Telangana High Court
S. Murali Krishna vs Adinaresh Died on 28 June, 2022
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.2735 OF 2022
ORDER:
Heard Mr. K. Sai Babu, learned counsel for the petitioner - accused, Mr. Ponnam Ashok Goud, learned counsel representing Mr. Ponnam Mahesh Babu, learned counsel for respondent No.1 and learned Assistant Public Prosecutor appearing on behalf of respondent No.2.
2. The present Criminal Petition is filed under Section - 482 of the Code of Criminal Procedure, 1973, to quash the order dated 15.03.2022 in Crl.M.P. No.98 of 2022 in Crl.A. No.31 of 2019 passed by the learned IV Additional Metropolitan Sessions Judge, Hyderabad.
3. Perusal of the record would reveal that the petitioner herein is the sole accused in C.C. No.88 of 2016 on the file of XVI Special Magistrate, Erramanzil, Hyderabad. The offence alleged against him is under Section 138 of the Negotiable Instruments Act, 1881. The deceased respondent - Adi Naresh filed the said complaint against the 2 KL,J Crl.P. No.2735 of 2022 petitioner herein. After his demise, his son, Mr. Adi Nitin, was brought on record as his legal representative.
4. Vide judgment dated 20.12.2018, the learned Magistrate found the petitioner herein guilty for the offence under Section - 138 of the Negotiable Instruments Act, 1988 and accordingly convicted and sentenced him to pay fine of Rs.9,00,000/- (Rupees Nine Lakhs Only), in default, to undergo simple imprisonment for a period of three (03) months.
5. Feeling aggrieved by the same and dissatisfied with the said judgment, the petitioner herein had preferred an appeal vide Crl.A. No.31 of 2019 pending on the file of IV Additional Metropolitan Sessions Judge at Hyderabad. During the pendency of the said appeal, the petitioner herein had filed an application under Sections - 91 and 311 of the Cr.P.C. vide Crl.M.P. No.98 of 2022 to issue summons to Mr. V. Satyanarayana, Bench Clerk of II Additional Chief Metropolitan Magistrate, Nampally, Hyderabad, to examine and give evidence so as to identify the signature of the deceased respondent, who gave evidence as PW.1 in C.C. No.606 of 2016 on the file of II Additional Chief Metropolitan Magistrate, Nampally, Hyderabad, 3 KL,J Crl.P. No.2735 of 2022 with a direction to produce attendance register of the said Court dated 09.01.2019.
6. The petitioner herein had filed the said petition on the following grounds:
a) The deceased respondent herein had filed the subject case against the petitioner herein for the offence under Section - 138 of the Negotiable Instruments Act, 1881;
b) In relation to the said offence, the deceased respondent had given a complaint to the Sultan Bazar Police Station, Hyderabad, who in turn, registered a case in Crime No.97 of 2016 against the petitioner herein. The Police having investigated the said crime laid the charge sheet against the petitioner herein for the offences under Sections -
504 and 506 of IPC. The same was taken on file vide C.C. 606 of 2016. In the said C.C., the deceased respondent had examined as PW.1. However, after trial, the C.C. ended in acquittal.
c) The deceased respondent had given two different versions on oath in the subject case (i.e., C.C. No.88 of 2016) and in C.C. No.606 of 2016;
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d) In order to elicit the truth as to which version is correct, the petitioner herein had filed Crl.M.P. No.1790 of 2020 under Section - 391 of the Cr.P.C. in Crl.A. No.31 of 2019 to receive the deposition of the deceased respondent in C.C. No.606 of 2016 as additional evidence by recalling him so as to confront the said deposition.
e) The said petition was allowed by the learned appellate Court vide order dated 19.03.2020. Thereafter, due to lock down imposed by the Central Government as well as the State Government, Courts could not function physically. While so, the respondent died on 24.02.2021. Thereafter, his son filed Crl.M.P. No.898 of 2021 requesting him to represent the appeal as a legal representative of his father and the same was allowed on 29.10.2021.
f) Since the deceased respondent died, it is just and necessary to mark deposition of the deceased respondent in C.C. No.606 of 2016 through Mr. V. Satyanarayana, who was working as Bench Clerk at the time of obtaining the signatures of the deceased resp0ondent in the deposition of PW.1 in C.C. No.606 of 2016 and who is in a position to identify the signatures of the deceased respondent. 5
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7) The said application was opposed by respondent No.1 herein on the following grounds:
a) The Bench Clerk is not a proper witness to identify the signature of any witness;
b) His duty is only to do work entrusted to him
c) He will not have any acquaintance with any of the litigants who come to the Court and, therefore, he is not the right person to be a witness in the present appeal.
