{"id":162499,"date":"2008-09-22T00:00:00","date_gmt":"2008-09-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/geeta-marine-services-pvt-ltd-vs-the-state-another-on-22-september-2008-2"},"modified":"2015-09-09T23:51:57","modified_gmt":"2015-09-09T18:21:57","slug":"geeta-marine-services-pvt-ltd-vs-the-state-another-on-22-september-2008-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/geeta-marine-services-pvt-ltd-vs-the-state-another-on-22-september-2008-2","title":{"rendered":"Geeta Marine Services Pvt Ltd vs The State & Another on 22 September, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Geeta Marine Services Pvt Ltd vs The State & Another on 22 September, 2008<\/div>\n
Bench: A.S. Oka<\/div>\n
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n                 CRIMINAL APPELLATE JURISDICTION\n\n\n\n\n                                                                 \n             CRIMINAL APPLICATION NO.2633 OF 2008\n\n\n\n\n                                         \n    Geeta Marine Services Pvt Ltd\n    & another                                  .. Applicants\n\n           Vs.\n\n\n\n\n                                        \n    The State & another                        .. Respondents\n\n    Mr.Vijay Pradhan, Sr Counsel with Mr.R.Satyanarayanan\n    i\/by Ravindra Sharma for the applicants.\n    Mr.D.R. More, A.P.P for the State.\n\n\n\n\n                                \n    Mr.Joseph Verghese for the respondent no.2.\n\n                             WITH\n                      \n             CRIMINAL WRIT PETITION NO.331 OF 2008\n\n\n    Shri Ashutosh Mukhyopadyay                 .. Petitioner\n                     \n           Vs.\n\n    The State of Maharashtra & another         .. Respondents\n      \n\n\n    Mr.S.V.Marwadi i\/by Mr.S.P.Narkar for the petitioner.\n    Mr.D.R.More, A.P.P for the State.\n   \n\n\n\n    Mr.R.Satyanarayanan with Mr.J.S.Darod for respondent\n    no.2.\n\n                             WITH\n             CRIMINAL WRIT PETITION NO.1170 OF 2008\n\n\n\n\n\n                             WITH\n             CRIMINAL WRIT PETITION NO.1171 OF 2008\n                             WITH\n             CRIMINAL WRIT PETITION NO.1172 OF 2008\n\n\n\n\n\n    Shri S.N.Khetan                         .. Petitioner\n                                 (In all three petitions)\n\n           Vs.\n\n    The State of Maharashtra & another      .. Respondents\n                                  (In all three petitions)\n\n\n\n\n                                         ::: Downloaded on - 09\/06\/2013 13:53:13 :::\n                                        : 2 :\n\n\n\n\n    Mr.S.V.Marwadi i\/by Mr.S.P.Narkar for the petitioner in\n\n\n\n\n                                                                          \n    all three petitions.\n    Mr.J.P.Yagnik,   A.P.P for the     State in all three\n    petitions.\n\n\n\n\n                                                  \n    Mr.   Yashpal Thakur a\/w Mr. Sameer Mohite, Mr.Vivek\n    Patil and Ms Puja Zade i\/by M\/s.Paras Kuhad & Associates\n    for respondent no.2 in all three petitions.\n\n\n\n\n                                                 \n                                   WITH\n                   CRIMINAL WRIT PETITION NO.738 OF 2008\n\n    Mr.Ketan Anant Rajpopat                             .. Petitioner\n\n\n\n\n                                        \n              Vs.\n\n    The State of Maharashtra & another                  .. Respondents\n                           \n    Mr.Uday Warunjikar for the petitioner.\n    Mrs.P.P.Shinde, A.P.P for the State.\n                          \n    Mr.Kafil Khan & Ms Archana Thakkar for respondent no.2.\n\n\n                                CORAM : ABHAY S.OKA, J.\n<\/pre>\n
                                DATE   : 19th & 22nd September 2008.\n<\/p>\n
    ORAL JUDGMENT:\n<\/p>\n
    .         I     have   heard      the submissions of        the     learned<\/p>\n
    Counsel       appearing     for    the parties.    With      a     view      to<\/p>\n
    appreciate       the   submissions     of    the    learned         counsel<\/p>\n
    appearing for the parties, it will be necessary to refer<\/p>\n
    to the facts of the case in brief.\n<\/p>\n
    2.        Criminal        Writ Petition No.331 of 2008 has                been<\/p>\n
    filed for challenging the order dated 27th December 2007<\/p>\n
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\n                                                : 3 :<\/span><\/p>\n
    passed       by the learned Metropolitan Magistrate by                                    which<\/p>\n
    an     application            made       by the petitioner                under       section<\/p>\n
    145(2)           of     the    Negotiable             Instruments              Act,           1881<\/p>\n
    (hereinafter            referred          to     as the said            Act)       has        been<\/p>\n
    rejected.             The     petitioner          has been           arraigned           as     an<\/p>\n
    accused in a complaint filed by the 2nd respondent under<\/p>\n
    section          138 of the said Act.                The application was                    made<\/p>\n
    by the petitioner contending that in view of sub section<\/p>\n
    2     of    section 145 of the said Act, the                             2nd      respondent<\/p>\n
    will        have        to    appear        before         the       Court         and         his<\/p>\n
    examination-in-chief
\n                                  ig     will        have      to      be     recorded          with<\/p>\n
    regard       to the facts stated in the affidavit in lieu                                      of<\/p>\n
    examination-in-chief.\n<\/p>\n
    3.          Criminal Writ Petition Nos.1170 of 2008, 1171 of<\/p>\n
    2008       and        1172    of     2008 have been filed                    by    the        same<\/p>\n
    petitioner            who     has        been arraigned as              an     accused          in<\/p>\n
    complaints             filed        by     the       2nd    respondent             in      these<\/p>\n
    petitions         under        section         138      of the          said      Act.         The<\/p>\n
    challenge         in these petitions is to the order dated 30th<\/p>\n
    May     2008 by which the similar applications made by                                        the<\/p>\n
    petitioner            under     sub section 2 of section 145                          of      the<\/p>\n
    said Act have been rejected.\n<\/p>\n
    4.          In        Criminal       Writ Petition No.738 of 2008,                            the<\/p>\n
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\n                                                 : 4 :<\/span><\/p>\n
    2nd     respondent is the complainant in a complaint                                     under<\/p>\n
    section        138           of the Negotiable Instruments                    Act,       1881.\n<\/p>\n
    Here     again, the challenge by the petitioner accused                                       is<\/p>\n
    to     the        order        passed       on        application        made       by      the<\/p>\n
    petitioner under section 145(2) of the said Act.\n<\/p>\n
    5.           In         so     far as Criminal Application                    No.2633         of<\/p>\n
    2008         is     concerned,             the        controversy        is      some      what<\/p>\n
    different.               This       application under section 482 of                        the<\/p>\n
    Code     of Criminal Procedure, 1973 has been filed by                                      the<\/p>\n
    accused in a complaint filed by the 2nd respondent under<\/p>\n
    section        138           read     with section 141 of               the      said      act.\n<\/p>\n
    Here,        the        challenge is to the order dated 02nd                           August<\/p>\n
    2008     passed              by the learned Magistrate.                  In     this       case<\/p>\n
    evidence           was        adduced by the complainant by                     filing        an<\/p>\n
    affidavit               in         lieu    of     examination-in-chief.                     The<\/p>\n
    complainant              stepped          into witness box for               recording          a<\/p>\n
    formal        examination in chief in which he stated that the<\/p>\n
    contents           of        the     affidavit were as            per      his      personal<\/p>\n
    knowledge.               He        referred      to      the    list       of     documents<\/p>\n
    produced           separately.            In his examination in chief,                      the<\/p>\n
    learned        Judge noted that so far as proof of contents of<\/p>\n
    document           is concerned that will be decided on                             totality<\/p>\n
    of     evidence.              The question of evidentiary value of                          the<\/p>\n
    said     documents              was       left open and         the      learned         Judge<\/p>\n
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\n                                             : 5 :<\/span><\/p>\n
    proceeded        to     exhibit         the documents       produced          by     the<\/p>\n
    complainant.           An application was made on behalf of                         the<\/p>\n
    applicants          accused contending that it was necessary                            to<\/p>\n
    decide     the        issue       of relevancy       and     admissibility              of<\/p>\n
    documents        tendered by the 2nd respondent complainant at<\/p>\n
    Exhibit       P-2      to     P-17      and Exhibit P-19          and     the       said<\/p>\n
    documents        be declared as inadmissible.                    By order         dated<\/p>\n
    02nd     August        2008, the leaned Magistrate                 rejected         the<\/p>\n
    said     application          by       recording     that        provisions             of<\/p>\n
    paragraph        33 of Chapter VI of the Criminal Manual                           have<\/p>\n
    been      complied
\n                             ig  with.       He   observed           that   when            the<\/p>\n
    complainant         entered        the     witness box, each            and        every<\/p>\n
    document       came      to       be    exhibited.         The     learned         Judge<\/p>\n
    observed that paragraph 33 of Chapter VI of the Criminal<\/p>\n
    Manual     never contemplates a decision on the evidentiary<\/p>\n
    value of the documents at the time of filing them in the<\/p>\n
    Court.\n<\/p>\n
    6.         The first submission made by the learned counsel<\/p>\n
    appearing        for        the    applicants\/petitioners was                on     the<\/p>\n
