Disposed

Ashutosh Mukhyopadyay v. the State of Maharashtra and Anr.

Bombay HC22 Sept 2008WP/331/2008

Case brief

AI extract

What is this about?

Single Judge held that for Section 138 complaints, if documents are admitted in evidence via Section 294 CrPC, they may remain marked as exhibits while admissibility is decided later. However, objections regarding proof or mode of proof must be decided immediately before cross-examination. Disposition: Petitions disposed.

What did the court decide?

No interference in impugned orders directed to comply with the procedure laid down on proof vs admissibility.

Ashutosh Mukhyopadyay Vs the State of Maharashtra and Anr. — Cheque Dishonour | Bombay HC (2008)

¶1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶2

CRIMINAL APPELLATE JURISDICTION

¶3

CRIMINAL APPLICATION NO.2633 OF 2008

¶4

Geeta Marine Services Pvt Ltd
& another.. Applicants

¶5

Vs.

¶6

The State & another.. Respondents

¶7

Mr.Vijay Pradhan, Sr Counsel with Mr.R.Satyanarayanan
i/by Ravindra Sharma for the applicants.
Mr.D.R. More, A.P.P for the State.
Mr.Joseph Verghese for the respondent no.2.

¶8

WITH

¶9

CRIMINAL WRIT PETITION NO.331 OF 2008

¶10

Shri Ashutosh Mukhyopadyay.. Petitioner

¶11

Vs.

¶12

The State of Maharashtra & another.. Respondents

¶13

Mr.S.V.Marwadi i/by Mr.S.P.Narkar for the petitioner.
Mr.D.R.More, A.P.P for the State.
Mr.R.Satyanarayanan with Mr.J.S.Darod for respondent
no.2.

¶14

WITH
CRIMINAL WRIT PETITION NO.1170 OF 2008
WITH
CRIMINAL WRIT PETITION NO.1171 OF 2008
WITH
CRIMINAL WRIT PETITION NO.1172 OF 2008

¶15

Shri S.N.Khetan.. Petitioner
(In all three petitions)

¶16

Vs.

¶17

The State of Maharashtra & another.. Respondents
(In all three petitions)

¶18

: 2 :

¶19

Mr.S.V.Marwadi i/by Mr.S.P.Narkar for the petitioner in
all three petitions.
Mr.J.P.Yagnik, A.P.P for the State in all three
petitions.

¶20

Mr. Yashpal Thakur a/w Mr. Sameer Mohite, Mr.Vivek
Patil and Ms Puja Zade i/by M/s.Paras Kuhad & Associates
for respondent no.2 in all three petitions.

¶21

WITH

¶22

CRIMINAL WRIT PETITION NO.738 OF 2008

¶23

Mr.Ketan Anant Rajpopat

¶24

Vs.

¶25

The State of Maharashtra & another.. Respondents

¶26

Mr.Uday Warunjikar for the petitioner.
Mrs.P.P.Shinde, A.P.P for the State.

¶27

Mr.Kafil Khan & Ms Archana Thakkar for respondent no.2.

¶28

CORAM : ABHAY S.OKA, J.

¶29

DATE : 19th & 22nd September 2008.

¶30

ORAL JUDGMENT:

¶31

.I have heard the submissions of the learned
Counsel appearing for the parties. With a view to
appreciate the submissions of the learned counsel
appearing for the parties, it will be necessary to refer
to the facts of the case in brief.

¶32

2.Criminal Writ Petition No.331 of 2008 has been
filed for challenging the order dated 27th December 2007

¶33

: 3 :

¶34

passed by the learned Metropolitan Magistrate by which
an application made by the petitioner under section
145(2) of the Negotiable Instruments Act, 1881
(hereinafter referred to as the said Act) has been
rejected. The petitioner has been arraigned as an
accused in a complaint filed by the 2nd respondent under
section 138 of the said Act. The application was made
by the petitioner contending that in view of sub section
2 of section 145 of the said Act, the 2nd respondent

¶35

will have to appear before the Court and his
examination-in-chief will have to be recorded with
regard to the facts stated in the affidavit in lieu of
examination-in-chief.

¶36

3.Criminal Writ Petition Nos.1170 of 2008, 1171 of
2008 and 1172 of 2008 have been filed by the same
petitioner who has been arraigned as an accused in
complaints filed by the 2nd respondent in these
petitions under section 138 of the said Act. The
challenge in these petitions is to the order dated 30th
May 2008 by which the similar applications made by the
petitioner under sub section 2 of section 145 of the
said Act have been rejected.

¶37

4.In Criminal Writ Petition No.738 of 2008, the

¶38

: 4 :

¶39

2nd respondent is the complainant in a complaint under
section 138 of the Negotiable Instruments Act, 1881.
Here again, the challenge by the petitioner accused is
to the order passed on application made by the
petitioner under section 145(2) of the said Act.