8) Vide impugned order, the appellate Court had dismissed the said application on the following grounds:
a) The party, who seeks a particular relief, has to enlighten the Court on the points as urged by him to the satisfaction of the Court, and the petitioner herein failed to enlighten the same with sound reasons to satisfy on valid and bona fide grounds how he could get such kind of reliefs. A Court staff cannot be called as a witness on behalf of the party, that too by producing the original records from the Court where he is working, on the sole pretext that the Court allowed Crl.M.P. No.1790 of 2020.
b) There is long lapse of time in between the subject petition with that of the earlier petition i.e., Crl.M.P. No.1790 of 2020. 6
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c) No convincing reasons offered by the petitioner for taking such considerable time in filing the subject petition.
d) When there is relevant Court record, then either parties can take benefit out of the same to establish those aspects as those proceedings are part and parcel of the said Court record.
e) The proceedings of the Court should be deemed and considered as they have taken as part and parcel of the Court proceedings.
f) Admitted facts need not be proved separately until and unless contrary is proved and Court can take judicial notice of those proceedings as well as Court records.
9. Assailing the said order, Mr. K. Sai Babu, learned counsel for the petitioner, would submit that the Court below having allowed Crl.M.P. No.1790 of 2020 filed under Section 311 of the Cr.P.C., to front the deposition of PW.1 in C.C. No.606 of 2016 to the Bench Clerk of the said Court, dismissed the subject petition vide impugned order, which is illegal.
i) Referring to Sections - 33 and 47 of the Indian Evidence Act, 1872 (for short 'Act, 1872') learned counsel for the petitioner, would 7 KL,J Crl.P. No.2735 of 2022 submit that the impugned order is contrary to the said provisions. The learned appellate Court erred in the procedure, both Criminal Law and the appreciation of the evidence in criminal trial and further erred in a criminal Court in administration of justice if the witness given two contradictory versions in Court and if suddenly the witness dies, his evidence is admissible under Section 33 of the Act, 1872.
ii) In support of his contentions, learned counsel for the petitioner has also placed reliance on the judgment of the Hon'ble Supreme Court in Fakhruddin v. The State of M.P.1, LIC of India v. Ram Pal Singh Bisen2; Bipin Shantilal Panchal v. State of Gujarat3, judgment of the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh in Mr. P. Pramod Kumar v. P. Savithabai4, judgments of the High Court of Andhra Pradesh at Hyderabad in S. Mange Naik v. State of A.P.5 and P. Tirupathi v. State of Andhra Pradesh6 and also the judgment 1 . AIR 1967 SC 1326 2 . 2010(4) SCC 491 3 . (2001) 3 SCC 1 4 . Crl.P. No.3716 of 2018, decided on 13.06.2018 5 . 2002 (1) ALD (Crl.) 596 (AP) 6 . 2012 (1) ALD (Crl.) 88 (AP) 8 KL,J Crl.P. No.2735 of 2022 rendered by the Gauhati High Court in Anupam Chakraborty v. State of Assam7.
iii) With the aforesaid submissions, learned counsel sought to allow the petition.
10. On the other hand, learned counsel for respondent No.1 and learned Assistant Public Prosecutor would submit that the Court staff cannot be called for a witness and to produce original record. He is not the relevant witness. Considering the said aspects and also the provisions of the Act, 1872 and the principle laid down by various High Courts, the learned appellate Court dismissed the subject application filed by the petitioner herein. There is no error in it.
11. In view of the aforesaid rival submissions, it is relevant to note the provisions of Sections - 33 and 47 of the Act, 1872, which are as under:
"33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.-- Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts 7 . 1984 Crl.L.J. 733 9 KL,J Crl.P. No.2735 of 2022 which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:
Provided-- that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross- examine; that the questions in issue were substantially the same in the first as in the second proceeding.
Explanation.--A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section."
"47. Opinion as to handwriting, when relevant.--When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
Explanation.--A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.