    interpretation          of        section 145(2) of the said Act.                       It<\/p>\n
    must     be    stated         here      that when the view           taken         by    a<\/p>\n
    Division       Bench        of this Court on the interpretation                         of<\/p>\n
    section 145(2) in the case of KSL and Industries Ltd Vs.<\/p>\n
    Mannalal       Khandelwal          and     another    (2005        Criminal         Law<\/p>\n
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\n                                                  : 6 :<\/span><\/p>\n
    Journal        1201)       as      well as the view             taken        by    several<\/p>\n
    learned        single Judges of this Court was brought to                                 the<\/p>\n
    notice         of        the    learned            counsel    appearing           for     the<\/p>\n
    petitioners\/applicants, it was pointed out that the said<\/p>\n
    view     is     subject matter of challenge in                         Special          Leave<\/p>\n
    Petitions           before the Apex Court which are being                            heard.\n<\/p>\n
    Since         this        Court        has     already       taken       a    view,         no<\/p>\n
    submissions are made on the said aspect of the case with<\/p>\n
    a prayer that the said contention may be kept open.\n<\/p>\n
    7.           The      main\n                                ig  submissions           have been          made      on     the\n\n    procedure           to     be     followed         when the       evidence         of     the\n                              \n    complainant           is       recorded        by permitting           filing        of     an\n\n<\/pre>\n
    affidavit in lieu of examination in chief in a complaint<\/p>\n
    under        section       138         of    the    said     Act.        Shri      Marwadi<\/p>\n
    appearing           for the petitioners in some of the                          petitions<\/p>\n
    submitted that immediately after examination-in-chief in<\/p>\n
    the form of an affidavit of the complainant is recorded,<\/p>\n
    the     learned          Magistrate           is     under      an     obligation           to<\/p>\n
    consider            whether       the        documents        produced            by      the<\/p>\n
    complainant           are admissible in evidence and whether                              the<\/p>\n
    said documents have been duly proved.                             He submitted that<\/p>\n
    unless        the        issue regarding proof and admissibility                            of<\/p>\n
    documents           is immediately decided by the Magistrates, it<\/p>\n
    is     not     possible           to         effectively      cross-examine               the<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                               : 7 :<\/span><\/p>\n
    complainant          as       the cross-examiner does not know as                          to<\/p>\n
    which     documents are held as proved.                        He submitted there<\/p>\n
    is     well established practice followed in all Courts                                    in<\/p>\n
    the State that if cross-examination of a witness is made<\/p>\n
    by     referring          a     document       to     the    witness,          the       said<\/p>\n
    document     is        admitted in evidence and is marked                           as     an<\/p>\n
    exhibit.         He submitted that in view of this practice, a<\/p>\n
    seasoned     advocate            never cross-examines a witness on                           a<\/p>\n
    document     which            is not proved by the rival party.                          His<\/p>\n
    contention is that if issue of proof of the documents is<\/p>\n
    postponed        till
\n                               ig final       arguments,        the     advocate           cross<\/p>\n
    examining        a     witness        is put to         a    disadvantage.               His<\/p>\n
    submission        is          that    if the decision on the                 aspect        of<\/p>\n
    admissibility             and    proof of documents produced                      by     the<\/p>\n
    complainant          is       postponed        till    the        final      arguments,<\/p>\n
    prejudice        will be caused to the accused as advocate for<\/p>\n
    accused      is           not        in    a    position           to      effectively<\/p>\n
    cross-examine             the complainant or his witnesses.                         He has<\/p>\n
    referred     to several decisions, a reference to which                                    is<\/p>\n
    made in this judgment.                    Same are the submissions made by<\/p>\n
    Shri     J.P.Cama, the learned senior counsel appearing                                    in<\/p>\n
    support of Criminal Writ Petition No.738 of 2008.\n<\/p>\n
    8.         The       learned senior counsel appearing in support<\/p>\n
    of     Criminal Application No.2633 of 2008 referred to the<\/p>\n
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\n                                                 : 8 :<\/span><\/p>\n
    decision           of        the     Apex   Court        in     the     case        of    Bipin<\/p>\n
    Shantilal              Panchal       Vs.     State of Gujarat                 and     another<\/p>\n
    (2001 Criminal Law Journal 1254) and submitted that what<\/p>\n
    is     laid        down        by     the Apex Court            therein        is     only       a<\/p>\n
    guideline.               He        submitted that the directions, if                        any,<\/p>\n
    issued        by        the Apex Court are confined to an                           objection<\/p>\n
    regarding              admissibility of any material or any item                               of<\/p>\n
    oral        evidence           and the directions do not relate to                           the<\/p>\n
    procedure               to     be     followed      as        regards       marking          the<\/p>\n
    documents              as exhibits.         He submitted that even assuming<\/p>\n
    that<\/p>\n
                the Apex Court has laid down the procedure by                                    the<\/p>\n
    said        decision,          the Courts in Maharashtra are bound                             by<\/p>\n
    the     rules           contained in Criminal Manual issued by                              this<\/p>\n
    Court        and therefore the Courts are bound by                               paragraphs<\/p>\n
    33     to     35        of Chapter VI of the                  Criminal        Manual.          He<\/p>\n
    invited           my     attention to another decision of                          the      Apex<\/p>\n
    Court        in        the     case of R.V.E.Venkatachala                     Gounder        Vs.<\/p>\n
    Arulmigu           Viswesaraswami and V.P.Temple and another (AIR<\/p>\n
    2003        Supreme           Court     4548).      He        submitted          that        the<\/p>\n
    observations              in       the judgment of the Apex Court in                         the<\/p>\n
    case        of Bipin Panchal (supra) are only in the nature of<\/p>\n
    guidelines              and the law as regards the admissibility and<\/p>\n
    proof        of documents has been laid down by the Apex Court<\/p>\n
    in the said decision in the case of R.V.E.                                    Venkatachala<\/p>\n
    (supra).               He also placed reliance on a decision of                              the<\/p>\n
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\n                                           : 9 :<\/span><\/p>\n
    learned       single     Judge        of     this Court in        the      case      of<\/p>\n
    M\/s.Sanjay          Cotton Company Vs.          M\/s Omprakash Shiopraksh<\/p>\n
    and another (AIR 1973 Bombay 40).\n<\/p>\n
    9.         The        learned         counsel      appearing             for       the<\/p>\n
    respondents         in Criminal Writ Petition Nos.1170 of 2008,<\/p>\n
    1171    of 2008 and 1172 of 2008 submitted that in so                              far<\/p>\n
    as     interpretation of section 145(2) of the said Act                              is<\/p>\n
    concerned, the law laid down by this Court is very clear<\/p>\n
    and    the     said     interpretation          put    by      this      Court       is<\/p>\n
    binding.\n<\/p>\n
                     He invited my attention to a decision of                          the<\/p>\n
    learned       single     Judge        of     this Court in        the      case      of<\/p>\n
    Peacock       Industries        Ltd and another          Vs.        M\/s.Budhrani<\/p>\n
    Finance       Ltd     and another (2006 ALL MR (Cri.) 2233)                        and<\/p>\n
    submitted        that this Court has held that after affidavit<\/p>\n
    in     lieu of examination-in-chief is filed, procedure                              as<\/p>\n
    laid down in the case of Bipin Panchal (supra) has to be<\/p>\n
    followed.           Reliance     is        also placed on a         decision         of<\/p>\n
    another       learned single Judge of this Court in the                           case<\/p>\n
    of Peacock Industries Ltd and another Vs.                         Wipro Finance<\/p>\n
    Ltd    and another in which this Court reiterated that the<\/p>\n
    learned       Magistrate has to follow procedure laid down in<\/p>\n
    the    case      of Bipin Panchal (supra) so that there is                           no<\/p>\n
    prejudice to any party.               He invited my attention to what<\/p>\n
    is     held by the Apex Court in the case of Bipin                          Panchal<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                        : 10 :<\/span><\/p>\n
    (supra)        and submitted that the guidelines therein                     will<\/p>\n
    have     to be followed by all Courts.            Similar submissions<\/p>\n
    have been made by the counsel appearing for the original<\/p>\n
    complainants in the other petitions.                It was pointed out<\/p>\n
    that     atleast two single judges of this Court have                        held<\/p>\n
    that     the        courts dealing with complaints under                section<\/p>\n
    138 of the Negotiable Instruments Act, 1881 will have to<\/p>\n
    follow       the procedure laid down by the Apex Court in the<\/p>\n
    case of Bipin Panchal (supra).\n<\/p>\n
    10.<\/p>\n
                 I have carefully considered the submissions.                       In<\/p>\n
    so     far     as     this Court is concerned, the issue                of    the<\/p>\n