¶40

5.In so far as Criminal Application No.2633 of
2008 is concerned, the controversy is some what
different. This application under section 482 of the
Code of Criminal Procedure, 1973 has been filed by the
accused in a complaint filed by the 2nd respondent under
section 138 read with section 141 of the said act.
Here, the challenge is to the order dated 02nd August
2008 passed by the learned Magistrate. In this case
evidence was adduced by the complainant by filing an
affidavit in lieu of examination-in-chief. The
complainant stepped into witness box for recording a
formal examination in chief in which he stated that the
contents of the affidavit were as per his personal
knowledge. He referred to the list of documents
produced separately. In his examination in chief, the
learned Judge noted that so far as proof of contents of
document is concerned that will be decided on totality
of evidence. The question of evidentiary value of the
said documents was left open and the learned Judge

¶41

: 5 :

¶42

proceeded to exhibit the documents produced by the
complainant. An application was made on behalf of the
applicants accused contending that it was necessary to
decide the issue of relevancy and admissibility of
documents tendered by the 2nd respondent complainant at
Exhibit P-2 to P-17 and Exhibit P-19 and the said
documents be declared as inadmissible. By order dated
02nd August 2008, the leaned Magistrate rejected the
said application by recording that provisions of
paragraph 33 of Chapter VI of the Criminal Manual have
been complied with. He observed that when the
complainant entered the witness box, each and every
document came to be exhibited. The learned Judge
observed that paragraph 33 of Chapter VI of the Criminal
Manual never contemplates a decision on the evidentiary
value of the documents at the time of filing them in the
Court.

¶43

6.The first submission made by the learned counsel
appearing for the applicants/petitioners was on the
interpretation of section 145(2) of the said Act. It
must be stated here that when the view taken by a
Division Bench of this Court on the interpretation of
section 145(2) in the case of KSL and Industries Ltd Vs.
Mannalal Khandelwal and another (2005 Criminal Law

¶44

: 6 :

¶45

Journal 1201) as well as the view taken by several
learned single Judges of this Court was brought to the
notice of the learned counsel appearing for the
petitioners/applicants, it was pointed out that the said
view is subject matter of challenge in Special Leave
Petitions before the Apex Court which are being heard.
Since this Court has already taken a view, no
submissions are made on the said aspect of the case with
a prayer that the said contention may be kept open.

¶46

7.The main submissions have been made on the
procedure to be followed when the evidence of the
complainant is recorded by permitting filing of an
affidavit in lieu of examination in chief in a complaint
under section 138 of the said Act. Shri Marwadi
appearing for the petitioners in some of the petitions
submitted that immediately after examination-in-chief in
the form of an affidavit of the complainant is recorded,
the learned Magistrate is under an obligation to
consider whether the documents produced by the
complainant are admissible in evidence and whether the
said documents have been duly proved. He submitted that
unless the issue regarding proof and admissibility of
documents is immediately decided by the Magistrates, it
is not possible to effectively cross-examine the

¶47

: 7 :

¶48

complainant as the cross-examiner does not know as to
which documents are held as proved. He submitted there
is well established practice followed in all Courts in
the State that if cross-examination of a witness is made
by referring a document to the witness, the said
document is admitted in evidence and is marked as an
exhibit. He submitted that in view of this practice, a
seasoned advocate never cross-examines a witness on a
document which is not proved by the rival party. His
contention is that if issue of proof of the documents is
postponed till final arguments, the advocate cross
examining a witness is put to a disadvantage. His
submission is that if the decision on the aspect of
admissibility and proof of documents produced by the
complainant is postponed till the final arguments,
prejudice will be caused to the accused as advocate for
accused is not in a position to effectively
cross-examine the complainant or his witnesses. He has
referred to several decisions, a reference to which is
made in this judgment. Same are the submissions made by
Shri J.P.Cama, the learned senior counsel appearing in
support of Criminal Writ Petition No.738 of 2008.

¶49

8.The learned senior counsel appearing in support
of Criminal Application No.2633 of 2008 referred to the

¶50

: 8 :

¶51

decision of the Apex Court in the case of Bipin
Shantilal Panchal Vs. State of Gujarat and another
(2001 Criminal Law Journal 1254) and submitted that what
is laid down by the Apex Court therein is only a
guideline. He submitted that the directions, if any,
issued by the Apex Court are confined to an objection
regarding admissibility of any material or any item of
oral evidence and the directions do not relate to the
procedure to be followed as regards marking the
documents as exhibits. He submitted that even assuming
that the Apex Court has laid down the procedure by the
said decision, the Courts in Maharashtra are bound by
the rules contained in Criminal Manual issued by this
Court and therefore the Courts are bound by paragraphs
33 to 35 of Chapter VI of the Criminal Manual. He
invited my attention to another decision of the Apex
Court in the case of R.V.E.Venkatachala Gounder Vs.
Arulmigu Viswesaraswami and V.P.Temple and another (AIR
2003 Supreme Court 4548). He submitted that the
observations in the judgment of the Apex Court in the
case of Bipin Panchal (supra) are only in the nature of
guidelines and the law as regards the admissibility and
proof of documents has been laid down by the Apex Court
in the said decision in the case of R.V.E. Venkatachala
(supra). He also placed reliance on a decision of the

¶52

: 9 :

¶53

learned single Judge of this Court in the case of
M/s.Sanjay Cotton Company Vs. M/s Omprakash Shiopraksh
and another (AIR 1973 Bombay 40).

