IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27th DAY OF’ AUGUST, 2009.-.___
BEFORE O O
THE HON’BLE MR.J{}STICE SGBHASH.E:;~ADi:’V’. *
CRIMINAL PETITION N-‘D~,»4.._175/.?’Cflé§:V’~’I,
BETWEEN: V O O O O V
1 M /S HIMATSINGKA SEIDE LTD, . ._ –
No.2/1, MLDFORD GARDENS,’ M. G. ROAD,»
BANGALORE, REPTD. BY ITS MANAGING ‘ ~
DIRECTOR, MR.DINE3SH H1,MA’1*S__R1G1x:A
C /O M /S. HIMATSINGFA SEIDE. LIMITED
No.10/24, KUMARA KRUPAR(7)AD,_ A 3 , ” –.
HIGH GROUNDS, BANQALORE-560″Q0V1~;._’jv ..
2 SR1 ADITYA HRy:ATS£_NO-RA’
EXECUT-IVE DQIRECTCR . ,
C /O. M/S._.H1MATSING’jR.A’:’3El33E~_LRv11’I’ED
NO. 10 /24,”‘KfJ§\/EARA’*KRE}PA_ ROAD, HIGH
GRO’URDS, BAN:GAL’ORE–560″‘G0’1.
3 SRE. MOHAN RAO Ex–“RRE’s1DENT ,
HIMA.TSINGKA FILATI ..gDm’S1ON OF
HLMA’TS1RGKA_ SEIDE LTD)
Cgo M /S. VHIMATSINGKA SEIDE LIMITED,
, ._§NO.1O/24, KEJMARA KRUPA ROAD,
– HIGH GROUND’S’;’BANGALORE-56O 001.
V’ ” -A SRLR. CHfN–3IARA.J
PRESIDENT A FINANCE COMP.
. “~wSECRE:*ARY C/O. M/S
H1MATSj:.NGKA SEIDE LIMITED, NO. 10 /24
‘KUMARA KRUPA ROAD, HIGH GROUNDS
BANGALORE-560 001.
V “SR1 ALOK AGARWAL, EXECUTIVE
O ‘ “C/O M/S HIMATSINGKA SEIDE LIMITED
NO.10/24, KUMARA KRUPA ROAD,
HIGH GROUNDS, BANGALORE–56O O01.
PETITIONERS
(By Sri RAVI B.NAIK, SENIOR COUNSEL
FOR M/S. KHAITAN 85 CO.)
1 SRI SI-IAMBAPPA S /O BASAPPA
AGED ABOUT 46 YEARS R/O. NO.
1625, “lI)” BLOCK, 2ND MAIN, Acs LAYOUT
KINDALAHALLI POST, BANGALORE. ‘ » ” ,
: REsRO.ND-ENT
cRL.R FILED U/S.482 CR.P.C BY THE ADvcr.cATE,,_EOR,.THE»
PETITIONERS PRAYING THAT THIS H,ON’BLE””cOUfRT”=.M~AY BEA
PLEASED TO SET ASIDE THE ORDER DATED 21.:zO*0.7’RAS_LSEVDT l:3Y ‘
THE X–ADDL.C.C.M., BANGALORE, IN C’.«C.i\I.O:2234é./.200 1, A1§iD_THE
ORDER DATED 3.1.2009 PASSED BY THE. CRL.RI>;.’2;'<3e.5_1/H2.:i)07 IV}
ADDLCITY CIVIL 8!. SESSIO1\§Sl"..JUDGE,l" ~M'A'i'~O HALL UNIT,
BANGALORE. I .. ..
TI-HS PETITION CC)IviIl’JG ‘ON;_EOR._’ORDERS THIS DAY, THE
COURT MADE THE EOLLOWING; ‘ ‘
,,lI«sIXQE_1;ElE
Petlitipnersare NOs.1 to 5 in C.C.NO.22346/2001
pendirjgon file Of lfiddl. C.M.M., Bangalore City.
4
1′!
