TaxTMI 
TaxTMI 
2008 (9) TMI 1011
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....ending that in view of Sub-section (2) of Section 145 of the said Act, the 2nd respondent 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. 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. 4. In Criminal Writ Petition No. 738 of 2008, the 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. 5. Insofar 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 Procedu....
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.... on the said aspect of the case with a prayer that the said contention may be kept open. 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 that 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 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 ....
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....pearing for the respondents in Criminal Writ Petition Nos. 1170 of 2008, 1171 of 2008 and 1172 of 2008 submitted that insofar 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 Anr. v. Budhrani Finance Ltd. and Anr. 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 Anr. v. Wipro Finance Ltd. and Anr. 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 (supra) and submitted that the guidelines therein will have to be followed by all Courts. Similar submissions hav....
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....fidavit 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. 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. 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 v. Commissioner of Custom Export Promotion and Anr. 2007 All MR (Cri) 1335 : 2007 (5) ....
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....elied 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, In fact 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) 14. The issue before the Full Bench was answered in paragraph 18 which reads thus: 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 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) 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 o....
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....uch 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. 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. 15. We, therefore, make the above as a procedure to be followed by the trial Courts whenever an objection is raised regarding the admissibility....
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....abled 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, raided by the opposite party...is available to the party leading the evidence. Such practice and 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....
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....ument 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 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, 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 o....
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....ible or not, at the time when the documents are sought to be produced, and not at the time of the delivery of judgment. 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 in the deposition immediately after the reference to the witness. 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. 21. On this aspect, it will be necessary to refe....
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....s, 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 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 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. 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....
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....arding 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. 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 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 application when an objection is raised to the proof or to irregular/insufficient mode of....
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....n view of the decision in K.S.L. Industries (supra). 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 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: 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....