    interpretation          of   sub section 2 of section 145 of                  the<\/p>\n
    said     Act of 1881 is well settled.            Paragraph 38 of              the<\/p>\n
    decision          of Division Bench of this Court in the case of<\/p>\n
    KSL Industries Ltd (supra) reads thus:\n<\/p>\n
                 “38.       Sub-section    (1)   of section           145      gives<\/p>\n
                 complete     freedom     to the complainant either                 to<\/p>\n
                 give     his evidence by way of affidavit or by way<\/p>\n
                 of oral evidence.        If this is made on affidavit,<\/p>\n
                 the     same has to be accepted and such               affidavit<\/p>\n
                 is     required to be kept on record by the                 Court.\n<\/p><\/blockquote>\n
                 The second part of sub-section (1) provides that<\/p>\n
                 the     complainant    may   give      his      evidence           on<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                       : 11 :<\/span><\/p>\n
            affidavit          and    may,     subject        to       all        just<\/p>\n
            exceptions,         be read in evidence in any enquiry,<\/p>\n
            trial       or     other proceeding.         Thus, it is            clear<\/p>\n
            that    once        the evidence of the           complainant            is<\/p>\n
            given       on affidavit, it may be read in                    evidence<\/p>\n
            in     any enquiry, trial or other proceeding,                         and<\/p>\n
            it may be subject to all just exceptions.”\n<\/p><\/blockquote>\n
    11.     There is a further decision of this Court in the<\/p>\n
    case of Indo International Ltd and another Vs.                         State of<\/p>\n
    Maharashtra<\/p>\n
                    and another (2005 (2) Bombay Cases Reporter<\/p>\n
    (Cri.) 729).     In paragraph 11 of the said decision, this<\/p>\n
    Court   has summarised the law laid down by the                        Division<\/p>\n
    Bench   in    the    case     of KSL      Industries        (supra).           The<\/p>\n
    relevant part of paragraph 11 reads thus:\n<\/p>\n
            ” …..          Thus, the law laid down by the Division<\/p>\n
            Bench       in the decision of KSL Industries can                        be<\/p>\n
            summarised as under:\n<\/p><\/blockquote>\n
                        (a)          The      Court    dealing             with        a\n\n\n\n\n\n                        complaint          under section 138 of the said\n\n                        Act     of    1881     has    an    option         to     take\n\n<\/pre>\n
                        evidence of the witnesses on the side of<\/p>\n
                        the     prosecution as well as evidence                      of<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                    : 12 :<\/span><\/p>\n
                      the     accused and the defence              witnesses,<\/p>\n
                      if any, on affidavit.\n<\/p><\/blockquote>\n
                      (b)       If      the evidence of a witness is<\/p>\n
                      taken on affidavit, after an application<\/p>\n
                      is    made     by the other party            under       sub<\/p>\n
                      section      (2)    of section 145, it is                not<\/p>\n
                      necessary           to            again             record<\/p>\n
                      examination-in-chief             of       the     witness<\/p>\n
                      whose     affidavit of examination-in-chief<\/p>\n
                      is already filed.\n<\/p><\/blockquote>\n
                      (c)       If      an affidavit is filed               under\n\n                      sub     section     (1) of section 145 and                 an\n\n                      application        is    made under sub           section\n      \n\n\n                      (2)     of section 145 by the other                 party,\n   \n\n\n\n<\/pre>\n
                      the witnesses must be made available for<\/p>\n
                      cross examination by the rival party.\n<\/p><\/blockquote>\n
    In    my view, the decision of the Division Bench                   clearly<\/p>\n
    and     unambiguously lays down the aforesaid               propositions<\/p>\n
    of    law and the Division Bench has clearly answered                      the<\/p>\n
    issue    which   was referred to it by the              learned       single<\/p>\n
    Judge of this Court.”\n<\/p>\n
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\n                                          : 13 :<\/span><\/p>\n
    12.       Therefore,          so    far as this Court is              concerned,<\/p>\n
    the     view     is settled.        However, I am informed that                   now<\/p>\n
    the     Apex Court is seized of matters involving the                            said<\/p>\n
    issue     and therefore if any modification is made by                            the<\/p>\n
    Apex Court in the view taken by this Court naturally the<\/p>\n
    learned        Magistrates will have to abide by the law                         laid<\/p>\n
    down     by     the Apex Court.           It was tried to be            submitted<\/p>\n
    that     the decision of this Court in the case of                         Peacock<\/p>\n
    Industries           Ltd (supra) which has taken the similar view<\/p>\n
    based     on     the case of KSL Industries (supra)                     has      been<\/p>\n
    stayed     by        the<\/p>\n
                               Apex Court.       However, the law             on     this<\/p>\n
    aspect     is        very clear.     In the case of Pramod K.                    Shah<\/p>\n
    Vs.     Commissioner of Custom Export Promotion and another<\/p>\n
    [2007     All MR (Cri) 1335] this Court has held that                            even<\/p>\n
    if a decision of this Court is stayed by the Apex Court,<\/p>\n
    unless     the        decision of this Court is set aside by                      the<\/p>\n
    Apex     Court,        the Courts sub-ordinate to this Court                      are<\/p>\n
    bound     by     the       same.    The said decision of            this       Court<\/p>\n
    follows        the     decision of the Apex Court in the case                       of<\/p>\n
    M\/s.Shree        Chamundi      Mopeds      Ltd Vs.        Church        of     South<\/p>\n
    Indian Trust Association, Madras (AIR 1992 Supreme Court<\/p>\n
    1434).\n<\/p>\n
    13.       That        takes    me    to    the   main      issue        which       is<\/p>\n
    canvassed        in these petitions regarding procedure to                          be<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                          : 14 :<\/span><\/p>\n
    followed regarding marking the documents as exhibits.                               I<\/p>\n
    am     dealing with a case where the parties lead                       evidence<\/p>\n
    by filing affidavits.           Whenever, an affidavit in lieu of<\/p>\n
    examination        in chief is filed, the witness has to enter<\/p>\n
    the     witness box and formally depose to the contents                           of<\/p>\n
    the     affidavit       and only thereafter an affidavit can                      be<\/p>\n
    read as examination in chief [See Shelatkar Construction<\/p>\n
    Pvt     Ltd.     Vs.    Creative Enterprises {2008 All MR                    (Cri)<\/p>\n
    475}].         After    the said formal examination in chief                      is<\/p>\n
    recorded,        the stage contemplated by section 294 of                       the<\/p>\n
    said     Code     of<\/p>\n
                            1973    will come     in    the       picture.          The<\/p>\n
    documents        are required to be tendered alongwith a                       list<\/p>\n
    and     the     rival    party is called upon to admit                  or     deny<\/p>\n
    genuineness        of such documents.         As per sub section 3 of<\/p>\n
    section 294 where the genuineness of any document is not<\/p>\n
    disputed,        such document may be read in evidence in                       the<\/p>\n
    trial        without    proof of the signature of the person                      by<\/p>\n
    whom     it purports to be signed.            Thus, when          genuineness<\/p>\n
    of     the     document produced is not disputed                 after       being<\/p>\n
    called        upon as required by sub-ection 1 of section 294,<\/p>\n
    the     said     document      can   be     treated      as      proved         and<\/p>\n
    examination of a witness for proving the document is not<\/p>\n
    required.        In this behalf, it will be necessary to refer<\/p>\n
    to a decision of Full Bench of this Court in the case of<\/p>\n
    Shaikh        Farid Hussainsab Vs.        State of Maharashtra (1981<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                       : 15 :<\/span><\/p>\n
    Maharashtra    Law Journal 345).           Paragraph 7 of the                 said<\/p>\n
    judgment reads thus:\n<\/p>\n
            “7.         Section 294 of the Code is introduced to<\/p>\n
            dispense      with this avoidable waste of time                        and<\/p>\n
            facilitate      removal        of such obstruction in                  the<\/p>\n
            speedy      trial.         The accused is now            enabled         to<\/p>\n
            waive the said right and save the time.                         This is<\/p>\n
            a     new     provision          having      no       corresponding<\/p>\n
            provision      in        the   repealed      Code       of     Criminal<\/p>\n
            Procedure.\n<\/p><\/blockquote>\n
                         ig     It     requires the prosecutor or                  the\n\n            accused,      as     the case may be, to admit or                     deny\n                       \n            the    genuineness          of the documents sought to                   be\n\n            relied against him at the outset in writing.                             On\n\n            his    admitting          or indicating no dispute                as     to\n      \n\n\n<\/pre>\n
            genuineness, the Court is authorised to dispense<\/p>\n
            with    its   formal proof thereof.                   Infact        after<\/p>\n
            indication     of no dispute as to the genuineness,<\/p>\n
            proof    of documents is reduced to a sheer                         empty<\/p>\n
            formality.         The     section is obviously aimed                    at<\/p>\n
            undoing       the    judicial       view        by       legislative<\/p>\n