._l3€espuOndent has filed a private complaint under Section
§{)_O”l.Of an Offence punishable under Sections 323,
V _ 341,”‘342v–,’:35v5″, 387, 417, 419, 420, A26, 440, 506E r/W Sections
. .24, .25, 26 and 34 Of the IPC.
The learned Magistrate after recording sworn Statement
and considering the material produced by the complainant,
Ordered for issue Of summons and now posted for evidence.
%k£’-
M”?
Section 91 of Cr.P.C. seeking summoning the alleged M.O.U.
from the accused No. 1, the said application was rejected–with an
observation that; when the accused do not
document, question of directing the accused persons
the said documents does not arise and also on that,’ . 6
the accused cannot be directed to of
Understanding to prove thecase ofithe ico1i:1piainai.nt.’ This
observation is also reiterated .revi_sional’ ‘C,ourt.i§in its order
at paragraph 8 of the p _ it 6
‘7. The lear11.ed siubimitted that, such
observation illeiiiuriher submitted that,
when is not proved by the
complair1gnt,i_ of Xerox copy as secondary
evidence se it ‘
reliedioi the provisions of Sections 63 and 65 of the
E\vvide’nce-inlet,”andrsubmitted that, Section 65 of the Evidence Act
andpisubmit’ted..i:’that, secondary evidence may be given of the
6V,existenceiigcondition or contents of a document subject to, when
flthie original is shown or appears to be in the possession or power
‘ ofgthe person against whom the document is sought to be
proved, or of any person out of reach of, or not subject to, the
process of the court, or of any person legally bound to produce it
and when, after the notice mentioned in Section 66, such person
that rule only means that, so long as the higher or
superior evidence is within your possession or_..__
may be reached by our, you shall give no infer_io.r_i
proof in reiation to it. Section 55 deals
proof of the contents of the documents tendered. ii” i
evidence. In order to enable a party
secondary evidence it is necessary it
to prove existence and execution 6,? the yoiiiglinal
document. Under Section “~docurnents–ar”e
provided by primary e_v_idence_,_ Sectioin
however permits se_co.ndciry be given
of the existence, i iic¢nd:=vzt5n’ of
documents under the” mentioned.
The conditioris in..theisaid”‘Section must
be :”sejcon’dary’*.§evidence can be
adinittedf;Sectiridai”yy evidence of the contents of a
document V “paninot i i _ admitted without non-
production of_theA’oriyinaE”ibeing first accounted for
in_such’a manr;-.eri’asi bring it within one or other
the cases provided for in the Section.
submitted that, when primary evidence
iiicould not h_e’giiren, the secondary evidence is given, and that
–. he done only on fulfiilment of the requirement of the
iproxiisionis of Section 65 of the Evidence Act.
V 13. He also relied on another judgment reported in AIR
2004 SC 4082 in the matter of SMTDAYAMATHI BAI VS.
K.M.SHAFFI and submit that, the objection has to be raised
when the document is taken on record and no objection couid be
raised at a iater stage. It is in this context, he submitted that,
when the compiainant in the witness box has submitted
wants to produce secondary evidence and mark it, .
has been raised by the accused. ._
14. Law requires that, best avai.ia’bie evidence”
produced. If the primary evidence is:§vs_11a51e; given
first. in the absence of th’e..y_”prim’ary ‘secondary
evidence may be given. It is .i_’avv’_that documents
have to be proved pg documents are
admissible, soinieiiijreaiuired according to the law.
However, * itseifvicould not be produced,
secondary evidence. .