¶54

9.The learned counselappearing for the

¶55

respondents in Criminal Writ Petition Nos.1170 of 2008,
1171 of 2008 and 1172 of 2008 submitted that in so far
as interpretation of section 145(2) of the said Act is
concerned, the law laid down by this Court is very clear
and the said interpretation put by this Court is
binding. He invited my attention to a decision of the
learned single Judge of this Court in the case of
Peacock Industries Ltd and another Vs. M/s.Budhrani
Finance Ltd and another (2006 ALL MR (Cri.) 2233) and
submitted that this Court has held that after affidavit
in lieu of examination-in-chief is filed, procedure as
laid down in the case of Bipin Panchal (supra) has to be
followed. Reliance is also placed on a decision of
another learned single Judge of this Court in the case
of Peacock Industries Ltd and another Vs. Wipro Finance
Ltd and another in which this Court reiterated that the
learned Magistrate has to follow procedure laid down in
the case of Bipin Panchal (supra) so that there is no
prejudice to any party. He invited my attention to what
is held by the Apex Court in the case of Bipin Panchal

¶56

: 10 :

¶57

(supra) and submitted that the guidelines therein will
have to be followed by all Courts. Similar submissions
have been made by the counsel appearing for the original
complainants in the other petitions. It was pointed out
that atleast two single judges of this Court have held
that the courts dealing with complaints under section
138 of the Negotiable Instruments Act, 1881 will have to
follow the procedure laid down by the Apex Court in the
case of Bipin Panchal (supra).

¶58

10.I have carefully considered the submissions. In
so far as this Court is concerned, the issue of the
interpretation of sub section 2 of section 145 of the
said Act of 1881 is well settled. Paragraph 38 of the
decision of Division Bench of this Court in the case of
KSL Industries Ltd (supra) reads thus:

¶59

"38.Sub-section (1) of section 145 gives

¶60

complete freedom to the complainant either to
give his evidence by way of affidavit or by way
of oral evidence. If this is made on affidavit,
the same has to be accepted and such affidavit
is required to be kept on record by the Court.
The second part of sub-section (1) provides that

¶61

the complainant may give his evidence on

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: 11 :

¶63

affidavit and may, subject to all just
exceptions, be read in evidence in any enquiry,
trial or other proceeding. Thus, it is clear
that once the evidence of the complainant is
given on affidavit, it may be read in evidence
in any enquiry, trial or other proceeding, and
it may be subject to all just exceptions."

¶64

11.There is a further decision of this Court in the
case of Indo International Ltd and another Vs. State of
Maharashtra and another (2005 (2) Bombay Cases Reporter
(Cri.) 729). In paragraph 11 of the said decision, this
Court has summarised the law laid down by the Division
Bench in the case of KSL Industries (supra). The
relevant part of paragraph 11 reads thus:

¶65

" ..... Thus, the law laid down by the Division
Bench in the decision of KSL Industries can be
summarised as under:

¶66

(a)The Court dealingwith a

¶67

complaint under section 138 of the said
Act of 1881 has an option to take
evidence of the witnesses on the side of
the prosecution as well as evidence of

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: 12 :

¶69

the accused and the defence witnesses,
if any, on affidavit.

¶70

(b)If the evidence of a witness is
taken on affidavit, after an application
is made by the other party under sub
section (2) of section 145, it is not
necessary to again record
examination-in-chief of the witness
whose affidavit of examination-in-chief
is already filed.

¶71

(c)If an affidavit is filed under
sub section (1) of section 145 and an
application is made under sub section
(2) of section 145 by the other party,
the witnesses must be made available for
cross examination by the rival party.

¶72

In my view, the decision of the Division Bench clearly
and unambiguously lays down the aforesaid propositions
of law and the Division Bench has clearly answered the
issue which was referred to it by the learned single
Judge of this Court."

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: 13 :

¶74

12.Therefore, so far as this Court is concerned,
the view is settled. However, I am informed that now
the Apex Court is seized of matters involving the said
issue and therefore if any modification is made by the
Apex Court in the view taken by this Court naturally the
learned Magistrates will have to abide by the law laid
down by the Apex Court. It was tried to be submitted
that the decision of this Court in the case of Peacock
Industries Ltd (supra) which has taken the similar view
based on the case of KSL Industries (supra) has been
stayed by the Apex Court. However, the law on this
aspect is very clear. In the case of Pramod K. Shah
Vs. Commissioner of Custom Export Promotion and another
[2007 All MR (Cri) 1335] this Court has held that even
if a decision of this Court is stayed by the Apex Court,
unless the decision of this Court is set aside by the
Apex Court, the Courts sub-ordinate to this Court are
bound by the same. The said decision of this Court
follows the decision of the Apex Court in the case of
M/s.Shree Chamundi Mopeds Ltd Vs. Church of South
Indian Trust Association, Madras (AIR 1992 Supreme Court
1434).