           process.”\n<\/p><\/blockquote>\n
           process. (Emphasis supplied)<\/p>\n<\/blockquote>\n
    14.    The     issue before the Full Bench was answered in<\/p>\n
    paragraph 18 which reads thus:\n<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                             : 16 :<\/span><\/p>\n
               “18.          We accordingly hold that sub section (3)<\/p>\n
               of     section        294 of the Code covers                post-mortem<\/p>\n
               notes         and     every       other      document           of     which<\/p>\n
               genuineness            is      not        disputed.         Thus          such<\/p>\n
               documents           can   be read in evidence               as       genuine<\/p>\n
               without           the formal proof.         In our view,             Ganpat<\/p>\n
               Raoji’s           case       is    not     correctly            decided.”<\/p><\/blockquote>\n
\n\n\n\n\n                                                \n               (Emphasis added)\n\n\n\n    Therefore,        the\n                             ig  document     which is admitted              under       sub\n\n<\/pre>\n
    section 3 of section 294 of the said Code of 1973 can be<\/p>\n
    read     in evidence as genuine without the formal proof of<\/p>\n
    the     said document.           Therefore, after affidavit in                      lieu<\/p>\n
    of     examination in chief is filed and formal evidence of<\/p>\n
    the     witness     is        recorded,      the     exercise         provided         by<\/p>\n
    section     294     of the said Code of 1973 will have                          to     be<\/p>\n
    completed by the learned Magistrate.\n<\/p><\/blockquote>\n
    15.        The     real issue arises when a dispute is                          raised<\/p>\n
    regarding        the proof of a document or admissibility of a<\/p>\n
    document     in evidence which is tendered alongwith a list<\/p>\n
    of     documents        or     alongwith      an affidavit            in     lieu      of<\/p>\n
    examination-in-chief.                My attention was invited to                     the<\/p>\n
    decision     of the Apex Court in the case of Bipin Panchal<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                          : 17 :<\/span><\/p>\n
    (supra).      Paragraphs 12 to 15 of the said decision read<\/p>\n
    thus:\n<\/p>\n
               “12.      It    is        an archaic practice that                during<\/p>\n
            the       evidence       collecting         stage,       whenever         any<\/p>\n
            objection         is raised regarding admissibility                         of<\/p>\n
            any       material       in      evidence the Court             does      not<\/p>\n
            proceed          further      without passing order on                   such<\/p>\n
            objection.             But    the    fall     out      of     the      above<\/p>\n
            practice is this:                Suppose the trial Court, in a<\/p>\n
            case,<\/p>\n
                         upholds         a      particular       objection            and<\/p>\n
            excludes         the     material from being               admitted         in<\/p>\n
            evidence         and     then proceeds with the trial                     and<\/p>\n
            disposes         of the case finally.              If the appellate<\/p>\n
            or    revisional Court, when the same question                              is<\/p>\n
            re-canvassed, could take a different view on the<\/p>\n
            admissibility of that material in such cases the<\/p>\n
            appellate Court would be deprived of the benefit<\/p>\n
            of    that       evidence, because that was not put                         on<\/p>\n
            record       by the trial Court.              In such a situation<\/p>\n
            the       higher Court may have to send the case back<\/p>\n
            to    the trial Court for recording that                          evidence<\/p>\n
            and       then    to dispose of the case                 afresh.          Why<\/p>\n
            should the trial prolong like that unnecessarily<\/p>\n
            on    account          of practices created by                ourselves.\n<\/p><\/blockquote>\n
                                                         ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                 : 18 :<\/span><\/p>\n
      Such practices, when realised through the course<\/p>\n
      of     long      period to be hindrances              which       impede<\/p>\n
      steady         and swift progress of trial proceedings,<\/p>\n
      must      be     recast   or re-mouled to give                 way     for<\/p>\n
      better substitutes which would help acceleration<\/p>\n
      of trial proceedings.\n<\/p>\n
      13.        When        so recast, the practice which                   can<\/p>\n
      be    a   better substitute is this:                    Whenever         an<\/p>\n
      objection is raised during evidence taking stage<\/p>\n
      regarding
\n                  ig   the admissibility of any material                       or<\/p>\n
      item of oral evidence the trial Court can make a<\/p>\n
      note      of    such objection and mark               the      objected<\/p>\n
      document        tentatively as an exhibit in the                      case<\/p>\n
      (or     record     the    objected         part       of     the      oral<\/p>\n
      evidence)        subject    to     such      objections           to     be<\/p>\n
      decided at the last stage in the final judgment.\n<\/p>\n
      If    the Court finds at the final stage that                          the<\/p>\n
      objection        so raised is sustainable the Judge or<\/p>\n
      Magistrate        can keep such evidence excluded from<\/p>\n
      consideration.            In     our   view         there       is       no<\/p>\n
      illegality        in adopting such a course.                   However,<\/p>\n
      we    make it clear that if the objection                       relates<\/p>\n
      to    deficiency        of stamp duty of a document                    the<\/p>\n
      Court     has     to    decide     the       objection            before<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                               : 19 :<\/span><\/p>\n
      proceeding       further.          For all other            objections<\/p>\n
      the procedure suggested above can be followed.\n<\/p>\n
      14.        The    above procedure, if followed,                        will<\/p>\n
      have     two advantages.           First is that the time in<\/p>\n
      the     trial Court, during evidence taking                        stage,<\/p>\n
      would     not be wasted on account of raising                          such<\/p>\n
      objections and the Court can continue to examine<\/p>\n
      the     witnesses.         The witnesses need not wait for<\/p>\n
      long     hours,      if not days.          Second is          that      the<\/p>\n
      superior
\n                 igCourt,        when     the     same        objection         is<\/p>\n
      re-canvassed         and    reconsidered           in     appeal          or<\/p>\n
      revision against the final judgment of the trial<\/p>\n
      Court, can determine the correctness of the view<\/p>\n
      taken      by     the      trial        Court    regarding             that<\/p>\n
      objection,       without bothering to remit the                        case<\/p>\n
      to the trial Court again for fresh disposal.                              We<\/p>\n
      may     also point out that this measure would                          not<\/p>\n
      cause     any     prejudice        to     the    parties         to     the<\/p>\n
      litigation       and would not add to their misery or<\/p>\n
      expenses.\n<\/p>\n
      15.       We,     therefore,        make        the      above       as     a\n\n      procedure       to   be followed by the                trial       Courts\n\n      whenever    an       objection is raised regarding                      the\n\n\n\n\n                                                 ::: Downloaded on - 09\/06\/2013 13:53:14 :::<\/span>\n                                            : 20 :<\/span>\n\n\n\n\n               admissibility           of     any material or any                  item      of\n\n<\/pre>\n
               oral evidence.” (Emphasis supplied)<\/p>\n
    16.        My     attention        was also invited to a                   subsequent<\/p>\n
    decision         of     the        Apex    Court          in       the       case        of<\/p>\n
    R.V.E.Venkatachala (supra).                It must be stated here that<\/p>\n
    the   said       decision         is   rendered      in        a     Special          Leave<\/p>\n
    Petition arising out of a civil suit.                          However, the said<\/p>\n
    decision        will    be    relevant          in   so      far      as     proof       or<\/p>\n
    admissibility<\/p>\n
                           of    documents in evidence                  is     concerned.\n<\/p>\n
    Law   of     evidence as regards proof and admissibility                                 of<\/p>\n
    documents        is the same which is applicable to both civil<\/p>\n
    and   criminal trials.             It will be necessary to refer                         to<\/p>\n
    the relevant part of the said judgment.                            In paragraph 20<\/p>\n
    the Apex Court has held as under:\n<\/p>\n
               \"20.        The         learned           counsel               for         the\n\n\n\n\n\n               defendant-respondent                has   relied on             the      Roman\n\n               Catholic         Mission       v.      State         of       Madras        and<\/a>\n\n               another,         AIR    1966        SC 1457 in support                of    his\n\n\n\n\n\n               submission         that      a document not              admissible           in\n\n               evidence,         though       brought on record, has to                      be\n\n               excluded from consideration.                      We do not have any\n\n<\/pre>\n
               dispute with the proposition of law so laid down<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                               : 21 :<\/span><\/p>\n
      in the abovesaid case.            However, the present one<\/p>\n
      is    a case which calls for the correct                      position<\/p>\n
      of    law    being     made       precise.         Ordinarily           an<\/p>\n
      objection        to   the     admissibility            of     evidence<\/p>\n
