Karnataka High Court
Shri S Suresh S/O Shri. K.Shankara Rao vs Shri L Pothe Gowda S/O Late Lingaiah on 12 April, 2010
Author: Subhash B.Adi
Bench: Subhash B.Adi
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF APRIL 2010
BEFORE 4' V.
THE HON'BLE MR.JUS'I'lCE " 1. _
WRIT PETXTION N0. 13505-Io'?-2opi.7'¢ 'V
BETWEEN: V " --~
Shri. S. Suresh, ' ll
S/0 Shri. K. Shankara Rao, ' _ '_ kw
Aged 42 years, .
Residing at No.204/B,
13* Floor, Millers Road,
Opp: Jain Hospital,
Vasanth Nagar, _' _ 1 - '
Baflgalore W 560 2: A ' PE'I'1TIONER
{By Sri. H.S. 5[4)war1;afi:ath:8£"-: " 3
Sri. Srinivas .VVKuEk_;ar11i.,_ Ac__1vs';}« ._ V V
AND:
1. Shn. £."--«P0the Go{nrtla;-
S/orALate L1'1j.gaiah,'
'fxgsd about 53 vyears,
" ..SI13LV'Qr€€'fha_,
W/L5"S.1ir:ij~L..v~~Pothe Gowda.
"Aged abouit 42 years.
-- V3. Rajlva,
S/'Q Slhn. L. Pothe Gowda,
A. , _'Aged about 23 years,
Ramesh,
S/0 Shm. L. Pothe Gowda,
Aged about 21 years,
Nos. 1, 2,3814
All are residing at No.7/90,
9"" 'A' Main, 15' Stage,
Indiranagar.
Bangalore ---- 560 038.
5. Shri. K. Gopai Poojari,
S/o Late Panju Poojari.
Aged about 47 years,
R/at No.94, 11"" Cross,
II Stage, Indiranagar,
Bangalore -» 560 038.
6. Shnl K. Madhav,
S/o Late Panju Poojari,
Aged about 42 years, ,
R/at No. 151, 10th "A'"Ma1'1'1 Roa"Ci;..V_
13' Stage, Indiranagai', A «iv 'A '
Bangalore -- 560 038. " .V
S/ o Shri. Mutfihae Poojari...
Aged ahoujt'3_7'yearsjff ' '
R/at No;'8u1"1,¥:},,Oth Main Road},
13¢ .9t"age.,., }fndiré1i'a_gart,." _
Bangalore ' O38; _ A" _ '
7. Shri.K.
8. State of Kamataka .. .
Revenue ..Depart_me=nt,' "
Represented by its Secretary,
»~'vT1dhana Sou'ciha.....t v
V'veBari.ga1ore ---- 560 001.
V . {Resp-ondJent'_No.8 has been
. A' -1_mp1eaded';_as per the court order
' ,__dated .12:-._.1'.2009) .. RESPONDENTS
{By Sri. Ashok Haranahalli, Adv. General with "S_r1.A. Hanumantharayappa. HCGP for R.8 Sr1.gP.'1},« Surana, Adv. for R6 and Sn, H..r;=. Shivakumar, Adv. for R.1~5 & R7) This Writ Petition is filed under Articles 226 8: 227' of the Constitution of India praying to quash the Article 5{e)(1} of Karnataka Stamp Act was unconstitutional and "xquash Annexu:re--A, the order passed on 17 .3;2O'0_7*.V in O.S.No.1323/2007' on I.A.V. filed under Sectio.n.__4'34"s-ofpvthe Karnataka Stamp Act by the City Civil Judge, Banga1ore:;--..(C'Cf~ie
19) and dismiss l.A.No.V in O.S.No.1323/2007 on.._thejp'_ii.le of'C.ity' Civil Judge, Bangalore, (CCH--19) and etc. This Petition coming on for hzearingfthis . made the following:
oRnER ,-,,....._---.(.....
This Writ Petitionis dire-e--ted_"--against the order dated 17 3.2007 in 0.S.No. 13:23/'2t{.k'-3'?' under Section 34 of the Karnataka _Starnp;Act,' all95?7D{hereinalter referred to as 'the Act').
