Allowed

Smt. Anjana a Shanthaveer v. Sri. Babu Rao Chunchansur

Karnataka HC5 Nov 2020CRL.RP/271/2019

Case brief

AI extract

What is this about?

High Court of Karnataka allowed a criminal revision petition, setting aside a trial court order that rejected certified bank statements already admitted in evidence. The court held that once a document is admitted, the matter is closed, and its evidentiary value can only be challenged at the final judgment stage.

What did the court decide?

The impugned order dated 11.02.2019 rejecting the bank statement entries was set aside. The petition was allowed to the extent that the document could not be rejected post-admission.

Smt. Anjana a Shanthaveer Vs Sri. Babu Rao… — Civil Procedure and Limitation | Karnataka HC (2020)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 5^TH DAY OF NOVEMBER, 2020

¶3

BEFORE

¶4

THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA

¶5

CRL.R.P. NO. 271/2019

¶6

BETWEEN

¶7

SMT. ANJANA A SHANTHAVEER D/O SRI. ANANDA KUMAR, AGED ABOUT 35 YEARS, SINCE DEAD REP.BY LRS VIDE ORDER DATED 06.06.2020.

¶8

SMT. ARCHANA

¶9

W/O SRI. ANANDA KUMAR, AGED ABOUT 60 YEARS,

¶10

SRI. SUMANTH A S/O LATE A. SHANTHAVEER, AGED ABOUT 18 YEARS,

¶11

PETITIONERS 1 & 2 ARE R/AT NO.31, 1^ST FLOOR, ADARSHA NAGAR, 3^RD CROSS, NAGARABHAVI, BENGALURU-560072.

¶12

... PETITIONERS

¶13

(BY SRI.G.S.VENKAT SUBBA RAO, ADVOCATE )

¶14

AND

¶15

SRI.BABU RAO CHUNCHANSUR S/O LATE BASAVANNAPPA CHUNCHANASUR, AGED ABOUT 64 YEARS, PRESENTLY RESIDING AT NO.125, SHANTHI NAGAR,

¶16

¶17

MSK MILL ROAD, GULBARGA-585105. ... RESPONDENT

¶18

(BY SRI C.V.NAGESH, SR.ADV A/W SRI K.RAGHAVENDRA, ADV.)

¶19

THIS CRIMINAL REVISION PETITION IS FILED U/S. 397 READ WITH 401 OF CR.P.C. PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 11.02.2019 WITH REGARD TO ADMISSIBILITY OF THE DOCUMENTS PASSED BY THE LXXXI ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU (SPL.COURT EXCLUSIVELY TO DEAL WITH CRIMINAL CASES RELATED TO ELECTED MPs AND MLAs IN THE STATE OF KARNATAKA) IN SPL.C.C.NO.185/2018 AND ETC.,

¶20

THIS CRIMINAL REVISION PETITION COMING ON FOR HEARING THROUGH VIDEO CONFERENCE/ PHYSICAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

¶21

ORDER

¶22

The short question that arises for consideration in this petition is, whether a document once admitted in evidence, could be rejected by the court on the ground of inadmissibility during the stage of the same proceedings?

¶23

The undisputed facts are that, the petitioner herein instituted a proceedings against the respondent under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘N.I. Act’). After closure of the

¶24

¶25

evidence of the complainant, the respondent/accused was examined under Section 313 of Cr.P.C. At the stage of argument, the petitioner moved an application to produce further evidence and the same was allowed. Accordingly, a witness (PW.2) was examined on behalf of the complainant. PW.2 filed his affidavit in lieu of chief examination. In the chief examination he stated that, towards part of the investment he gave a sum of Rs.8,78,49,729/- to the complainant on various dates between 02.01.2011 and 21.06.2011 and in respect of the said transaction, a Memorandum of Understanding was entered into between PW.2 and the complainant on 26.03.2011, and further he stated that the aforesaid amounts were paid through his Bank Account. Through this witness a photo copy of the Statement of Accounts was sought to be produced in evidence and the same was objected by the defence counsel and hence the certified copies thereof were tendered in evidence. Marking of these certified copies were also objected. But, the trial Court proceeded to mark the certified copies of the Bank Statement as Exs.P20 & P21 subject

¶26

¶27

to objections. Thereafter, the entries contained in these Bank Extracts namely Ex.P20 and P21 were sought to be marked. Marking of these entries were objected by the counsel for respondent/accused on the ground that the witness (PW.2) was not competent to speak about the contents of the document, as he was neither the author of the documents nor did the said documentsExs.P20 & P21 relate to PW.2. This objection was found favour by the trial Court and by the impugned order the learned Special Court ordered that PW.2 is not entitled to speak in respect of the entries found in the Bank Statements (Exs.P20 & P21) produced by the complainant. While so observing, the learned Special Court proceeded to hold that Exs.P20 and P21 are inadmissible in evidence by placing reliance on the decision of the Hon’ble Supreme Court in Bipin Shantilal Panchal Vs. State of Gujarath & Another

¶28

[ (2001) 3 SCC Page 1].