¶75

13.That takes me to the main issue which is
canvassed in these petitions regarding procedure to be

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: 14 :

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followed regarding marking the documents as exhibits. I
am dealing with a case where the parties lead evidence
by filing affidavits. Whenever, an affidavit in lieu of
examination in chief is filed, the witness has to enter
the witness box and formally depose to the contents of
the affidavit and only thereafter an affidavit can be
read as examination in chief [See Shelatkar Construction
Pvt Ltd. Vs. Creative Enterprises {2008 All MR (Cri)
475}]. After the said formal examination in chief is
recorded, the stage contemplated by section 294 of the
said Code of 1973 will come in the picture. The
documents are required to be tendered alongwith a list
and the rival party is called upon to admit or deny
genuineness of such documents. As per sub section 3 of
section 294 where the genuineness of any document is not
disputed, such document may be read in evidence in the
trial without proof of the signature of the person by
whom it purports to be signed. Thus, when genuineness
of the document produced is not disputed after being
called upon as required by sub-ection 1 of section 294,
the said document can be treated as proved and
examination of a witness for proving the document is not
required. In this behalf, it will be necessary to refer
to a decision of Full Bench of this Court in the case of
Shaikh Farid Hussainsab Vs. State of Maharashtra (1981

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: 15 :

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Maharashtra Law Journal 345). Paragraph 7 of the said
judgment reads thus:

¶80

"7.Section 294 of the Code is introduced to
dispense with this avoidable waste of time and
facilitate removal of such obstruction in the
speedy trial. The accused is now enabled to
waive the said right and save the time. This is
a new provision having no corresponding
provision in the repealed Code of Criminal
Procedure. It requires the prosecutor or the
accused, as the case may be, to admit or deny
the genuineness of the documents sought to be
relied against him at the outset in writing. On
his admitting or indicating no dispute as to
genuineness, the Court is authorised to dispense
with its formal proof thereof. Infact after
indication of no dispute as to the genuineness,
proof of documents is reduced to a sheer empty
formality. The section is obviously aimed at
undoing the judicial view by legislative
process." (Emphasis supplied)

¶81

14.The issue before the Full Bench was answered in
paragraph 18 which reads thus:

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"18.We accordingly hold that sub section (3)
of section 294 of the Code covers post-mortem
notes and every other document of which
genuineness is not disputed. Thus such

¶84

documents can be read in evidence as genuine
without the formal proof. In our view, Ganpat
Raoji’s case is not correctly decided."
(Emphasis added)

¶85

Therefore, the document which is admitted under sub
section 3 of section 294 of the said Code of 1973 can be
read in evidence as genuine without the formal proof of
the said document. Therefore, after affidavit in lieu
of examination in chief is filed and formal evidence of
the witness is recorded, the exercise provided by
section 294 of the said Code of 1973 will have to be
completed by the learned Magistrate.

¶86

15.The real issue arises when a dispute is raised
regarding the proof of a document or admissibility of a
document in evidence which is tendered alongwith a list
of documents or alongwith an affidavit in lieu of
examination-in-chief. My attention was invited to the
decision of the Apex Court in the case of Bipin Panchal

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: 17 :

¶88

(supra). Paragraphs 12 to 15 of the said decision read
thus:

¶89

"12.It is an archaic practice that during
the evidence collecting stage, whenever any
objection is raised regarding admissibility of
any material in evidence the Court does not
proceed further without passing order on such
objection. But the fall out of the above
practice is this: Suppose the trial Court, in a
case, upholds a particular objection and
excludes the material from being admitted in
evidence and then proceeds with the trial and
disposes of the case finally. If the appellate
or revisional Court, when the same question is
re-canvassed, could take a different view on the
admissibility of that material in such cases the
appellate Court would be deprived of the benefit
of that evidence, because that was not put on
record by the trial Court. In such a situation
the higher Court may have to send the case back
to the trial Court for recording that evidence
and then to dispose of the case afresh. Why
should the trial prolong like that unnecessarily
on account of practices created by ourselves.

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: 18 :

¶91

Such practices, when realised through the course
of long period to be hindrances which impede
steady and swift progress of trial proceedings,
must be recast or re-mouled to give way for
better substitutes which would help acceleration
of trial proceedings.

¶92

13.When so recast, the practice which can
be a better substitute is this: Whenever an
objection is raised during evidence taking stage
regarding the admissibility of any material or
item of oral evidence the trial Court can make a
note of such objection and mark the objected
document tentatively as an exhibit in the case
(or record the objected part of the oral
evidence) subject to such objections to be
decided at the last stage in the final judgment.
If the Court finds at the final stage that the
objection so raised is sustainable the Judge or
Magistrate can keep such evidence excluded from
consideration. In our view there is no
illegality in adopting such a course. However,
we make it clear that if the objection relates
to deficiency of stamp duty of a document the
Court has to decide the objection before

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: 19 :

¶94

proceeding further. For all other objections
the procedure suggested above can be followed.

¶95

14.The above procedure, if followed, will
have two advantages. First is that the time in
the trial Court, during evidence taking stage,
would not be wasted on account of raising such
objections and the Court can continue to examine
the witnesses. The witnesses need not wait for
long hours, if not days. Second is that the
superior Court, when the same objection is
re-canvassed and reconsidered in appeal or
revision against the final judgment of the trial
Court, can determine the correctness of the view
taken by the trial Court regarding that
objection, without bothering to remit the case
to the trial Court again for fresh disposal. We
may also point out that this measure would not
cause any prejudice to the parties to the
litigation and would not add to their misery or
expenses.