2. pPetition}='_r the trial court. He has sought for restraining the defendants from interfering with -pea,cefu'l possession and enjoyment of the ,»suit prop'erty.,...«' In the said suit, plaintiff produced .._With the plaint, further he also filed an application Crder XXXIX Rule 1 and 2 of CPC interalia for V grant of injunction, restraining the defendants from peaceful possession and enjoyment of the suit property. As against the application for grant of llutemporary injunction, defendants filed I.As.5 and 6 under A""'Section 34 of the Act read with Section 11 of the Karnataka $35» Court Fees and Suit Valuation Act interalia alleging that, the document produced along with the plaint is a conveyance as defined under the provisions of Section 2 clause id) of the Act and is an instrument chargeable under Section 3 of Act, unless the stamp duty and penalty is paid as the provisions of Section 34 of the Act. It is aiso._::a1ieged the documents are required to be ixn}Jounc'£ed.'-«A .y
3. The trial court re1yin'g__ on Article (63) Section 33 of the Act al1owedVS'c'..lPA.V that, the Memorandum of UnderstaiidingdAd'ated.._2{j'rhp'November 2005 and possession letter of the 'a1'e__'_'.~required to be impounded, for; of :=sta--;mp: '--:and__g«pena1ty. It is against this order, the h,as--a.fil"ed' this writ petition.
4. Petitioner' has sought for declaration that Slclause "{r:}....S_1.l.b~c1ause (i) of schedule to the Act as unccnstietvutionaldhowever, during the course of hearing, he contin,edv'the"preli;ei insofar as the impugned order is concerned. 35, :StritVI4)warakanath, learned Counsel appealing for the "..fpetitionner" submitted that, I.A.V filed for impounding of the document is not rnaintainable in View of the provisions of "Section 34 of the Act and submitted that, the document is produced aiong with the plaint and is not tendered in the evidence nor it is sought to be marked in the evidence. Unless the document is sought to be admitted in the evidence, question of impounding under Section 33 of the Act does not
6. He relied on the judgment of this 1969(2) Mys.L.J. 299 in pgthe "
LAKSHMHVARAYANACHAR --vs-
submitted that, in identical sci-regumsttanees, * interpretation of the provisions that, the impounding of document tofppdeficit "stamp duty arises only when the the evidence. He further re1ieriAT0'n.' judgn'Ient*';Vof this court reported in 1994 Vovl}-4 r<ar.1,.'.):5f'73' 'prnatter of LEELAMMA SAMUEL W 133- T.M.FRANCIS_and that, only when the document ...,.comes§l:hefere the'-.cou_rt for the purpose of being used in 'r_eVid'e.nce,._ t:h.e--.co~-urt is required to determine the question as to xyhetiier thedocument sought to be produced in the evidence is V _ chargneablvei,tifvchargeable, whether sufficient stamp duty is paid, not and determine the stamp duty, call upon the party 4'_'_-prod'ucing such document to deposit the duty and penalty. If 9 party fails to deposit the said amount, the court gets the " " jurisdiction to impound the document. ;g}cM; Z7"?
into before the same tendered in evidence. He also submitted that, the document gets the evidentiary value only when it is produced in the evidence and marked, as otherwise _.d0e'e1ni.ent would not become an evidence. As such, Section=334 not bars the admissibility of the documentif is riot'du13'. C' " .
9. To support his contentiori', zalso" relied. provisions of Section 35 of and .submitte~dw'ti*1at, the"? provisions of Section 35.zof 'bar thé'v3111e.gtj0njng of admissibility on the groundttof ofpstainp duty after the document is ad'mittec;i"in' under Section '58 of the Act. j__ or impounding of document. idootlment is produced in the evidencei He that, the trial court erroneously has orderedfopr of the documents, even before the _ sameare producedin the evidence.
Ojnzapthe other hand, learned Counsel Prakash uapdpearingé vtilehrespondents - defendants strongly relied on the Aju_dgme*nt foft this Court reported in AIR 2003 KAR 241 in the ' Vrnatter of4__E:{.B.JAYARAM AND ANOTHER --vs- NAVINEETI-IAMMA it CTHERS and submitted that. this Court on consideration Qfthe provisions of Section 34 and on interpretation of the word "for any other purpose" referred to under Section 34 of the Act means, even the use of document for grant or refusal of temporary injunction, the document relied by the party"vre_'qui:es to be duly stamped. and the document not is liable to be impounded. The wordfffor anjrddothegr stipulated under Section 34 means, 1311" t1*i_ed'Vocu:(neI:1:t to be acted upon even prior to theproduction of the . L' evidence, such document cannot__d:be:_aeted up-on_by_f?the court unless it is duly stampedxf' The K.B.JAYARAM's case (supra) being the later jiidvgmepnt, is binding and required to be .