¶29

Learned counsel for the petitioner would

¶30

submit that the trial Court having admitted the document in evidence, rightly or wrongly had no

¶31

¶32

jurisdiction to decide the admissibility of the document during the course of the proceedings. Further, he would submit that, the objection having been raised only with regard to the marking of the entries through PW.2, the learned Special Judge could not have decided the admissibility of the documents, which were already admitted in evidence. In support of this submission, learned counsel for petitioner has placed reliance on the Constitution Bench decision of the Hon’ble Supreme Court reported in AIR 1961 SC 1655 (Javer Chand

¶33

and Others Vs. Pukhraj Surana) , wherein it is held that, in terms of Section 36 of the Stamp Act, once the Court rightly or wrongly decides to admit the documents in evidence so far as the parties are concerned, the matter is closed. Thus, it is the submission of the learned counsel for the petitioner that the learned Special Court has committed a serious illegality in passing the impugned order.

¶34

Further, placing reliance on Section 65(f)

¶35

and Section 79 of the Indian Evidence Act, learned counsel would submit that, the documents produced in

¶36

¶37

evidence being the certified copies issued by the Court, which are admissible as secondary evidence, in view of the presumption attached thereto, the Special Court was not justified in refusing to admit these documents. On the question of the relevancy and proof of the entries in question, learned counsel would submit that, the said issue could have been adjudicated by the Special Court only at the time of the Final Judgment as held in Bipin Shantilal Panchal ’s case (supra) and not in the course of recording evidence; thus, he prayed for setting aside the impugned order.

¶38

The learned Senior Counsel appearing for the respondent/accused however countered the above argument raising the contention that, the document sought to be produced by the complainant through PW.2 is inadmissible in evidence for the reason that, it is not the certified copy of the extracts of the Bank statement maintained by the Bank; rather the complainant obtained these documents from the Court and produced them through PW.2. These documents are the certified copies issued by the Court and not by the

¶39

¶40

Bank, and therefore the Special Court was justified in eschewing these documents from consideration. Further, he would submit that, the submission made by the counsel for the petitioners that the objection was raised only for marking of the entries is not correct. The objection was raised even with regard to the admissibility of the document and therefore, no fault could be found with the impugned order rejecting the documents produced on behalf of the complainant. Further the learned Senior Counsel pointed out that, the witness (PW.2) examined by the complainant was totally incompetent to speak about the entries contained in the document in as much as Ex.P20 did not relate to the Bank Account of PW.2, rather it pertained to the Bank account of his divorced wife. Therefore, even in that regard, the Special Court was justified in upholding the objection raised by the respondent/accused. In support of this submission, the counsel has placed reliance on the decision of the Hon’ble Supreme Court reported in AIR 2010(2) Supreme Court 444 (LIC of India and Another Vs. Ram Pal Singh Bisen), the

¶41

¶42

relevant portion at Paras-23, 24, 25 & 26, reads as under:

¶43

“23. It is also necessary to mention here that Rule 2A of Order XII of the CPC deals with the situation where notice of admission as contemplated in Order XII Rule 2 of the CPC has been served but is not denied then the same shall be deemed to have been admitted. Similarly, Rule 3A of the aforesaid Order grants power to the Court to admit any document in evidence, even if no notice has been served. The aforesaid provisions of law have been brought in the Code vide Amendment by Act No. 104 of 1976, w.e.f. 1.2.1977.

¶44

24. Records do not reveal that any such procedure was adopted either by the appellants or by the Trial Court to prove the documents filed by the appellants and mark them as Exhibits. Thus, no advantage thereof could be accrued to the appellants, even if it is assumed that said documents have been admitted by respondent and were then exhibited and marked.

¶45

25. No doubt, it is true that failure to prove the defence does not amount to an admission, nor does it reverse or discharge the burden of proof of the plaintiff but still the duty cast on the defendants has to be discharged by

¶46

¶47

adducing oral evidence, which the appellants have miserably failed to do. Appellants, even though a defaulting party, committed breach and failed to carry out a legislative imposition, then had still to convince this Court as to what was the just cause for doing the same. Thus looking to the matter from any angle, it is fully established that appellants had miserably failed to prove and establish their defence in the case.

¶48

26. We are of the firm opinion that mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. As has been mentioned herein above, despite perusal of the record, we have not been able to come to know as to under what circumstances respondent plaintiff had admitted those documents. Even otherwise, his admission of those documents cannot carry the case of the appellants any further and much to the prejudice of the respondent.”