      should      be   taken      when it is tendered               and     not<\/p>\n
      subsequently.               The      objections               as        to<\/p>\n
      admissibility         of    documents in evidence may                   be<\/p>\n
      classified       into two classes :- (i) an objection<\/p>\n
      that    the document which is sought to be                       proved<\/p>\n
      is    itself     inadmissible in evidence;                  and      (ii)<\/p>\n
      where<\/p>\n
                 the   objection        does      not      dispute          the<\/p>\n
      admissibility of the document in evidence but is<\/p>\n
      directed     towards the mode of proof alleging the<\/p>\n
      same    to   be irregular or insufficient.                     In     the<\/p>\n
      first      case, merely because a document has                       been<\/p>\n
      marked      as ‘an exhibit’, an objection as to                       its<\/p>\n
      admissibility         is not excluded and is                available<\/p>\n
      to    be    raised     even at later stage or                 even      in<\/p>\n
      appeal      or   revision.        In the latter           case,       the<\/p>\n
      objection should be taken before the evidence is<\/p>\n
      tendered and once the document has been admitted<\/p>\n
      in    evidence        and   marked   as       an     exhibit,         the<\/p>\n
      objection        that it should not have been admitted<\/p>\n
      in evidence or that the mode adopted for proving<\/p>\n
      the    document is irregular cannot be allowed                          to<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                               : 22 :<\/span><\/p>\n
      be raised at any stage subsequent to the marking<\/p>\n
      of    the    document    as   an   exhibit.          The      later<\/p>\n
      proposition is a rule of fair play.                The crucial<\/p>\n
      test    is   whether an objection, if taken at                   the<\/p>\n
      appropriate point of time would have enabled the<\/p>\n
      party    tendering the evidence to cure the defect<\/p>\n
      and    resort      to such mode of proof as            would       be<\/p>\n
      regular.      The omission to object becomes                  fatal<\/p>\n
      because      by    his failure the party          entitled         to<\/p>\n
      object      allows the party tendering the               evidence<\/p>\n
      to<\/p>\n
            act on an assumption that the opposite party<\/p>\n
      is    not serious about the mode of proof.                  On the<\/p>\n
      other       hand,   a   prompt     objection         does        not<\/p>\n
      prejudice     the party tendering the evidence, for<\/p>\n
      two    reasons:     firstly, it enables the court                  to<\/p>\n
      apply its mind and pronounce its decision on the<\/p>\n
      question     of admissibility then and there:                    and<\/p>\n
      secondly,     in the event of finding of the                  Court<\/p>\n
      on    the mode of proof sought to be adopted going<\/p>\n
      against      the    party tendering the evidence,                the<\/p>\n
      opportunity        of seeking indulgence of the               Court<\/p>\n
      for permitting a regular mode or method of proof<\/p>\n
      and thereby removing the objection raised by the<\/p>\n
      opposite     party,     is    available       to     the      party<\/p>\n
      leading      the    evidence.      Such       practice           and<\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                                 : 23 :<\/span><\/p>\n
                 procedure             is fair to both the parties.                  Out      of<\/p>\n
                 the         two       types     of      objections,       referred           to<\/p>\n
                 hereinabove,             in the later case failure to raise<\/p>\n
                 a      prompt and timely objection amounts to waiver<\/p>\n
                 of         the necessity for insisting on formal                        proof<\/p>\n
                 of         a    document,           the document itself          which       is<\/p>\n
                 sought             to    be     proved      being        admissible          in<\/p>\n
                 evidence.             In the first case, acquiescence would<\/p>\n
                 be         no bar to raising the objection in                      superior<\/p>\n
                 Court.” (Emphasis supplied)<\/p>\n
    17.          Thus,           the     Apex     Court      has     categorised            the<\/p>\n
    objections              raised       to the documents into             two      classes.\n<\/p>\n
    One     is        where admissibility of document in evidence                             is<\/p>\n
    not in dispute, but it is contended that the document is<\/p>\n
    not     proved              or the proof in support of the document                       is<\/p>\n
    insufficient.                  The    second category of objection is                     an<\/p>\n
    objection that the document which is sought to be proved<\/p>\n
    is itself inadmissible in evidence.                         The Apex Court held<\/p>\n
    that     in so far as in first category where dispute is of<\/p>\n
    proof of documents is concerned, the objection should be<\/p>\n
    taken        at     the earliest and the objection that the                            mode<\/p>\n
    adopted           for       proving        the      document     is     irregular         or<\/p>\n
    insufficient cannot be allowed to be raised at any stage<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                              : 24 :<\/span><\/p>\n
    subsequent to the marking of document as exhibit.                                     In so<\/p>\n
    far as the said category of objection that a document is<\/p>\n
    not     properly            proved     is        concerned,       the       Apex        Court<\/p>\n
    observed          that          if the said objection is raised                   at     the<\/p>\n
    outset,          it        enables    the Court to apply              its      mind       and<\/p>\n
    pronounce             its decision on the question then and                         there.\n<\/p>\n
    In     the event of finding of the Court on issue of                                   proof<\/p>\n
    of     document            going     against      the   party         tendering           the<\/p>\n
    document              in     evidence,      an      opportunity           of       seeking<\/p>\n
    indulgence            of the Court for leading further evidence to<\/p>\n
    prove the document by adopting proper mode is available.\n<\/p>\n
    In     so    far           as    the second       category       of     objection          is<\/p>\n
    concerned,            the Apex Court held that even if a                         document<\/p>\n
    is marked as exhibit, an objection simplicitor as to its<\/p>\n
    admissibility               is     not excluded and is available                    to     be<\/p>\n
    raised at a latter stage.\n<\/p>\n
    18.         It        must       be noted here that there is                   one       more<\/p>\n
    category          of objection which relates to insufficiency of<\/p>\n
    stamp       on        the document sought to be tendered.                        On      this<\/p>\n
    aspect       there          is     a decision of the Apex Court                    of     its<\/p>\n
    constitution               bench consisting of five Hon’ble Judges in<\/p>\n
    the     case of Javer Chand and others Vs.                          Pukhraj           Surana<\/p>\n
    (AIR        1961           Supreme    Court        1655).        The      Apex          Court<\/p>\n
    considered            the        provisions of section 36 of the                      Indian<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                        : 25 :<\/span><\/p>\n
    Stamp   Act and relevant provisions of the Evidence                              Act.\n<\/p>\n
    The Apex Court held as under:\n<\/p>\n
            “…..        Where a question as to the admissibility<\/p>\n
            of     a     document is raised on the ground that                          it<\/p>\n
            has     not been stamped, or has not been                         properly<\/p>\n
            stamped it has to be decided then and there when<\/p>\n
            the     document is tendered in evidence.                         Once the<\/p>\n
            Court        rightly or wrongly, decides to admit                         the<\/p>\n
            document         in evidence, so far as the parties are<\/p>\n
            concerned
\n                          ig   the matter is closed.               Section 35           is<\/p>\n
            in     the       nature       of a penal      provision           and     has<\/p>\n
            far-reaching           effects.      Parties to a litigation,<\/p>\n
            where        such a controversy is raised, have to                          be<\/p>\n
            circumspect            and     the      party       challenging           the<\/p>\n
            admissibility of the document has to be alert to<\/p>\n
            see     that       the     document     is      not      admitted           in<\/p>\n
            evidence         by     the    Court.         The      Court       has      to<\/p>\n
            judicially         determine the matter as soon as                        the<\/p>\n
            document         is tendered in evidence and before                         it<\/p>\n
            is     marked         as   an exhibit, in          the        case.       The<\/p>\n
            record        in this case discloses the fact that the<\/p>\n
            hundis        were marked as Exhibits P.1 and P.2                         and<\/p>\n
            bore       the     endorsement       ‘admitted           in     evidence’<\/p>\n
            under        the      signature of the Court.                 It is      not,<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                               : 26 :<\/span><\/p>\n
                therefore,          one of those cases where a                      document<\/p>\n
                has     been       inadvertently admitted,                   without        the<\/p>\n
                Court        applying its mind to the question of                           its<\/p>\n
                admissibility.                Once a document has been marked<\/p>\n
                as     an        exhibit       in the case and the              trial        has<\/p>\n
                proceeded          all        along     on the footing            that       the<\/p>\n