"'ithat, when two views are expressedin' two by the coordinate bench, then the later. required to be followed or the matter _._may be;required.to--ebe___referred to the Division Bench. In this AVK1fega1'd._,i1eA_ on the judgment reported in AIR 1990 SC 261 in matter SUNDARJAS KANYALAL BHATHUA AND V COLLECTOR, THANE, MAHARASHTRA AND
12. In the light of the submissions made by both the parties, the points that arise for consideration in this writ petition are:
(11 (2) (3) Whether the document produced aiong the plaint or application but not tendered. in A' marking the evidence for impounded?
What are the considerations in the case of document toque A' admitted in the euidencre?1__ T What is the cortsequence of of document, which sufficiently-istdmped, but admitted in the' ~ evidence "without any olzjeciion? 'V 'A 'A it
13. More often, the trial the probiem as regard:--:.~--to_ the imipouiiding of'--doc'ument either as regard to the stageat glwhichlfthe could be impounded or as regard to the ..proced1ire._fo¥£:;c~§'wed in ordering the impounding of the do-cuvmcnt. It "ir1__connection with order of impounding or .
Al".xrejecti_r1gl,. VA largdnumber of cases are filed before this court. In 'itself, trial court, based on the application fiied by the d'er¢miani§ for impounding, has directly impounded the .,hy ailowing the said application only on the ground document is not duly stamped. In some cases, the order of impounding the document is passed only when such it document is sought to be marked in the evidence. Sometimes 's ,%i*%--:~ courts on the basis of the objection raised for marking on the ground of insufficiency of stamp, order for impounding of the documents.
14. All suits have to be filed and tried procedure prescribed in the Code of""Civil ;f5roceduureVV u_1}'11ex'ss,VV' otherwise is provided by any other layup Iinsoliarll documents is concerned, by "jl999,"t which came into effect on 'Order 'Vil._Ruile 14 was substituted interalia where upon a document or relies upon a power, he shall enter such produce it in the court whgrgifi P and shall, at the same time, delixrer at copy thereof to be filed with plaint. Sirriilarly defeiadarrts also in View of the insertion of ...V.Order«};VlII~ Rule " are required to produce the list of they rely. Under Order XIII Rule 1 CPC, the origirrais Vvofdltiae 'document shall have to be filed on or before the . settlerhenvtioi' issues. Order XIII Rule 1 reads as under:
he .«f'1. Documentary evidence to be produced at or ' ,_ before the settlement of issue.
(1) The parties or their pleaders shall produce at or before the settlement of issues all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has a%'+°*r~,.'--¢.-11-
not already been filed in Court, and all documents which the Court has ordered to be produced. {2} The Court shall receive the documents so produced:
Provided that they are accomparuied by an accurc2te"«.lis't_ thereof prepared in such form as the High Cour_t~di'1_fec.ts J3". "
15. Reading of the provisions of Order ?.'.1j4,14'oi~d«epp VIII Rule 1--A and Order XIII Rule mlak-::s"'«it originals of the documents reliedby the coi.;1d"be an, or before the settlement of issu'es:;'i. It "means, is not necessary that the original to ufithvbthe plaint. However, the originai party relies and seeks to produceithei-.sarliAe produce the same on or before the se.ttle'men't..e.f i'ss__ues';-1 Power is also conferred on the Court to or inadmissible documents under Order XIII"Rule power is conferred on the court to admit" thedocuinent in evidence in terms of Order XIII 'C it Rzileffi' ,_OnceCtheV document is admitted, the procedure lucoritempliatedv Order XIII Rule 4 requires to be foilowed for the A making an endorsement on every such . 'documer1.,ta_A'1=~'\rhich has been admitted in the evidence. Thus, it is "cl_ear that, original documents are required to be produced on or ' .._Wbefore the settlement of issues, power is conferred on the court éfto reject inadmissible or irrelevant documents and power is also either to give evidence or to produce document and obtain summons to such persons for their attendance in court. "Thus, after the original documents are filed in terms of Order» 1 and after the issues are settled, on the date the parties are required to file list 'of yvitnessesjywl = , summons for production of docurnents Witnesses. This is second stage «.__of production'; through the Witness. However, not bar the plaintiff or the defendant document the cross- examination of the witness'... by by V V
