2014 ALL MR (Cri) 670
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
P.D. KODE, J.
Shri Gopal Shankarrao Deshmukh Vs. Jagdamba Nagri Sahakari Patsanstha
Criminal Writ Petition No. 377 of 2013
13th December, 2013
Petitioner Counsel: Mrs. S. W. DESHPANDE
Respondent Counsel: Mr. M. A. SABLE
Criminal P.C. (1973), S.273 - Negotiable Instruments Act (1881), S.138 - De-exhibiting documents - Application for - Petitioner accused sought de-exhibition of certain documents which were tendered by complainant in his absence - Said prayer rejected without recording any reason - Held, documentary evidence can be exhibited only upon its contents being proved - Reasoning given by trial court does not show any whisper upon relevant aspect as to whether or not said documents were properly proved - Said reasoning being blissfully silent, rejection order not sustainable - Matter relegated back to trial court for fresh decision. (Paras 8, 9, 10)
JUDGMENT
2. Rule. Rule made returnable forthwith. Heard finally by consent of parties.
3. By the present petition under Article 227 of the Constitution of India, the accused in S.C.C. No.670/2009 prays for quashing and setting aside the order dated 17.04.2013 passed by the trial Court rejecting his application for de-exhibiting certain documents.
4. Considering the short controversy involved in this matter, it is wholly unnecessary to recite in details about the said case except stating that accused is facing the said prosecution on the accusation of having committed the offence under Section 138 of the Negotiable Instruments Act. It appears that during the course of the said case, the respondent herein filed an the affidavit of his evidence. The accused and his Advocate remained absent. On the said date, certain documents were tendered in the evidence. The trial Court exhibited the said documents and the deposition of the said witness was closed.
5. The petitioner assailed the said order by taking proceedings before this Court and the said order of closing the deposition of the said witness without cross-examination was quashed and set aside and the matter was relegated back to the trial Court for the purposes of the cross-examination. It appears that thereafter the petitioner preferred an application Exh.94 for de-exhibiting the said documents.
6. Mrs. S.W. Deshpande, learned counsel for the petitioner urged that at the first place the said documents being tendered on the record in absence of the petitioner, he had no opportunity to object exhibiting of said documents. It was urged that as per the provisions of Section 272 of the Code of Criminal Procedure, it was incumbent upon the trial Court to permit adducing evidence on the record in presence of the accused. It is submitted that taking such evidence on record and not considering the application for de-exhibiting documents preferred by the petitioner would cause grave prejudice to the petitioner. It is thus contended that the order passed by the trial Court be quashed and set aside.
7. Mr. Sable, learned counsel for the respondent rightly submitted that the petitioner and his Advocate having remained absent on the date in question when the said documents were tendered on the record, it is not now open for them to contend that said evidence was adduced on the record in their absence. It is submitted that this Court has graciously allowed the earlier writ petition and set aside the order of no cross-examination of concerned witness on behalf of the petitioner and relegated the matter back to the trial Court for further cross-examination. Mr. Sable contended that the trial Court correctly observed that instead of effecting such a cross-examination, the petitioner interested in prolonging the proceedings made said application and as such the same was rightly rejected. It is thus contended that there are no merits in the petition preferred and it be dismissed.
8. After giving anxious consideration to the submissions advanced by both the parties and taking into consideration the provisions of the Evidence Act, it will be necessary to say that in the course of any criminal trial documentary evidence tendered on the record is required to be exhibited only in event of relevant documents being proved in accordance with the provisions contained in the Indian Evidence Act pertaining to the proof of contents of the document. The documents which are proved in such a manner can only be marked as exhibit as per the provisions contained in the Criminal Manual issued by this Court. The glance at the application preferred by the petitioner reveals that he has objected exhibiting of the said documents. The perusal of the reasoning given by the trial Court does not show any whisper about the relevant aspect i.e. whether the said documents were properly proved and/or being required to be exhibited under any provisions of law. In the said circumstances, the application preferred by the petitioner was decided and/or rejected by the trial Court without applying mind to question raised therein.
9. Now considering the question of the matter being relegated back only for the purpose of cross-examination and the contention that by making such an application the petitioner was trying to prolong the matter, it is difficult to find any substance in the said submission. Needless to add that the provisions of the cross-examination contained in the Evidence Act reveal that the same are for the purposes of testing the evidence adduced in the examination-in-chief. In the said context for taking the decision whether the cross-examination is to be effected upon the documents which are tendered on the record during the examination-in-chief, the concerned accused will have every right to invite the decision from the Court regarding the particular document being exhibited due to being properly proved or otherwise. Needless to add that the accused being required to cross-examine the concerned witness only regarding the documents which are duly proved in accordance with the law, it was necessary for the concerned Court to decide the said relevant aspect prior to commencement of cross-examination.
10. In the premises aforesaid and particularly the reasoning given by the trial Court being blissfully silent regarding rejecting the request for de-exhibiting the documents and absolutely no reason being recorded for it, such an order cannot be legally sustained.
11. In the circumstances, the order impugned is hereby quashed and set aside. The matter is relegated back to the trial Court for deciding afresh the application Exh.94 and the request mentioned therein regarding de-exhibiting the documents by considering the relevant aspect whether the documents which are marked exhibited, were proved in accordance with the law and/or being required to be exhibited in view of the particular provision of law. The trial Court shall decide said application at the earliest after hearing both the sides about the aspect of the documents exhibited being either proved in accordance with law or being required to be exhibited due to particular provision contained in the Evidence Act.