                document was an exhibit in the case and has been<\/p>\n
                used        by     the parties in examination                   and       cross<\/p>\n
                examination             of     their     witnesses, S.36             of      the<\/p>\n
                Stamp        Act    comes           into consideration.               Once      a<\/p>\n
                document
\n                              ig  has        been     admitted      in     evidence,          as<\/p>\n
                aforesaid,          it        is not open either to the                   Trial<\/p>\n
                Court itself or to a Court of Appeal or revision<\/p>\n
                to go behind that order.                   …..”\n<\/p><\/blockquote>\n
    19.         The position under the Bombay Stamp Act, 1958 is<\/p>\n
    no    different in view of section 35 thereof.                              Therefore,<\/p>\n
    the    Apex       Court        has held that where a question                      as     to<\/p>\n
    admissibility            of document is raised on the ground                           that<\/p>\n
    it    has     not       been     stamped or          has     not     been       properly<\/p>\n
    stamped,         the party challenging the admissibility of the<\/p>\n
    document         has to raise the objection at the earliest and<\/p>\n
    the Court has to judicially determine the matter as soon<\/p>\n
    as the document is tendered in evidence and before it is<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                            : 27 :<\/span><\/p>\n
    marked as an exhibit in the case.\n<\/p>\n
    20.        It will be necessary to refer to criminal manual<\/p>\n
    issued by this Court.                The preface to criminal manual by<\/p>\n
    the     learned        Registrar       of      this   Court        records          that<\/p>\n
    criminal        manual published in the year 1960 was                        revised<\/p>\n
    taking into consideration the fact that the said Code of<\/p>\n
    1973     came into force.             The preface specifically records<\/p>\n
    that     the     revised        draft       of the    criminal        manual         was<\/p>\n
    approved        by     the     Hon’ble the Governor in               exercise         of<\/p>\n
    power<\/p>\n
              under clause 3 of Article 227 of the Constitution<\/p>\n
    of India.        The gazette notification dated 20th June 1982<\/p>\n
    specially        records that in exercise of powers                       conferred<\/p>\n
    by Article 227 of the Constitution of India, the Hon’ble<\/p>\n
    the     Chief        Justice        has been pleased        to     appoint          16th<\/p>\n
    August        1982     as the date on which the revised                     criminal<\/p>\n
    manual        came into force.          Thus, it is apparent that                   the<\/p>\n
    criminal        manual       and the rules contained               therein         have<\/p>\n
    been     issued in exercise of powers conferred by                           Article<\/p>\n
    227     (2)     (b)     of the Constitution of India.                     The       said<\/p>\n
    provision        empowers       the     High Court to make              and      issue<\/p>\n
    general        rules regulating the practice and proceeding of<\/p>\n
    Courts        sub-ordinate          to this Court.        In this context               a<\/p>\n
    reference        will        have    to be made to Chapter VI                 and     in<\/p>\n
    particular paragraphs 33 and 34 thereof which read thus:\n<\/p>\n
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\n                                 : 28 :<\/span><\/p>\n
      “33.       (1)           When the documents are sought to<\/p>\n
      be     produced in the courts, the courts concerned<\/p>\n
      should        insist      upon the list of such               documents<\/p>\n
      and    the      production         thereof       being        made        in<\/p>\n
      chronological or some other methodical order.<\/p>\n
\n\n\n\n\n                                                \n      (2)        Similarly,           the courts concerned               should\n\n\n\n\n                                     \n      determine        as to whether documents sought to                        be\n\n      produced         in      the    court      are       relevant           and\n\n      admissible\n                 ig       or     not,     at     the      time      when      the\n\n      documents        are sought to be produced, and not at\n               \n      the time of the delivery of judgment.\n\n\n\n      34.        When       a witness prove any document,                     the\n      \n\n\n      correct       exhibit       number should          immediately            be\n   \n\n\n\n<\/pre>\n
      noted (i) on the document itself and (ii) in the<\/p>\n
      body     of     deposition against the description                        of<\/p>\n
      the      documents         so     that     the       appellate            or<\/p>\n
      revisional        court        may not be required to                waste<\/p>\n
      its    time in tracing the documents.                       Similarly,<\/p>\n
      when     another         witness     who      has      already         been<\/p>\n
      examined       is      referred to by any witness in                    its<\/p>\n
      deposition, the exhibit number of the deposition<\/p>\n
      of such other witness should invariably be noted<\/p>\n
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\n                                           : 29 :<\/span><\/p>\n
               in      the        deposition        immediately            after         the<\/p>\n
               reference to the witness.”\n<\/p>\n
    Clause     2     of     paragraph         33   thus    provides          that       when<\/p>\n
    documents        are sought to be produced in Court, the issue<\/p>\n
    of     admissibility          has    to be decided and it                cannot        be<\/p>\n
    postponed        till       the     delivery    of     judgment.             Rule      34<\/p>\n
    mandates        that     when a witness has proved any                     document,<\/p>\n
    the     document        should be immediately marked as                      exhibit.\n<\/p>\n
    Rule<\/p>\n
             34 further provides that the exhibit number                              shall<\/p>\n
     be     incorporated on the document itself and also in<\/p>\n
    the body of deposition.\n<\/p>\n
    21.        On this aspect, it will be necessary to refer to<\/p>\n
    another        decision of the Apex Court in the case of                            Sait<\/p>\n
    Tarajee Khimchand and others Vs.                      Yelamarti Satyam Alias<\/p>\n
    Satteyya        and others [(1972) 4 Supreme Court Cases 562].\n<\/p>\n
    The     Apex     Court        in the said decision            reiterated             well<\/p>\n
    established           principle       that     the     mere     marking         of     an<\/p>\n
    exhibit        does     not       dispense     with      the      proof       of      the<\/p>\n
    documents.            The     said principle has been reiterated                       by<\/p>\n
    the     Apex     Court        in a recent decision in               the      case      of<\/p>\n
    Narbada        Devi     Gupta       Vs.    Birendra      Kumar        Jaiswal         and<\/p>\n
    another        [(2003) 8 Supreme Court Cases 745].                         Paragraph<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                      : 30 :<\/span><\/p>\n
    16 of the said decision reads thus:\n<\/p>\n
           “16.          Reliance     is heavily placed on behalf of<\/p>\n
           the     appellant on the case of Ramji Dayawala and<\/p>\n
           Sons     (P)      Ltd.     The legal position is              not      in<\/p>\n
           dispute        that     mere production and marking of                   a<\/p>\n
           document          as exhibit by the court cannot be held<\/p>\n
           to     be     a   due    proof     of   its     contents.              Its<\/p>\n
           execution         has    to   be   proved       by       admissible<\/p>\n
           evidence,         that    is, by the “evidence             of     those<\/p>\n
           persons<\/p>\n
                          who can vouchsafe for the truth of                      the<\/p>\n
           facts        in   issue”.     The situation         is,      however,<\/p>\n
           different where the documents are produced, they<\/p>\n
           are     admitted by the opposite party,                  signatures<\/p>\n
           on     them       are also admitted and they are                marked<\/p>\n
           thereafter as exhibits by the court.                     We find no<\/p>\n
           force        in the argument advanced on behalf of the<\/p>\n
           appellant         that as the mark of exhibits has been<\/p>\n
           put     on     the back portions of the rent                 receipts<\/p>\n
           near     the place where the admitted signatures of<\/p>\n
           the     plaintiff        appear, the rent receipts                as     a<\/p>\n
           whole        cannot be treated to have been                exhibited<\/p>\n
           as admitted documents.” (Emphasis added)<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                                 : 31 :<\/span><\/p>\n
    On     this     aspect,           it will be necessary to                   refer       to     a<\/p>\n
    decision of this Court in the case of Bama Kathari Patil<\/p>\n
    Vs.      Rohidas              Arjun    Madhavi         and     another         (2004         (2)<\/p>\n
    Maharashtra          Law        Journal 752).          The learned             Judge       was<\/p>\n
    dealing with a writ petition arising out of a civil suit<\/p>\n
    but     what        is        laid     down by this          Court       will      be     very<\/p>\n
    relevant        even          in a criminal trial.               The learned            Judge<\/p>\n
    held     that        a        document      is required          to      be     proved        in<\/p>\n
    accordance           with the provisions of the Evidence Act                               and<\/p>\n
    merely        for        administrative convenience of                      locating         or<\/p>\n
    identifying<\/p>\n
                         the document, it is given exhibit number by<\/p>\n
    the     Court.            It is held that exhibiting a document                              has<\/p>\n
    nothing        to        do     with     its proof       though          as     matter        of<\/p>\n
    convenience only the proved documents are exhibited.\n<\/p><\/blockquote>\n
