Bombay High Court
M/S Nexus Minmet Merchandising Pvt. ... vs State Of Maharashtra And Another on 30 January, 2015
Author: S. B. Shukre
Bench: S. B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO. 80 OF 2014
1. M/s. Nexus Minmet Merchandising
Private Limited, through its
Director Shri Ayush Suresh Lohiya
2. Ayush Suresh Lohiya,
Director of Nexus Minmet Merchandising
Private Limited, aged about 34 yrs.,
3. Suresh s/o Pralhadrai Lohiya
aged about 56 yrs., Director of
Nexus Minmet Merchandising
Private Limited,
All r/o Flat No. 102, 1st floor,
Paramount Heights, Shivaji Nagar,
40, Cement Road,
Nagpur-440010. :: APPLICANTS
.. Versus
..
1. State of Maharashtra
through P.S.O. Sitabuldi
Police Station,
Nagpur.
2. M/s B. S. Ispat Limited,
through its Authorised Signatory
Shri Sanjay Dattatraya Agnihotri,
aged about 44 years,
5, Temple Road, Civil Lines,
Nagpur. :: NON-APPLICANTS
...................................................................................................................................
Shri B. N. Mohta, Advocate for the applicants.
Shri Mukund Ikre, A. P. P. for respondent No.1-State.
Shri Masood Shareef, Advocate for respondent No.2.
...................................................................................................................................
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CORAM : S. B. SHUKRE, J.
DATED : 30th JANUARY, 2015.
O R A L J U D G M E N T O R A L J U D G M E N T
1. Heard.
2. Admit.
3. Heard finally by consent.
4. The main grievance of the applicants in this application is that although the learned Counsel for the applicants had objected several times to exhibit the document produced on record during the course of recording of further examination-in-chief of the complainant i.e. respondent No.2 on 07/8/2013 in a case filed against the applicants under Section 138 of the Negotiable Instruments Act, the objections were not decided then and there only and later on when an application was filed with a prayer for deciding those objections, which application was at Exh..45, the trial Court simply dismissed the objections on the ground that mere marking as exhibits of the documents does not amount to admitting the documents in evidence and the complainant would be required to prove the documents in accordance with law and, therefore, the objections can be decided at the conclusion of the trial, which procedure is not in consonance with the settled principles of law.
::: Downloaded on - 05/02/2015 23:45:09 ::: apl80.14.odt 3/75. This application is, of course, vehemently opposed by the learned Counsel for the respondent No.2 contending that no prejudice is being caused to the applicants and the trial Court has kept the issue open to be decided after hearing the argument of both sides and in any case, the grounds of objections having not been made out by the applicants on the date on which they were taken i.e. on 07/8/2013, there was no way the trial Court could have applied its mind to those objections and decided them appropriately on that date itself.
Therefore, according to learned Counsel for respondent No.2, no illegality can be seen in the approach adopted by the trial Court as well as the orders passed on 07/8/2013 and 26/12/2013, which are impugned in this application.
6. Learned A.P.P. for respondent No.1-the State submits that appropriate order may be passed in the matter.
7. I must say, law in this regard is well settled and has been exhaustively dealt with by the Full Bench of this Court in the case of Hemendra Rasiklal Ghia Vs. Subodh Mody reported in 2008 (6) Mh.
L. J. 886. Although, the law has been laid down in a civil case, the principles can be seen as guiding factors for deciding similar objections in a case filed under Section 138 of the Negotiable Instruments Act as the proceeding initiated thereunder has been held to be having ::: Downloaded on - 05/02/2015 23:45:09 ::: apl80.14.odt 4/7 attributes of a civil proceeding, though the remedy is a summary one.
In the said case of Hemendra Rasiklal Ghia, the Full Bench of this Court has made a broad categorization of the objections by dividing them into three classes. These classes are: (i) objections pertaining to insufficiently stamped documents, (ii) objection pertaining to mode of proof of the documents, and (iii) objection pertaining to documents which are inadmissible in evidence. The Full Bench then held that even if the first and third objections are not taken promptly, still the documents would not become admissible in evidence unless the lacunae pointed out in the objections are removed. However, in case of second category of the objections, it is necessary that they are taken then and there only and if not taken, the Court may decide the issue of admissibility of document by considering the fact that the mode of proof of the documents has been waived by the party which has failed to take objection promptly. But, even in the second category of the objections, Full Bench of this Court has held that it would be advisable for the Courts to decide that objection then and there only as it would enable the party to tender such evidence as is necessary to cure the defect.
8. Even in the case of Shalimar Chemical Works Limited Vs. Surendra Oil and Dal Mills (Refineries) and Others reported in (2010) ::: Downloaded on - 05/02/2015 23:45:09 ::: apl80.14.odt 5/7 8 SCC 423, the Hon'ble Apex Court, while dealing with the issue of admissibility of a photocopy of certificate of trademark registration, has held that the trial Court cannot mark as exhibit the photocopy of such a certificate and cannot take it on record as evidence by holding that the issue of proof of the document can be decided at the conclusion of the trial.
9. So, what can be seen from Shalimar Chemical Works Limited and Hemendra Rasiklal Ghia that deciding of the objection taken promptly then and there only has its own advantages. Firstly, if the objection is to be upheld, it would give an opportunity to the party tendering evidence to remove the defect by producing on record appropriate proof of the document and if the objection is to be overruled, it would enable to the party raising the objection to decide on a proper course of action to be taken in the matter. Such party can challenge such an order before the higher Court by initiating appropriate proceedings or can properly frame the questions to be put to the other side for controverting the other side in respect of the admissibility of the document. Therefore, I am of the view that the objections in this case ought to have been decided before proceeding further in the case by the trial Court.
::: Downloaded on - 05/02/2015 23:45:09 ::: apl80.14.odt 6/710. From the further examination-in-chief recorded by the trial Court on 07/8/2013, as rightly submitted by learned Counsel for respondent No.2, it does not become clear as to on what grounds objections as to admissibility of documents were taken by the applicants. According to the learned Counsel for respondent No.2, the applicants did not disclose the grounds on which they raised the objections and on the other hand, learned Counsel for the applicants states that those grounds were very well stated by the applicants but were not mentioned in the examination-in-chief recorded on 07/8/2013 by the trial Court. Whatever might be the truth, the fact remains that grounds of these objections appeared on record about two months later when the applicants filed an application vide Exh.45 for deciding of their objections in the matter. In this application, the applicants stated in details the grounds on which they had taken objections on 07/8/2013. Since the matter has not proceeded further and is still pending at the stage of cross-examination of the complainant's witness, no prejudice would be caused to either of the parties if they are decided now. Therefore, it would be appropriate now and also advantageous for both parties to direct the trial Court to decide these objections in stead of leaving them to be decided at a later point of time.
::: Downloaded on - 05/02/2015 23:45:09 ::: apl80.14.odt 7/711. In this view of the matter, I am of the view that the application deserves to be allowed and it is allowed accordingly.
The order passed on 26/12/2013 below Exh.45 is hereby quashed and set aside.
The trial Court is directed to decide the application (Exh.45) afresh in the light of the observations made here in above.
The parties to appear before the trial Court on the date already fixed in the matter.
Liberty is given to the complainant to lead its further examination-in-chief, if required.
Application is disposed of accordingly.
JUDGE wwl ::: Downloaded on - 05/02/2015 23:45:09 :::