¶96

15.We, therefore, make the above as a
procedure to be followed by the trial Courts
whenever an objection is raised regarding the

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: 20 :

¶98

admissibility of any material or any item of
oral evidence." (Emphasis supplied)

¶99

16.My attention was also invited to a subsequent
decision of the Apex Court in the case of
R.V.E.Venkatachala (supra). It must be stated here that
the said decision is rendered in a Special Leave
Petition arising out of a civil suit. However, the said
decision will be relevant in so far as proof or
admissibility of documents in evidence is concerned.
Law of evidence as regards proof and admissibility of
documents is the same which is applicable to both civil
and criminal trials. It will be necessary to refer to
the relevant part of the said judgment. In paragraph 20
the Apex Court has held as under:

¶100

"20.Thelearnedcounselforthe

¶101

defendant-respondent has relied on the Roman
Catholic Mission v. State of Madras and
another, AIR 1966 SC 1457 in support of his
submission that a document not admissible in
evidence, though brought on record, has to be
excluded from consideration. We do not have any
dispute with the proposition of law so laid down

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: 21 :

¶103

in the abovesaid case. However, the present one
is a case which calls for the correct position
of law being made precise. Ordinarily an
objection to the admissibility of evidence
should be taken when it is tendered and not
subsequently. The objections as to
admissibility of documents in evidence may be
classified into two classes :- (i) an objection
that the document which is sought to be proved
is itself inadmissible in evidence; and (ii)
where the objection does not dispute the
admissibility of the document in evidence but is
directed towards the mode of proof alleging the
same to be irregular or insufficient. In the
first case, merely because a document has been
marked as ‘an exhibit’, an objection as to its
admissibility is not excluded and is available
to be raised even at later stage or even in
appeal or revision. In the latter case, the
objection should be taken before the evidence is
tendered and once the document has been admitted
in evidence and marked as an exhibit, the
objection that it should not have been admitted
in evidence or that the mode adopted for proving
the document is irregular cannot be allowed to

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: 22 :

¶105

be raised at any stage subsequent to the marking
of the document as an exhibit. The later
proposition is a rule of fair play. The crucial
test is whether an objection, if taken at the
appropriate point of time would have enabled the
party tendering the evidence to cure the defect
and resort to such mode of proof as would be
regular. The omission to object becomes fatal
because by his failure the party entitled to
object allows the party tendering the evidence
to act on an assumption that the opposite party
is not serious about the mode of proof. On the
other hand, a prompt objection does not
prejudice the party tendering the evidence, for
two reasons: firstly, it enables the court to
apply its mind and pronounce its decision on the
question of admissibility then and there: and
secondly, in the event of finding of the Court
on the mode of proof sought to be adopted going
against the party tendering the evidence, the
opportunity of seeking indulgence of the Court
for permitting a regular mode or method of proof
and thereby removing the objection raised by the
opposite party, is available to the party
leading the evidence. Such practice and

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: 23 :

¶107

procedure is fair to both the parties. Out of
the two types of objections, referred to
hereinabove, in the later case failure to raise
a prompt and timely objection amounts to waiver
of the necessity for insisting on formal proof
of a document, the document itself which is
sought to be proved being admissible in
evidence. In the first case, acquiescence would
be no bar to raising the objection in superior
Court." (Emphasis supplied)

¶108

17.Thus, the Apex Court has categorised the
objections raised to the documents into two classes.
One is where admissibility of document in evidence is
not in dispute, but it is contended that the document is
not proved or the proof in support of the document is
insufficient. The second category of objection is an
objection that the document which is sought to be proved
is itself inadmissible in evidence. The Apex Court held
that in so far as in first category where dispute is of
proof of documents is concerned, the objection should be
taken at the earliest and the objection that the mode
adopted for proving the document is irregular or
insufficient cannot be allowed to be raised at any stage

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: 24 :

¶110

subsequent to the marking of document as exhibit. In so
far as the said category of objection that a document is
not properly proved is concerned, the Apex Court
observed that if the said objection is raised at the
outset, it enables the Court to apply its mind and
pronounce its decision on the question then and there.
In the event of finding of the Court on issue of proof
of document going against the party tendering the
document in evidence, an opportunity of seeking
indulgence of the Court for leading further evidence to
prove the document by adopting proper mode is available.
In so far as the second category of objection is
concerned, the Apex Court held that even if a document
is marked as exhibit, an objection simplicitor as to its
admissibility is not excluded and is available to be
raised at a latter stage.