    22.        The submissions have been made by pointing out a<\/p>\n
    consistent            practice           followed       in         the        Courts          in<\/p>\n
    Maharashtra          that when a document is referred to                              during<\/p>\n
    the     course of cross-examination of a witness, the                                     said<\/p>\n
    document        is        marked       as   an exhibit though                 it    is       not<\/p>\n
    earlier        marked          as an exhibit.          This is nothing                 but     a<\/p>\n
    practice        of convenience.              The practice of the marking a<\/p>\n
    document        referred             to in the cross-examination is                       only<\/p>\n
    the     purposes          of      locating       and    identifying              the      said<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                              : 32 :<\/span><\/p>\n
    document.            Marking       a     document as exhibit            by     such       a<\/p>\n
    process     based          on consistent practice followed                     in     the<\/p>\n
    Court     of law does not dispense with the requirement                                 of<\/p>\n
    proof     of the execution, contents and genuineness of the<\/p>\n
    document        in the accordance with law of evidence                           unless<\/p>\n
    the      witness           concerned       admits       the      execution            and<\/p>\n
    genuineness           of     the       document.     Therefore,           marking         a<\/p>\n
    document        in     cross-examination in this manner will                          not<\/p>\n
    dispense        with       the proof of the document in                   accordance<\/p>\n
    with law of evidence.\n<\/p>\n
    23.        As        set     out       earlier, the Apex Court               has     made<\/p>\n
    three     categories           of objections raised by                 rival        party<\/p>\n
    when    documents are produced in Court of law.                             The first<\/p>\n
    objection is regarding insufficiency of the proof and\/or<\/p>\n
    irregular        mode adopted for proving the document.                              This<\/p>\n
    objection        is        that the document has not been proved                        in<\/p>\n
    accordance           with law.         The second objection is that                   the<\/p>\n
    document        is     not     properly stamped as required                    by     the<\/p>\n
    Stamp     Act or Bombay Stamp Act as the case may be.                                 The<\/p>\n
    third objection is that the document sought to be proved<\/p>\n
    is     otherwise inadmissible in evidence.                       In the case            of<\/p>\n
    R.V.E.Venkatachala             (supra)         the   Apex      Court        has      made<\/p>\n
    specific         distinction            between      the      first          objection<\/p>\n
    regarding        insufficiency            of    proof       or     irregular            or<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                         : 33 :<\/span><\/p>\n
    incorrect         mode     of     proof    and      the    other         objection<\/p>\n
    regarding        inadmissibility in evidence.                The Apex          Court<\/p>\n
    observed        that is so far as objection regarding proof of<\/p>\n
    document        is concerned, the same has to be decided                         then<\/p>\n
    and     there.         However, even after marking a document                       as<\/p>\n
    exhibit, an objection to its admissibility can be raised<\/p>\n
    at     any stage of the proceedings.                The decision on              this<\/p>\n
    objection        can     be postponed till final disposal of                      the<\/p>\n
    case.      As     pointed        out earlier, as        far      as      objection<\/p>\n
    regarding        insufficiency       of    stamp      is     concerned,           the<\/p>\n
    constitution<\/p>\n
                           bench    of the Apex Court has already                    held<\/p>\n
    that     such objection has to be raised before a                         document<\/p>\n
    is     marked     as     exhibit and the same has to                be     decided<\/p>\n
    immediately.\n<\/p>\n
    24.        At     this stage, it will be necessary to go                         back<\/p>\n
    to     the decision of the apex Court in the case of                           Bipin<\/p>\n
    Panchal        (supra).        In paragraph 12 of the said                judgment<\/p>\n
    the     Apex     Court     has referred        to    objection          regarding<\/p>\n
    admissibility of any material in evidence.                         Paragraph 13<\/p>\n
    again refers to the objection regarding admissibility of<\/p>\n
    any     material or item of oral evidence.                   In paragraph 14<\/p>\n
    the     Apex     Court     has     noted   a     contingency          where       the<\/p>\n
    decision        taken on objection regarding admissibility may<\/p>\n
    amount to wasting the time of the Court and delaying the<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                           : 34 :<\/span><\/p>\n
    further recording of evidence.                 An argument was advanced<\/p>\n
    that   in    the case of Peacock Industries (supra) and                           in<\/p>\n
    particular        in        paragraph    41   thereof     this      Court       has<\/p>\n
    accepted     that        the procedure laid down in the                 case      of<\/p>\n
    Bipin Panchal (supra) has to be followed in trials under<\/p>\n
    section     138        of     the said Act.     My attention          was      also<\/p>\n
    invited to a decision of another learned single Judge of<\/p>\n
    this   Court which is rendered in the case of M\/s.Peacock<\/p>\n
    Industries        and       another     Vs.    Wipro    Finance         Ltd     and<\/p>\n
    another     dated 04th October 2005 wherein this Court held<\/p>\n
    that the course adopted by the Apex Court in the case of<\/p>\n
    Bipin Panchal (supra) is required to be followed.                            After<\/p>\n
    referring     to        the     case of Bipin     Panchal        (supra),         in<\/p>\n
    paragraph 10 the learned Judge has observed thus:\n<\/p>\n
               “10.         It is clarified that if any objection is<\/p>\n
               raised           during      the    evidence      taking           stage<\/p>\n
               regarding          admissibility of any material or item<\/p>\n
               or oral evidence, the trial Court to make a note<\/p>\n
               of such objection and mark the objected document<\/p>\n
               or portion tentatively as an exhibit in the case<\/p>\n
               subject          to such objections to be decided at the<\/p>\n
               last stage during the final judgment.”\n<\/p><\/blockquote>\n
                                                       ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                                 : 35 :<\/span><\/p>\n
    25.          On        plain        reading of the decision of                         the      Apex<\/p>\n
    Court        in    the        case       of Bipin Panchal                 (supra),           it    is<\/p>\n
    apparent          that the same does not deal with an                                  objection<\/p>\n
    as regards proof of a document or insufficiency of proof<\/p>\n
    or     incorrect             mode of proof.             The said            judgment           deals<\/p>\n
    with     objection                regarding       the         admissibility               of      the<\/p>\n
    document          in     evidence which is a separate                             category         of<\/p>\n
    objection          as distinguished from an objection                                  regarding<\/p>\n
    proof        as    laid           down by the Apex Court in the                           case     of<\/p>\n
    R.V.E.Venkatachala                  (supra).            It     is         true       that         the<\/p>\n
    procedure          laid
\n                                  ig  down by the Apex Court in the                          case      of<\/p>\n
    Bipin        Panchal          (supra) will have to be followed by                                 the<\/p>\n
    Courts        sub-ordinate               to this Court.                However, the             said<\/p>\n
    decision          of     Apex        Court        is        applicable          only       to     one<\/p>\n
    category          of     objection regarding admissibility                                of      the<\/p>\n
    document           in         evidence        and            that      decision           has      no<\/p>\n
    application             when an objection is raised to the proof or<\/p>\n
    to     irregular\/insufficient mode of proof of a                                       document.\n<\/p>\n
    As     far        as objection regarding inadequacy of                                 stamp       is<\/p>\n
    concerned that is already settled by the larger bench of<\/p>\n
    the     Apex Court in the case of Javer Chand.                                     Infact,         in<\/p>\n
    the     decision             of     this     Court in the                case       of     Peacock<\/p>\n
    Industries             (supra),          the judgment of the Apex Court                            in<\/p>\n
    the     case       of        Bipin       Panchal (supra) is                   not        read     and<\/p>\n
    interpreted             to        mean     that        it      also       applies          to     the<\/p>\n
                                                                        ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                               : 36 :<\/span><\/p>\n
    objection          regarding         proof    of    documents.              Therefore,<\/p>\n
    after        filing        of affidavit of examination-in-chief                           and<\/p>\n
    after        recording           formal      examination-in-chief                of       the<\/p>\n
    concerned          witness, an objection raised regarding                               proof<\/p>\n
    of     documents           or insufficiency of proof or of                      adopting<\/p>\n
    incorrect mode of proof has to be dealt with immediately<\/p>\n
    by     the     learned Magistrate before proceeding                           with        the<\/p>\n