Illustration: The question is, whether a given letter is in the underwriting of A, a merchant in London. B is a merchant in Calcutta, who has written letters addressed to A and received 10 KL,J Crl.P. No.2735 of 2022 letters purporting to be written by him. C is B's clerk, whose duty it was to examine and file B's correspondence. D is B's broker, to whom B habitually submitted the letters purporting to be written by A for the purpose of advising him thereon. The opinions of B, C and D on the question whether the letter is in the handwriting of A are relevant, though neither B, C nor D ever saw A write."
12. In view of the above, vide the subject petition, the petitioner herein sought to summon the Bench Clerk, who had taken the signatures of the deceased respondent on his deposition as PW.1 in C.C. No.606 of 2016, to confront the said deposition to him and to produce the original record. Therefore, the said relief cannot be granted in view of Sections - 33 and 47 of the Act, 1872. Therefore, the contention of the learned counsel for the petitioner herein is unsustainable.
13. In Fakhruddin1, the Apex Court while dealing with the evidence of the identity of handwriting held that the evidence of identity of handwriting receives treatment in three sections of the Indian Evidence Act. They are Sections 45, 47 and 73. Handwriting may be proved on admission of the writer, by the evidence of some witness in whose presence he wrote. This is direct evidence and if it is available the evidence of any other kind is rendered unnecessary. 11
KL,J Crl.P. No.2735 of 2022 The Evidence Act also makes relevant the opinion of a handwriting expert (S.45) or of one who is familiar with the writing of a person who is said to have written a particular writing. Thus, besides direct evidence which is of course the best method of proof, the law makes relevant two other modes. A writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert competent to the comparison of handwritings on a scientific basis. A third method (S.73) is comparison by the Court with a writing made in the presence of the Court or admitted or proved to be the writing of the person.
i) On examination of the facts of the said case whether the testimony of the handwriting expert is acceptable or not, the Court has sent for the record and compared the disputed writings with some comparable material. There were two such writings which were claimed as standard. One was a register maintained at the office of the Association in which there was a signature in three places in Hindi which purported to that of Fakhruddin (Exhibit P-56). The other was writing which Fakhruddin made to the dictation of the Police Officer in Jail (Ex.P-61). These were, of course, not admitted by Fakhruddin 12 KL,J Crl.P. No.2735 of 2022 and the question had to be first decided which of the two or both could be said to be approved standard material. Whereas, in the present case, the petitioner herein has sought to summon the Bench Clerk, who is not acquainted with the signature and handwriting of the deceased respondent. As a part of his duty, the Bench Clerk had taken the signatures of PW.1, the deceased respondent herein, in C.C. No.606 of 2016. Therefore, he cannot be summoned for the purpose of confrontation of the signatures of the deceased respondent. Thus, the principle in the said decision is not applicable to the facts of the present case.
14. In LIC of India v. Ram Pal Singh Bisen2, the Apex Court held that under law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Court. Contents of the document cannot be proved by merely filing in a Court. In view of the same, the facts of the case in the said decision and the facts in the present case are 13 KL,J Crl.P. No.2735 of 2022 different and, therefore, the said decision is not helpful to the petitioner herein.
15. In Bipin Shantilal Panchal3, the Apex Court, on examination of the facts therein, held that 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.
i) As discussed above, learned appellate Judge has rightly allowed the application filed by the petitioner under Section - 391 of the Cr.P.C. vide Crl.M.P. No.1790 of 2020 to receive the deposition of the deceased respondent in C.C. No.606 of 2016 as additional evidence as he was examined as PW.1 in the said case and that he had given two different versions in the said case and in the subject case and, therefore, considering the said aspects, learned appellate Judge had allowed the said petition. Subsequently, the deceased respondent 14 KL,J Crl.P. No.2735 of 2022 died on 24.02.2021. Therefore, now the petitioner herein cannot call for the Bench Clerk, who had taken the signatures of the deceased respondent on the deposition of the deceased respondent examined as PW.1 in C.C. No.606 of 2016, as part of his duty, so as to examine him to confront the signatures of the deceased respondent. Thus, the facts of the said decision are different to the facts of the present case and, therefore, the said decision is not helpful to the case of the petitioner herein.