¶49

6. Considered the rival submissions and

¶50

perused the documents.

¶51

¶52

Undisputedly the documents sought to be admitted in evidence are the certified copies issued by the Court. These documents qualify to be secondary evidence. Section 65(f) of the Indian Evidence Act provides for the circumstances in which secondary evidence relating to documents may be given of the existence, conditions, or contents of the documents. Sub-clause (f) thereof reads as under:-

¶53

“(a) to (e) xxx xxx xxx xxx xxx xxx

¶54

(f) When the original is a document of which the Certified copy is permitted by this Act or by other law in force in India to be given in evidence.

¶55

(g) xxx xxx xxx xxx xxx xxx xxx xxx”

¶56

As could be seen from the above provision, as long as the document sought to be produced is in the nature of secondary evidence, the same could be admitted in evidence, of course subject to its proof. What is secondary evidence has been described in Section 63 of the Indian Evidence Act, as under:

¶57

¶58

“ Sec. 63. Secondary evidence,-

¶59

Secondary evidence means and includes-

¶60

1) certified copies given under the provisions hereinafter contained;

¶61

2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;

¶62

3) copies made from or compared with the original;

¶63

4) counterparts of documents as against the parties who did not execute them;

¶64

5) oral accounts of the contents of a document given by some person who has himself seen it.”

¶65

It is trite law that, if the original is found inadmissible for want of proof, secondary evidence is banned. In the instant case, the document sought to be admitted in evidence is the extract of the account maintained by the Bank, which is admissible under the Bankers Book Evidence Act. Therefore, the certified copy of it is admissible in evidence, of course, subject to the proof of its contents. Apparently for this reason, having regard to the objections raised by the

¶66

¶67

counsel for the accused, the learned Special Judge appears to have marked this document subject to objections. The course adopted by the Special/trial Court is in accordance with the procedure laid down by the Hon’ble Supreme Court in Bipin Shanthilal Panchal’s case, wherein it is observed as under:

¶68

“4. 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

¶69

¶70

of practices created by ourselves. 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-moulded to give way for better substitutes which would help acceleration of trial proceedings.

¶71

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

¶72

¶73

In the above decision, the Hon’ble Supreme Court has even explained the reasons for marking of document in para-15, as under:-

¶74

“15. 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.”

¶75

In the light of the above principle, the

¶76

question now arises for consideration is, once a document is admitted in evidence, whether the trial Court could revert back the position to hold that the said document was inadmissible in evidence? This

¶77

¶78

question is no more res-integra in view of the decision of the Constitution Bench of the Hon’ble Supreme Court, wherein it is authoritatively held that, once the court rightly or wrongly decides to admit the document in evidence so far as the parties are concerned, the matter is closed. Thus, once the document having been admitted in evidence, the learned Special Court had no jurisdiction either to sit over its own judgment or to recall the order passed by it on earlier occasion, in the course of the same proceedings. In that view of the matter, the impugned order being without jurisdiction is liable to be set aside.

¶79

In so far as the entries contained in the

¶80

document, the trial Court has proceeded to appreciate the document filed by the petitioner and has recorded a finding of fact before rendering the judgment in the case. As held by the Hon’ble Supreme Court in the decision cited supra, the very document itself having been marked subject to objection, the trial Court could decide the evidentiary value thereof only at the stage of final judgment. This course would not prejudice the

¶81

¶82

respondent, as it is always open to the respondent to bring on record the circumstances that militate against the documents produced by the petitioner. As long as the document is found admissible, the trial Court was not entitled to reject the said document before adjudicating the issue at the final stage of the judgment. In that view of the matter, the impugned order, in my view, being opposed to law and the procedure contemplated in Indian Evidence Act as well as the law laid down by the Hon’ble Supreme Court in the decision referred to supra, cannot be sustained. Consequently, the petition is allowed . The impugned order dated 11.02.2019 passed by the LXXXI Additional City Civil and Sessions Judge, Bengaluru (Special Court exclusively to deal with Criminal Cases related to elected MPs and MLAs in the State of Karnataka) in Spl. C.C. No.185/2018 is set aside.

¶83

Sd/JUDGE

¶84

KGR*

Smt. Anjana a Shanthaveer v. Sri. Babu Rao Chunchansur

Case brief

What is this about?

What did the court decide?

Smt. Anjana a Shanthaveer v. Sri. Babu Rao Chunchansur

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

K. v. Nagaraj @ Swastik Nagaraj Vs State by Lokayuktha Police

K. v. Nagaraj @ Swastik Nagaraj Vs State by Lokayuktha Police

K. v. Nagaraj @ Swastik Nagaraj Vs State by Lokayuktha Police

Lokesh Vs State of Karnataka

Dayanand Vs State of Karnataka

Premchand Jain @ Prem Vs State of Karnataka