¶111

18.It must be noted here that there is one more
category of objection which relates to insufficiency of
stamp on the document sought to be tendered. On this
aspect there is a decision of the Apex Court of its
constitution bench consisting of five Hon’ble Judges in
the case of Javer Chand and others Vs. Pukhraj Surana
(AIR 1961 Supreme Court 1655). The Apex Court
considered the provisions of section 36 of the Indian

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: 25 :

¶113

Stamp Act and relevant provisions of the Evidence Act.
The Apex Court held as under:

¶114

"..... Where a question as to the admissibility
of a document is raised on the ground that it
has not been stamped, or has not been properly
stamped it has to be decided then and there when
the document is tendered in evidence. Once the
Court rightly or wrongly, decides to admit the
document in evidence, so far as the parties are
concerned the matter is closed. Section 35 is
in the nature of a penal provision and has
far-reaching effects. Parties to a litigation,
where such a controversy is raised, have to be
circumspect and the party challenging the
admissibility of the document has to be alert to
see that the document is not admitted in
evidence by the Court. The Court has to
judicially determine the matter as soon as the
document is tendered in evidence and before it

¶115

is marked as an exhibit, in the case. The
record in this case discloses the fact that the
hundis were marked as Exhibits P.1 and P.2 and
bore the endorsement ‘admitted in evidence’
under the signature of the Court. It is not,

¶116

: 26 :

¶117

therefore, one of those cases where a document
has been inadvertently admitted, without the
Court applying its mind to the question of its
admissibility. Once a document has been marked
as an exhibit in the case and the trial has
proceeded all along on the footing that the
document was an exhibit in the case and has been
used by the parties in examination and cross
examination of their witnesses, S.36 of the
Stamp Act comes into consideration. Once a
document has been admitted in evidence, as
aforesaid, it is not open either to the Trial
Court itself or to a Court of Appeal or revision
to go behind that order. ....."

¶118

19.The position under the Bombay Stamp Act, 1958 is
no different in view of section 35 thereof. Therefore,
the Apex Court has held that where a question as to
admissibility of document is raised on the ground that
it has not been stamped or has not been properly
stamped, the party challenging the admissibility of the
document has to raise the objection at the earliest and
the Court has to judicially determine the matter as soon
as the document is tendered in evidence and before it is

¶119

: 27 :

¶120

marked as an exhibit in the case.

¶121

20.It will be necessary to refer to criminal manual
issued by this Court. The preface to criminal manual by
the learned Registrar of this Court records that
criminal manual published in the year 1960 was revised
taking into consideration the fact that the said Code of
1973 came into force. The preface specifically records
that the revised draft of the criminal manual was
approved by the Hon’ble the Governor in exercise of
power under clause 3 of Article 227 of the Constitution
of India. The gazette notification dated 20th June 1982
specially records that in exercise of powers conferred
by Article 227 of the Constitution of India, the Hon’ble
the Chief Justice has been pleased to appoint 16th
August 1982 as the date on which the revised criminal
manual came into force. Thus, it is apparent that the
criminal manual and the rules contained therein have
been issued in exercise of powers conferred by Article
227 (2) (b) of the Constitution of India. The said
provision empowers the High Court to make and issue
general rules regulating the practice and proceeding of
Courts sub-ordinate to this Court. In this context a
reference will have to be made to Chapter VI and in
particular paragraphs 33 and 34 thereof which read thus:

¶122

: 28 :

¶123

"33.(1)When the documents are sought to
be produced in the courts, the courts concerned
should insist upon the list of such documents
and the production thereof being made in
chronological or some other methodical order.

¶124

(2)Similarly, the courts concerned should
determine as to whether documents sought to be
produced in the court are relevant and
admissible or not, at the time when the
documents are sought to be produced, and not at
the time of the delivery of judgment.

¶125

34.When a witness prove any document, the
correct exhibit number should immediately be
noted (i) on the document itself and (ii) in the
body of deposition against the description of
the documents so that the appellate or
revisional court may not be required to waste
its time in tracing the documents. Similarly,
when another witness who has already been
examined is referred to by any witness in its
deposition, the exhibit number of the deposition
of such other witness should invariably be noted

¶126

: 29 :

¶127

in the deposition immediately after the
reference to the witness."

¶128

Clause 2 of paragraph 33 thus provides that when
documents are sought to be produced in Court, the issue
of admissibility has to be decided and it cannot be
postponed till the delivery of judgment. Rule 34
mandates that when a witness has proved any document,
the document should be immediately marked as exhibit.
Rule 34 further provides that the exhibit number shall
be incorporated on the document itself and also in
the body of deposition.

¶129

21.On this aspect, it will be necessary to refer to
another decision of the Apex Court in the case of Sait
Tarajee Khimchand and others Vs. Yelamarti Satyam Alias
Satteyya and others [(1972) 4 Supreme Court Cases 562].
The Apex Court in the said decision reiterated well
established principle that the mere marking of an
exhibit does not dispense with the proof of the
documents. The said principle has been reiterated by
the Apex Court in a recent decision in the case of
Narbada Devi Gupta Vs. Birendra Kumar Jaiswal and
another [(2003) 8 Supreme Court Cases 745]. Paragraph

¶130

: 30 :

¶131

16 of the said decision reads thus:

¶132

"16.Reliance is heavily placed on behalf of
the appellant on the case of Ramji Dayawala and
Sons (P) Ltd. The legal position is not in
dispute that mere production and marking of a
document as exhibit by the court cannot be held
to be a due proof of its contents. Its
execution has to be proved by admissible
evidence, that is, by the "evidence of those
persons who can vouchsafe for the truth of the
facts in issue". The situation is, however,
different where the documents are produced, they
are admitted by the opposite party, signatures
on them are also admitted and they are marked
thereafter as exhibits by the court. We find no
force in the argument advanced on behalf of the
appellant that as the mark of exhibits has been
put on the back portions of the rent receipts
near the place where the admitted signatures of
the plaintiff appear, the rent receipts as a
whole cannot be treated to have been exhibited
as admitted documents." (Emphasis added)

¶133

: 31 :

¶134

On this aspect, it will be necessary to refer to a
decision of this Court in the case of Bama Kathari Patil
Vs. Rohidas Arjun Madhavi and another (2004 (2)
Maharashtra Law Journal 752). The learned Judge was
dealing with a writ petition arising out of a civil suit
but what is laid down by this Court will be very
relevant even in a criminal trial. The learned Judge
held that a document is required to be proved in
accordance with the provisions of the Evidence Act and
merely for administrative convenience of locating or
identifying the document, it is given exhibit number by
the Court. It is held that exhibiting a document has
nothing to do with its proof though as matter of
convenience only the proved documents are exhibited.