16. Reading §f;o'r_d¢pf--.V1i:_ Order VIII Rule 1- A and / or Order theygdo not make it mandatory for the * to théeofighial documents along with plaint and wri,ttenvE-ztatevment,'butfiswame can be produced on or before _._the settlement of 'issues._ However, there is no bar to look into '«d_ocurne11ts"'~-,produced along with the plaint or Written sltatelrnent' «'«l'Whil~e'"considering the interlocutory application. V . Interl6cutory'application could be filed at any stage of the suit it eyenbefore the settlement of issues. Production of document is depending on filing or non-filing of interlocutory application T and the documents, which are required to be admitted in it evidence, have to be filed in original before the settlement of «$3;
issues. Documents, which are required to be summoned, such list shall be filed within 15 days from the date of settlement of issues i.e., the appointed day fixed by the court. Doculritertt to be impounded must be original and not original document itself could be pro.ducedV"a't"'*oijV.be~fo'r¢ the'V settlement of issues and its impounding could 'be' corii-:id"er_ed only at the stage of framing of 'issues, itcannot Avsaidflthat the: ' document produced along with .pla.int or statement couid be rejected or impo"undled;V'_p'even'p:.b'efore the issues are settled. Reading of_these:Ap;ovi:sio'ns"that, the objection as regard to O'f.rt:1':1VVé:'V.'rVj"(*,~.:'1:irnent Could only be raised during and if such objections are raised, reasons as regard to the objectionvlfby Order XVIII Rule 4, which was sub-stitutedby amendrhent Act 22 of 2002 provides for filing an aii'1davit"iby wayflmof evidence in examination~in~chief and are filed and the parties rely upon the documentsilithen proof and admissibility of such documents, f"~..4.._"which aredfiied along with the affidavit, shall be subject to the "ord.ers"A_~of the court. Hence, all such documents on which the relies and produces in the evidence, its admissibility has \ ujfto be tested only during the course of the evidence.
17. In the light of the provisions of the Code of Civil Procedure as regard to production of evidence and the provisions of Sections 33 and 34» of the Act, it is clear that a or instrument, which required to be duly stamped stamped or insufiiciently stamped, is" inadrnissib1e_lin_ evidence. The purpose of Sections 33 and 34 of is to a.dmit document in evidence, if it is not---duly or insufiicient1yl'"sta;1nped.l' It is in this context, the i.mpoundinglVg_oflltt1e docuirient has to be considered, as once the it becomes an evidence. Und'3r__82 'Practice, once the document is it is also further clear from--the of the Act wherein raising of objection admissibility after the document is admitted, limpermissiblij. Hence. from the procedure contemplated :Ord:er VII Rule 14, Order XIII Rule 1, 4, 6 Rule 1 and Order XVIII Rule 4 makes it alsxluthat the admissibility or inadmissibility of . document oi="its rejection or impound arises only when it is 3' .1;"er1deredVV'in evidence. In the light of the procedure prescribed e.__u'nde1"the Code of Civil Procedure read with Sections 33, 34 and 3--.'3:of the Act, impounding of document has to be considered 3' only when it is produced in evidence and not otherwise.
18. No doubt, in K.B.JAYARAM's case (supra), except reference to an interlocutory application, there is no reference to the procedure as regards to the production of question of procedure of impounding of the e provisions of the Code of Civil ' e.
consideration. The said case was decid:ede~ circumstances of that case decision of this court in ease (supra) and LEELAMMA and in the light of the procedure contemplatedfunderetheprovisions of the Code of Civil of Sections 33, 34 and 35 of dfocument would arise only when it is produeed,,Vin.evide'n_ee arid not otherwise.