    recording          of      cross-examination.         Only in a case                    where<\/p>\n
    the said adjudication involves a decision on complicated<\/p>\n
    questions which require a very detailed adjudication, it<\/p>\n
    can     be     postponed
\n                                ig     till the final hearing.                In        a    case<\/p>\n
    where        a document is proved in accordance with                            Evidence<\/p>\n
    Act     but an objection is raised to the admissibility                                    of<\/p>\n
    the said document, as held by the Apex Court in the case<\/p>\n
    of      Bipin       Panchal         (supra),        such      document          can         be<\/p>\n
    tentatively           marked        as an exhibit as objection                   to       the<\/p>\n
    admissibility              can     be     decided at the         stage         of       final<\/p>\n
    hearing        as contemplated in the decision of the case                                 of<\/p>\n
    Bipin        Panchal        (supra).         As pointed         out      earlier,          if<\/p>\n
    objection          regarding proof of a document is decided, the<\/p>\n
    complainant           or     accused       who     has      produced           the       said<\/p>\n
    documents          is put to the notice that the document is not<\/p>\n
    held     as proved so that he can seek indulgence from                                    the<\/p>\n
    Court         of    leading         further        evidence.           This             avoids<\/p>\n
    possibility of parties applying at the stage of judgment<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                         : 37 :<\/span><\/p>\n
    for     recalling        the   witness     or     for       leading          further<\/p>\n
    evidence for proving a document.\n<\/p>\n
    26.        I     have     already   held        that      merely        because         a<\/p>\n
    document       referred to in cross-examination is marked                             as<\/p>\n
    an exhibit, the same does not dispense with the proof of<\/p>\n
    document in accordance with law of evidence.\n<\/p>\n
    27.        After        summarising the law on the aspects stated<\/p>\n
    above,     now it will be necessary to deal with the merits<\/p>\n
    of<\/p>\n
           the petitions which are before the Court.                            Criminal<\/p>\n
    Writ     Petition        Nos.331 of 2008, 1170 of 2008,                     1171      of<\/p>\n
    2008     and     1172     of 2008 are concerned, the                  prayer        for<\/p>\n
    directing the complainant to step into witness box based<\/p>\n
    on sub section 2 of section 145 cannot be entertained in<\/p>\n
    view of the decision in K.S.L.               Industries (supra).\n<\/p>\n
    28.        Now     turning to the Criminal Application No.2633<\/p>\n
    of     2008, it will be necessary to refer to the                           impugned<\/p>\n
    order.         As pointed out earlier, the challenge is to the<\/p>\n
    order     dated     02nd       August 2008 passed            by      the     learned<\/p>\n
    Magistrate.         Before passing the said order, the learned<\/p>\n
    Judge     has passed an order dated 16th July 2008                           marking<\/p>\n
    the     certain documents as exhibits.                  While doing so              the<\/p>\n
    learned        Judge has observed that so far as proof of                           the<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                           : 38 :<\/span><\/p>\n
    contents        of     the     documents is concerned,                it       will    be<\/p>\n
    decided        on     totality of the evidence leaving                       open     the<\/p>\n
    question        of     evidentiary value of the               said         documents.\n<\/p>\n
    While     passing order dated 02nd August 2008, the learned<\/p>\n
    Judge has observed as under:\n<\/p>\n
               “….       As the question of admissibility of those<\/p>\n
               documents          was     raised at that time itself,                     the<\/p>\n
               witness was taken into witness box, the oath was<\/p>\n
               administered             to him and it was already                   decided<\/p>\n
               that<\/p>\n
                          the documents were admissible in                         evidence<\/p>\n
               by        virtue of sections 77 and 79 of the Evidence<\/p>\n
               Act.         Each     and every document was referred                       by<\/p>\n
               the       witness by standing in the witness box                           and<\/p>\n
               each       and      every document came to               be       exhibited<\/p>\n
               there.       Then the examination in chief was closed<\/p>\n
               and       the case is for cross examination.                         So    the<\/p>\n
               provisions          of     para    33    of Chapter             6    of    the<\/p>\n
               Criminal          Manual     are complied with.               So far        as<\/p>\n
               the       evidentiary        value      of      the      document           is<\/p>\n
               concerned,          the     same has to be decided                   in    the<\/p>\n
               judgment only.\n<\/p><\/blockquote>\n
               .            Para        No.33    of    the Chapter           6      of    the<\/p>\n
               Criminal Manual never contemplates to decide the<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                            : 39 :<\/span><\/p>\n
               evidentiary value of the document at the time of<\/p>\n
               filing        them    in the Court, otherwise the                      Court<\/p>\n
               will have to give judgment every time on each of<\/p>\n
               every document whenever document is sought to be<\/p>\n
               filed on record.”\n<\/p><\/blockquote>\n
    In     this     order     the     learned Judge         has      observed          that<\/p>\n
    compliance has been made with provisions of paragraph 33<\/p>\n
    of     Chapter VI while marking the documents.                        The learned<\/p>\n
    Judge     has     observed that in so far as                 the      evidentiary<\/p>\n
    value     of<\/p>\n
                     the document is concerned, the same                        will      be<\/p>\n
    decided at the time of the judgment.                      In the first order<\/p>\n
    referred        to above, the learned Judge has held that even<\/p>\n
    the     issue regarding proof of contents of the                           documents<\/p>\n
    will     have     to be decided on totality of                   evidence.            In<\/p>\n
    order     dated     16th        July     2008, the      learned         Judge       has<\/p>\n
    specifically        recorded that the learned counsel for                           the<\/p>\n
    petitioner        does     not     object to       admissibility             of     the<\/p>\n
    documents        except     document at serial no.1 which is                        the<\/p>\n
    affidavit        in lieu of examination in chief.                     The perusal<\/p>\n
    of the order dated 16th July 2008 shows that there is no<\/p>\n
    specific        objection       raised regarding the proof                   of     the<\/p>\n
    documents.         The     order        dated 16th July 2008               has     been<\/p>\n
    recorded         during     the        course     of      recording              formal<\/p>\n
    examination-in-chief             of     the     complainant.          As     far      as<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 13:53:14 :::<\/span>
\n                                              : 40 :<\/span><\/p>\n
    objection            to     the     admissibility        of       affidavit            of<\/p>\n
    examination-in-chief                is concerned, as stated above, the<\/p>\n
    interpretation              made by this Court of section 145(2)                       of<\/p>\n
    the     said Act of 1881 stands and therefore objection                                to<\/p>\n
    admissibility             of the affidavit of examination in                      chief<\/p>\n
    cannot         be     sustained.          In     the     circumstances,                no<\/p>\n
    interference           is       called    for with the        impugned            orders<\/p>\n
    subject to what is laid down in this judgment.\n<\/p>\n
    29.        In        Criminal       Writ Petition no.738 of 2008,                    the<\/p>\n
    learned<\/p>\n
                   Judge has tentatively marked all the                        documents<\/p>\n
    produced        by        the     complainant     as    exhibits.            As     held<\/p>\n
    earlier,             before          proceeding          to         record           the<\/p>\n
    cross-examination,                the learned Judge will have to                    deal<\/p>\n
    with     the        objection as regards proof of                 the      documents<\/p>\n
    leaving        the objection, if any, as regards admissibility<\/p>\n
    open.\n<\/p>\n
    30.        Hence, I pass the following order:\n<\/p>\n
               .               Subject       to    what    is observed           in     this\n\n\n\n\n\n               judgment,            no case for interference is made                     out\n\n               and the petitions are disposed of.\n\n\n\n\n                                                            ::: Downloaded on - 09\/06\/2013 13:53:14 :::<\/span>\n            : 41 :<\/span>\n\n\n\n\n                          (A.S. Oka, J)\n\n\n\n\n                                            \n                    \n                   \n            \n       \n      \n      \n   \n\n\n\n\n\n\n                    ::: Downloaded on - 09\/06\/2013 13:53:14 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Geeta Marine Services Pvt Ltd vs The State & Another on 22 September, 2008 Bench: A.S. Oka IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2633 OF 2008 Geeta Marine Services Pvt Ltd & another .. Applicants Vs. The State & another .. Respondents Mr.Vijay Pradhan, Sr […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-162499","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nGeeta Marine Services Pvt Ltd vs The State & Another on 22 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/geeta-marine-services-pvt-ltd-vs-the-state-another-on-22-september-2008-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Geeta Marine Services Pvt Ltd vs The State & Another on 22 September, 2008 - 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