¶135

22.The submissions have been made by pointing out a
consistent practice followed in the Courts in
Maharashtra that when a document is referred to during
the course of cross-examination of a witness, the said
document is marked as an exhibit though it is not
earlier marked as an exhibit. This is nothing but a
practice of convenience. The practice of the marking a
document referred to in the cross-examination is only
the purposes of locating and identifying the said

¶136

: 32 :

¶137

document. Marking a document as exhibit by such a
process based on consistent practice followed in the
Court of law does not dispense with the requirement of
proof of the execution, contents and genuineness of the
document in the accordance with law of evidence unless
the witness concerned admits the execution and
genuineness of the document. Therefore, marking a
document in cross-examination in this manner will not
dispense with the proof of the document in accordance
with law of evidence.

¶138

23.As set out earlier, the Apex Court has made
three categories of objections raised by rival party
when documents are produced in Court of law. The first
objection is regarding insufficiency of the proof and/or
irregular mode adopted for proving the document. This
objection is that the document has not been proved in
accordance with law. The second objection is that the
document is not properly stamped as required by the
Stamp Act or Bombay Stamp Act as the case may be. The
third objection is that the document sought to be proved
is otherwise inadmissible in evidence. In the case of
R.V.E.Venkatachala (supra) the Apex Court has made
specific distinction between the first objection
regarding insufficiency of proof or irregular or

¶139

: 33 :

¶140

incorrect mode of proof and the other objection
regarding inadmissibility in evidence. The Apex Court
observed that is so far as objection regarding proof of
document is concerned, the same has to be decided then
and there. However, even after marking a document as
exhibit, an objection to its admissibility can be raised
at any stage of the proceedings. The decision on this
objection can be postponed till final disposal of the
case. As pointed out earlier, as far as objection
regarding insufficiency of stamp is concerned, the
constitution bench of the Apex Court has already held
that such objection has to be raised before a document
is marked as exhibit and the same has to be decided
immediately.

¶141

24.At this stage, it will be necessary to go back
to the decision of the apex Court in the case of Bipin
Panchal (supra). In paragraph 12 of the said judgment
the Apex Court has referred to objection regarding
admissibility of any material in evidence. Paragraph 13
again refers to the objection regarding admissibility of
any material or item of oral evidence. In paragraph 14
the Apex Court has noted a contingency where the
decision taken on objection regarding admissibility may
amount to wasting the time of the Court and delaying the

¶142

: 34 :

¶143

further recording of evidence. An argument was advanced
that in the case of Peacock Industries (supra) and in
particular in paragraph 41 thereof this Court has
accepted that the procedure laid down in the case of
Bipin Panchal (supra) has to be followed in trials under
section 138 of the said Act. My attention was also
invited to a decision of another learned single Judge of
this Court which is rendered in the case of M/s.Peacock
Industries and another Vs. Wipro Finance Ltd and
another dated 04th October 2005 wherein this Court held
that the course adopted by the Apex Court in the case of
Bipin Panchal (supra) is required to be followed. After
referring to the case of Bipin Panchal (supra), in
paragraph 10 the learned Judge has observed thus:

¶144

"10.It is clarified that if any objection is
raised during the evidence taking stage
regarding admissibility of any material or item
or oral evidence, the trial Court to make a note
of such objection and mark the objected document
or portion tentatively as an exhibit in the case
subject to such objections to be decided at the
last stage during the final judgment."

¶145

: 35 :

¶146

25.On plain reading of the decision of the Apex
Court in the case of Bipin Panchal (supra), it is
apparent that the same does not deal with an objection
as regards proof of a document or insufficiency of proof
or incorrect mode of proof. The said judgment deals
with objection regarding the admissibility of the
document in evidence which is a separate category of
objection as distinguished from an objection regarding
proof as laid down by the Apex Court in the case of
R.V.E.Venkatachala (supra). It is true that the

¶147

procedure laid down by the Apex Court in the case of
Bipin Panchal (supra) will have to be followed by the
Courts sub-ordinate to this Court. However, the said
decision of Apex Court is applicable only to one
category of objection regarding admissibility of the
document in evidence and that decision has no

¶148

application when an objection is raised to the proof or
to irregular/insufficient mode of proof of a document.
As far as objection regarding inadequacy of stamp is
concerned that is already settled by the larger bench of

¶149

the Apex Court in the case of Javer Chand. Infact, in
the decision of this Court in the case of Peacock
Industries (supra), the judgment of the Apex Court in
the case of Bipin Panchal (supra) is not read and
interpreted to mean that it also applies to the

