in evidence. What is sought to be produced on record of the court is a office copy of the relevant entry and not the entire account book in which there is entry. So, when such secondary evidence is being sought to be produced before the court and when the original was in possession of the respondent-complainant, he was bound to produce the original and in his affidavit in lieu of examination-in-chief the complainant did say that he had brought the original. In such circumstances, the accused gets a right to demonstrate that the entries in the account books are not maintained in the regular course of business.

5. Under Chapter V of the Evidence Act, before secondary evidence can be allowed when primary is in possession, permission of the court is required in the first instance and secondly, other side gets a right to take inspection of entire account books and put questions regarding the same to ascertain whether the accounts were maintained in ordinary course of business regularly so as to be admissible under Section 32(2) and also under Section 34 of the Evidence Act.

6. Another aspect that is to be noted is that the court is not devoid of any power to call upon any party to produce a document. Section 165 of the Indian Evidence Act is a provision empowering a judge which he may exercise to obtain proper proof of fact and for that purpose at any time order any witness or party production of any document. Apart from that, the present complainant was in possession of the original account book which he had brought in the court and therefore the petitioner-accused had every right to inspect the original account books and put question to the witness in his cross-examination so as to demonstrate that the entry therein would not be relevant and admissible either under Section 32(2) or 34 of the Evidence Act. To that extent, accused gets right of inspection of the account books and putting question to the witness.

7. It is another thing that if the respondent-complainant does not want to rely upon the office copy of the entry which is produced on record of the court, or does not want to rely on the entry in the account book and in that case, such evidence will not be considered. But, the complainant having brought the original account books and relied upon entry therein, it would not be proper not to allow the inspection thereof by the accused and consequential questions in the cross-examination of the witness.

8. It is argued by Advocate Shri. Wani for the respondent-complainant that production and inspection of the account book of the year 2002 and putting questions regarding them would lead to fishing enquiry and fishing questions. There may be such possibility, but the trial court is sufficiently empowered under the law to curtail unnecessary or irrelevant questions and to ensure that the cross-examination does not change into harassment of the complainant.

9. It is also argued by Advocate Shri. Wani that extra-ordinary jurisdiction of this Court under Article 226/227 of the Constitution may not be exercised in the present case, since the impugned order is interlocutory in nature. Ordinarily, this court would not have entertained this writ petition and would have left the parties to argue the matter in appeal, after the trial is over, if occasion arises. However, considering the wrong notions of law canvassed before me, it is necessary to make the things clear and, therefore, I am inclined to entertain this writ petition.

10. In the result, writ petition is allowed. The application Exh.92 before the trial court is allowed only so far as account books of the year 2002 are concerned. The complainant-respondent is to produce the said accounts for inspection by petitioner-accused and the same may be used for the in cross-examination for the purposes stated above. In case the complainant does not produce the account books, then office copy of the relevant entry, so also paragraph 10 of the affidavit of the complainant which is filed in lieu of examination-in-chief will be ignored and if the circumstances so demand, adverse inference can be drawn.

11. With observations as above, writ petition disposed of. Rule made absolute, accordingly.

Petition allowed.