19. vaslS_ect1on:.34 of the Act is concerned, title of _ Sectiori.34l'itse1f nrria}.<:ees__it.clear, which reads as under:
A * --. _"34.Instr--*u_ments not duly stamped inadmissible " V _ in vvezqideiace, etc. -- No instrument chargeable with _ 3' -.duty«.sjha(l , be admitted in evidence for any purpose ' , by anyiperson having by law or consent of parties '"'aut!-tiori'ty'" to receive evidence, or shall be acted upon, registered or authenticated by any such person or by = A. officer, unless such instrument is duly " _ stamped."
'Apiain reading of Section 34 as it is, it prohibits the Court from "admitting a document in evidence, If the said document is not
-5"
duly stamped or insufficiently stamped. Bare reading of this provision indicates that the court will not permit a document, which is not duly or insuificientiy stamped to be adinittedvppin evidence. Section 33 of the Act, which is strongly' learned Counsel for the respondents; also every person having by law or consent receive evidence and every I)'\'-"»dV1'_S*9«1..1 inché'I§.t?'_ ofticc before whom any instrument opinion. with duty is produced or conie:.S:"~fl1_'tIie of his functions, shali, if it appears to is not duly stamped, the person. who has authority ._to documents and finds that it duly _insu'fiiciently stamped, the said autho1\1lyv«,_;/7"}//1311' This provision also makes, it clear.' thatthe impounding arises only at the stage of ."recei"vir'1g?--fthe'i* document in the evidence. Section 33 is read "a_I,oVn.gV"pr;3vision of Sections 34 and 35 of the Act, it 1eaves'Vbnop.do"u,bt in the mind that the power of impounding 'could beeiiercised oniy when such document is sought to be in evidence. Section 35 of the Act, prohibits the ...Wquestioning of admissibility of document once it is admitted uifeven on the ground of document not duly or insufficiently ma stamped, except under Section 58 of the Act. These provisions make it abundantly clear that, documents though are filed in the suit. but they are not sought to be admitted in the _4evid_eiice, in such cases, the party cannot be compelled to i _ production of document without using' 2. However, if the documents are usediyas issue involved, party cannot be -ailoxvedvrto Without paying the stamp Ca:/id .':1§'rom the provisions of the Code of the stage of rejection of the document arises. inadmissible in evidence, or is obgected by the court or the reject the document as inadmissibie it forhdmnonwcompliance with the provisions of the Act wanjJ__o'ther law.
Sometimes» the Courts call upon the party to pay the
--an"d_pena1ty, even though such document is not adniissibledinevidence. The Apex Court in a judgment reported V .V in (2692;---1:o "sec 427 in the matter of PETETI SUBBA RAO --vs--
SNARENDRA while considering the admissibility of C tizedojcument, has observed that, the document, which was in C the nature of xerox of an original document and was sought to be produced in the evidence, impounding of xerox of the original _§9_ document does not arise. The Apex Court held that the copy of the document or the xerox copy, which cannot be marked the evidence, the party cannot be called upon to pay the the copy of the document. It is only the which requires the duty or registratiorrwarid wrhiela 4. be marked in the evidence, alone could the copy or xerox of the same. '
21. The Apex Courtqqin anotherlucase in 2009 SUPREME COURT page in the jpfA_VINAsH KUMAR CHAUHAN --vs» held that, reading of Sections Sfiralndw dtllie-«..._ac~tVirilcluidesdocument produced in the e\Iidence.,llAll'erl referring to the earlier judgmerltof "i946 PC 51 has held that, 'for any purpose'.._4.referredVto" Section 34 of the Act, should be givenuiits '*natural'--..mear:ing and effect, as such, any other purpose .,aiso.,in'clude a collateral purpose, whether it is for the 15mf;3o,se"¢l' the main issue or for the collateral purpose.
«q if party relies on the document in the evidence and which lltsrequireshpdayinent of duty or requires the compliance of any _l other"provisions of law, such document shall not be admitted In
-evidence unless it complies with the requirement of law.