¶150

: 36 :

¶151

objection regarding proof of documents. Therefore,
after filing of affidavit of examination-in-chief and
after recording formal examination-in-chief of the
concerned witness, an objection raised regarding proof
of documents or insufficiency of proof or of adopting
incorrect mode of proof has to be dealt with immediately
by the learned Magistrate before proceeding with the
recording of cross-examination. Only in a case where
the said adjudication involves a decision on complicated
questions which require a very detailed adjudication, it
can be postponed till the final hearing. In a case
where a document is proved in accordance with Evidence
Act but an objection is raised to the admissibility of
the said document, as held by the Apex Court in the case
of Bipin Panchal (supra), such document can be
tentatively marked as an exhibit as objection to the
admissibility can be decided at the stage of final
hearing as contemplated in the decision of the case of
Bipin Panchal (supra). As pointed out earlier, if
objection regarding proof of a document is decided, the
complainant or accused who has produced the said
documents is put to the notice that the document is not
held as proved so that he can seek indulgence from the

¶152

Court of leading further evidence. This avoids
possibility of parties applying at the stage of judgment

¶153

: 37 :

¶154

for recalling the witness or for leading further
evidence for proving a document.

¶155

26.I have already held that merely because a
document referred to in cross-examination is marked as
an exhibit, the same does not dispense with the proof of
document in accordance with law of evidence.

¶156

27.After summarising the law on the aspects stated
above, now it will be necessary to deal with the merits
of the petitions which are before the Court. Criminal
Writ Petition Nos.331 of 2008, 1170 of 2008, 1171 of
2008 and 1172 of 2008 are concerned, the prayer for
directing the complainant to step into witness box based
on sub section 2 of section 145 cannot be entertained in
view of the decision in K.S.L. Industries (supra).

¶157

28.Now turning to the Criminal Application No.2633
of 2008, it will be necessary to refer to the impugned
order. As pointed out earlier, the challenge is to the
order dated 02nd August 2008 passed by the learned
Magistrate. Before passing the said order, the learned
Judge has passed an order dated 16th July 2008 marking
the certain documents as exhibits. While doing so the
learned Judge has observed that so far as proof of the

¶158

: 38 :

¶159

contents of the documents is concerned, it will be
decided on totality of the evidence leaving open the
question of evidentiary value of the said documents.
While passing order dated 02nd August 2008, the learned
Judge has observed as under:

¶160

".... As the question of admissibility of those
documents was raised at that time itself, the
witness was taken into witness box, the oath was
administered to him and it was already decided
that the documents were admissible in evidence
by virtue of sections 77 and 79 of the Evidence
Act. Each and every document was referred by
the witness by standing in the witness box and
each and every document came to be exhibited
there. Then the examination in chief was closed
and the case is for cross examination. So the
provisions of para 33 of Chapter 6 of the
Criminal Manual are complied with. So far as
the evidentiary value of the document is
concerned, the same has to be decided in the
judgment only.

¶161

.Para No.33 of the Chapter 6 of the
Criminal Manual never contemplates to decide the

¶162

: 39 :

¶163

evidentiary value of the document at the time of
filing them in the Court, otherwise the Court
will have to give judgment every time on each of
every document whenever document is sought to be
filed on record."

¶164

In this order the learned Judge has observed that
compliance has been made with provisions of paragraph 33
of Chapter VI while marking the documents. The learned
Judge has observed that in so far as the evidentiary
value of the document is concerned, the same will be
decided at the time of the judgment. In the first order
referred to above, the learned Judge has held that even
the issue regarding proof of contents of the documents
will have to be decided on totality of evidence. In
order dated 16th July 2008, the learned Judge has
specifically recorded that the learned counsel for the
petitioner does not object to admissibility of the
documents except document at serial no.1 which is the
affidavit in lieu of examination in chief. The perusal
of the order dated 16th July 2008 shows that there is no
specific objection raised regarding the proof of the
documents. The order dated 16th July 2008 has been
recorded during the course of recording formal
examination-in-chief of the complainant. As far as

¶165

: 40 :

¶166

objection to the admissibility of affidavit of
examination-in-chief is concerned, as stated above, the
interpretation made by this Court of section 145(2) of
the said Act of 1881 stands and therefore objection to
admissibility of the affidavit of examination in chief
cannot be sustained. In the circumstances, no
interference is called for with the impugned orders
subject to what is laid down in this judgment.

¶167

29.In Criminal Writ Petition no.738 of 2008, the
learned Judge has tentatively marked all the documents
produced by the complainant as exhibits. As held
earlier, before proceeding to record the
cross-examination, the learned Judge will have to deal
with the objection as regards proof of the documents
leaving the objection, if any, as regards admissibility
open.

¶168

30.Hence, I pass the following order:

¶169

.Subject to what is observed in this
judgment, no case for interference is made out
and the petitions are disposed of.

¶170

: 41 :

¶171

(A.S. Oka, J)

Ashutosh Mukhyopadyay v. the State of Maharashtra and Anr.

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Ashutosh Mukhyopadyay v. the State of Maharashtra and Anr.

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