1,3.’ Secondaiyyfleviidence is defined under Section 63 of the
vvhich reads as under:
_ ‘3._eCtioii”6_3:ri.Secondary evidence means and includes:
(L) cej’rty’-§e’d copies given under the provision
‘hereinafter contained;
it ‘{2}; copies made from the original by mechanical
processes which in themselves ensure the accuracy
of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
Court or of any person legally bound to produce it,
and when after the notice mentioned in Section 66,
such person does not produce it;
(b) When the existence, condition or
original have been proved to be admittedin it
by the person against whom; it ‘is.pri)ved his
representative in interest;
(c) When the original has’-been destroyed”.:or”~–;lost, ‘or
when the party offe1iflQ.:Vil§:»i2_idence’of. cbntents
cannot, for any A..4_other 5_:reason._g_ no’t,arising from his
own default or neglect;’produceifitl reasonable
time;
(d) “of a nature as not to be
.»easi.ly’movable,’ l
(e) lWhe.n the gii public document within the
meaning 4;
;_H:7l’Lt?_n the’long–iri’al is a document of which a certified
,cepy_is.pennitt$e§d by this Act, or by any other law in
A “force (India), to be given in evidence;
big) the originals consist of numerous accounts or
“other documents which cannot conveniently be
examined in Court and the fact to be- proved is the
general result of the whole collection.
19. Contents of document could be given by secondary
evidence under Section 65 (a){c) and (d), inasmuch as when the
document is in possession or power which cannot be produced
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through process of the Court or person is not legally bound to
produce, or when original is destroyed or original cannot be
moved from the place. However, if condition or contents-._ia–:e
admitted, secondary evidence could be given.
20. in case the document is public doc.u’meri’t- .or–certified«
copy as permitted by law or by the evidence of person
examined and who is skilled in theiiercamination of document.
21. To prove the the party must
adduce evidence Evidence Act.
However, in this The learned
Magistrate_h_as the Xerox copy of the
M.O.U. subject <of'e.;§iste11ce of the original.
22. Unidisputedly,itheapplication filed by the complainant
regai’=:ds summoningvof the document from the accused has
i7′.:)eeIii’1’eiee.tedarid.__thereafter the complainant has entered into
thexvitixliessibioxriburing the course of evidence, the complainant
has statedltphati, M.O.U. be permitted to be marked as secondaiy
“§’\!idl’:§’I1’€3.'(i’. that stage, the Court has passed the following
v .i.ord:er.
“Objections raised by the accused for marking of
xerox copy of M.O.U. is hereby rejected. The
complainant is permitted to lead secondary
evidence by producing xerox copy of M.O.U.
subject to proof of existence of original M. O. U. ”
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23. From the order dated 23.5.2009 what appears is that,
neither the complainant has produced the xerox copy the
M.O.U. nor the original has been produced. At this stage;
has been passed. The learned Judge has ‘
mentioned that the xerox copy to tog ii
existence of the original M.O.U. in this
xerox copy is produced and even__v:i:etorei’the coniplainvant–‘ilhas 2 i’
made effort to prove the__existencejg’~of*~original.:i§d.QiEU., this
Criminal Petition has been in a judgment
relied by the learned. genie;-is-ce1ifnsie–1_At’o_rlithe held that,
the existence of. ieiiistence in terms of
Section ot be disputed that the
existence there, otherwise there cannot
be any secondary eividencei~.._No secondary evidence is exists
withoutgtheggorigirialg. under the circumstances when it is
producemthe original for the reason stated under
the Evidence Act. In this case, the learned
A Magistrate: has fonly permitted the complainant to produce the
-. .jf”f.s;ieroA><gcopy, subject to existence of the original. if there is no
"'origii'1.al_,i.–' if the original itself is not in existence, it is for the
i corvnplainant to produce the original to show from the evidence
the condition and contents of the document by establishing one
of the circumstances under Section 65 of the Act.
%,,_;1
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24. in this case, so far, neither the xerox coy is produced
nor any document is marked. From the order of the learned
Magistrate, it is clear that, the burden is on the compi’aina’nti’to
produce evidence to show the existence of the V’
the existence is shown, the further question. of n1ar14<in;g_"arise:s. it
is needless to mention that, every secoinda–r_fy"evidence has'
proved in accordance with the provisions of VSectiovns"'t63~and 65 " V
of the Evidence Act.
Since that stage hasiniot. document is
produced, in my opinion, thi’s”pet[itio11_is_pre–rnatured.
Sd/..
JUDGE