é;d»_,,._.-39-
22. The stage at which the document could be impounded has to be considered in the light of the provisions of Sections 33, 34, 35 and 36 of the Act. In the judgment of ~»~vs-- SMT.PUTI'AMMA, this Court on provisions of Sections 33, 34, 35, 36., .3.7__and_-'4'1" "
paraml I, has observed thus:
"11. A combined readingof Sections 3.3, .35, 37 and 41 of the Stamp "Act requires the following procedureto"vbe"adopted by a,7Court while considering._the"ques'tion, of admissibility of a document witiilrefereftci.? tothestamp Act: (a) when a document'-coines iup-=.before_ the Court, it has to _'exarnin'é "a=:1"r;' 'de'terminey' "whether it is properly istatrnpedf When the other side objects to it, gthev _'COul'l,_ sho_u__ld*~ co'nsider_ such objection and hear both sirles,-'it~.(_p)i_ after 'ghearing, if the Court to":-he "cr)rtclusio*n...that the document has ._ been duly Vstarnped, it shall proceed to admit the d'ocurnentfi.nto.'evidence; (c) on the other hand, if $4 pCourt the conclusion that the document. is " not stamped or insufficiently star"nped,~it shall pass an order holding that the document is not duly stamped and determine the 'Stamp duty'/'deficit stamp duty and penalty to be 'paic1"and fix a date to enable the party who ._'''produces the document to pay the Stamp V'd"uty'/deficit Stamp duty plus penalty; (:1) if the _party pays the duty and penalty the Court shall '*-_ceit1fy that proper amount of duty and penalty " _ has been levied and record the name and address of the person paying the said duty and penalty and then admit the document in evidence as provided under Section 41(2); and the Court shall send an authenticated copy of the instrument to the District Registrar together with a Certificate and the amount collected as duty and penalty, as provided under Section 37'(1): le) if the party does not pay the duty and penalty. the Court will have to pass an order impounding the document and send the instrument in original. to the District Registrar for being dealt with in accordance with law as per Section 37(2) ofvthe Karnataka Stamp Act." "
23. The procedure as exp1ained:13y"1hi.s'C§4oart it it the scope of Sections 33, 34, 35, indicates that, admission of payable, if the duty is documer1t--.co--uid if the duty is not paid, it could document itself is not sought to be' admitted' the question of determining to pay duty does not arise.» ____ H 17 that, even if document is insuflicientlyétté"stampedhand objection is not raised by the "d.efen.da11tS as to"'the«"adrr1ission of the document in the Court in a judgment reported in ILR 200'? KAR 2%es"in theV'V',fi;atter of SMTMALLIGA PANEER SELVAM ~--vs-- sm 7_RAJA sA:{fHYANARAYANA SHETTY AND OTHERS referring to A '~:3fthe'3j'odgment of the Apex Court reported in AIR 1961 SC 1655 " has held that, once the document is admitted, its admissibility -22- cannot be questioned thereafter except under Section 58 of the Act.
25. If two conflicting opinions are expressed:
different Benches of the same State, requires to be considered by the iarger' int K.B.JAYARAM's case (supra) has the document at the interlocutoryfistages it isVl based on the facts of the ca.se.l...q11e'stion.of admissibility of such document in the evidence rnatter, which fell for consideration. said considered the earlier decision__ C.0l1if:tl the matter of lésupral and LEELAMMA SAMUEI;'s_ case' decision will not be a bar to consider and the Act. as regard to irnpout:idin'g of th'e..do_cument. Merely because the documents Al':__are'produced,aiong with the plaint, that by itself automatically dlosg'.flot"\varrant'lior impounding of the document. The party
-- may laidrriitdthe document in the evidence or may not choose to it * admit thesame in the evidence.
26. When a document is produced and is sought to be it marked in the evidence in proof of the issue raised in the suit, 1
-33, court is required to see as to whether, the document is admissible in evidence, or whether the document is irrelevant, or the document requires the compliance of any provisionls._Vof law. Payment of stamp duty is revenue to the _ such, it is the duty of the court to verifypthe docui*ne:nt., 3 be admitted in evidence and if it insufficiently stamped, it shall uplonytiie the same to pay the duty and the court may proceed to inltevidence. If the duty is not paid, the the original document and for further action.
Party objectingtol his objection at the time of without objection, the partyllcaynnot as to the admissibility of the document in thefevidence eircept under Section 58 of the Act. '.j{p11«.,:l'1:1y considered opinion, impounding of the document'un.de§r"3ection 33 or 34 of the Act arises only when it 'V is soughtV,to'be admitted in the evidence. it v :fAccordingly, the petition is allowed. The impugned order is set aside. The trial court is directed to consider the r$°r.:"':i 1"' _24_ admissibility of the document, if the said document is sought to be produced in evidence and not otherwise. KNM/--