Dismissed

Rajesh Chandmal Varma v. Mahalaxmi Silver

Bombay HC19 Sept 2013APPLN/4663/2013

Case brief

AI extract

What is this about?

The High Court of Bombay Bench at Aurangabad addressed three Criminal Applications where an accused in cheque dishonour cases sought to stop documents from being marked as exhibits. The court rejected the applications, clarifying that merely marking a document as an exhibit does not constitute proof of its execution or truth, and no further interference is warranted.

What did the court decide?

All three applications were rejected and dismissed as there is no need for the High Court to interfere.

Rajesh Chandmal Varma Vs Mahalaxmi Silver — Banking and Recovery | Bombay HC (2013)

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Cri.Appln4663.13.odt

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO. 4663 OF 2013

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WITH

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CRIMINAL APPLICATION NO. 4666 OF 2013 WITH

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CRIMINAL APPLICATION NO. 4669 OF 2013

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Rajesh Chandmal Varma

.. APPLICANT

VERSUS

Mahalaxmi Silver

.. RESPONDENT

Advocate for Applicant : Mr. B.R. Warma

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CORAM : A.M. THIPSAY, J. Dated: September 19, 2013

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ORAL ORDER :-

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All these applications can be conveniently disposed of by this common order as the parties are the same and the issues that have been raised are also the same.

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The applicant is an accused in three different cases filed against him by the respondent herein, in respect of offences punishable under Section 138 of the Negotiable Instruments Act. The respondent has filed the affidavit of evidence in all the three matters. The respondent had annexed copies of certain documents alongwith the complaint in these cases. The applicant

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Cri.Appln4663.13.odt

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apprehended, in view of the contents of the affidavit of evidence filed by the respondent, that certain documents filed by the respondent alongwith the complaint would be marked as `exhibits’ by the learned Magistrate. Apprehending so, he made applications before the Magistrate, in all the three cases, praying that one of the documents submitted alongwith the complaint should not be exhibited and should not be read in the evidence. He also submitted that an inquiry be ordered to be made as to the genuineness of the said documents i.e. the bills. The respondent, by filing a reply before the Magistrate, contended that the said applications had no merit, and that they be dismissed with heavy costs. The Magistrate, by his order dated 19.08.2013, passed in all the matters, rejected the applications made by the applicant i.e. the original accused.

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Being aggrieved thereby, the applicant has approached this Court invoking its inherent powers.

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I have heard Mr. B.R. Warma, the learned counsel for the applicant. I have gone through the applications and annexures thereto. I have also gone through the orders passed by the learned Magistrate, which are identical.

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In the concluding part of his order, the Magistrate observed as under :-

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3 Cri.Appln4663.13.odt

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“It is settled position of law that marking
exhibit number to a document is no way
related to the proof of document. Hence, I
do not find any force in the contention of
defence and discard the same.” (Para No.8)

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It is therefore clear that the Magistrate has not formed any opinion as to the admissibility, or even the relevancy, of the documents in question. It is also clear that the Magistrate has not yet considered as to whether the document is primary evidence, or secondary evidence, and if at all, it is secondary evidence, whether the conditions in which the secondary evidence could be received, are made out. All these aspects have been kept open by the Magistrate.

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The Magistrate’s view that merely marking of a document as an exhibit, would not amount to proof of the contents of the documents - and certainly not of the truth of the contents - is correct. As a matter of fact, the Evidence Act does not speak of exhibiting any document; and exhibiting a document is a matter of convenience and practice. The proof of the documents i.e. the execution thereof and of the truth of contents thereof, - which again are distinct things, - are governed by the provisions of Indian Evidence Act or any other law, as may be applicable to any particular document.

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It would be open for the applicant to raise the

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Cri.Appln4663.13.odt

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question of the relevancy, admissibility etc., of the documents in question, inspite of and irrespective of the fact that they are likely to be exhibited. The order passed by the Magistrate itself indicates his view that marking a document as an exhibit, is totally different from gathering or accepting the proof of execution of the document.

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As such, I do not find any substance in the apprehension expressed by the applicant that the documents in question would be treated as proved’, as a result of marking them as exhibits’, and that, this would cause serious prejudice to the applicant.

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Consequently no interference is called for. The applications are rejected.

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( A.M. THIPSAY, J. )

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sga/-

Rajesh Chandmal Varma v. Mahalaxmi Silver

Case brief

What is this about?

What did the court decide?

Rajesh Chandmal Varma v. Mahalaxmi Silver

Case brief

What is this about?

What did the court decide?

What the court decided

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