16. In Mr. P. Pramod Kumar4, this Court has examined the correctness of the order dated 11.03.2018 passed in M.C. No.66 of 2017 refusing to mark copies of income tax returns for the assessment years 2009 to 2015 as they were obtained by illegal means, and not accompanied by certificate required under Section - 65B of the Act, 1872. In the said decision, the learned Judge has also relied upon the principle laid down by the Apex Court in Bipin Shantilal Panchal3 and held that filing of various applications and other proceedings will not come in the way of receiving documents in evidence, at best filing successive applications one after another may disclose the conduct of the petitioner in prosecuting the proceedings and as to how the petitioner preventing the Court from proceeding with the enquiry or 15 KL,J Crl.P. No.2735 of 2022 trial of the case. Therefore, filing of many applications is not a ground to refuse to mark documents. Whereas, the facts of the present case are altogether different to the facts of the said case and, therefore, the principle laid down in the said decision is of no use to the petitioner herein.
17. In S. Mange Naik5, it was held by the learned Single Judge of the High Court of Andhra Pradesh at Hyderabad that sanction order not marked as exhibit and proved in the case, Court cannot take note of it on mere ground that it is a part of record. It further held that unless and until it is marked and proved in accordance with the provisions of the Evidence Act, learned Sessions Judge ought not to have taken the same into consideration. Therefore, the facts of the said decision are different to the facts of the present case.
18. In P. Tirupathi6, the learned Single Judge of the High Court of Andhra Pradesh at Hyderabad held in paragraph No.13 which is as under:
"13. The learned counsel for the revision petitioner/de facto complainant contended that the learned trial Judge placed reliance upon Section 161 Cr.P.C. statement of PW.2 to record an acquittal against the accused and that he was erroneously relied upon Sec.161 Cr.P.C. statement of PW.2. It may be noticed that the prosecution marked Sec.161 Cr.P.C. statements 16 KL,J Crl.P. No.2735 of 2022 of PWs.3 and 4 alone as Exs.P.3 and P.4. PW.2 was not confronted with his Sec.161 Cr.P.C. statement. I am afraid that the trial Court was not justified to look into Sec.161 Cr.P.C. statement of PW.2, which was not even exhibited. Added to it, as rightly submitted by the learned counsel for the revision petitioner/de facto complainant, u/s.145 of the Evidence Act, the pre-trial statement of PW.2 could be used to contradict PW.2. His pre-trial statement cannot even use to corroborate the evidence of PW.2. Much worse, the statement of PW.2 u/s.161 Cr.P.C. statement was not exhibited. There was no justification for the trial Court to place reliance upon such 161 Cr.P.C. statement of PW.2."
The facts of the aforesaid decision are also different to the facts of the present case and, therefore, the said decision is inapplicable to the petitioner herein.
19. In Anupam Chakraborty7, the Gauhati High Court held that documents which are produced and are proved by the witness in the Court can only be regarded as evidence. The facts of the said case are also different to the facts of the case on hand and, therefore, the said decision is inapplicable to the petitioner herein.
20. It is relevant to note that the offence alleged against the petitioner herein is under Section - 138 of the N.I. Act. To prove the said offence, initially burden lies on the complainant and thereafter it shifts on to the accused. In the present case, the complainant had 17 KL,J Crl.P. No.2735 of 2022 discharged his burden and, therefore, on consideration of the entire evidence, both oral and documentary, the trial Court convicted the petitioner herein.
21. As against the said conviction judgment, the petitioner filed the appeal. During pendency of the said appeal, the petitioner herein sought to summon the Bench Clerk for the purpose of confrontation of the signatures of the deceased respondent put on the deposition as PW.1 in C.C. No.606 of 2016, the same is impermissible. The earlier petition filed by the petitioner vide Crl.M.P. No.1790 of 2019 to receive the deposition of the deceased respondent made in C.C. No.606 of 2016, was allowed by the appellate Court as by that time the deceased respondent was alive. After allowing the said application, lock down was imposed due to COVID-19 and thereafter the deceased respondent died. Again, the petitioner herein has filed the subject petition to summon the Bench Clerk who was working in the Court of II Additional Chief Metropolitan Magistrate where the deceased respondent was examined as PW.1 in C.C. No.606 of 2016 and that the said Bench Clerk took the signatures of the deceased respondent on the said deposition, for identification of the signatures of the deceased respondent. The learned appellate Judge having 18 KL,J Crl.P. No.2735 of 2022 considered all the said aspects dismissed the subject petition filed by the petitioner vide impugned order. In the said order, the learned appellate Judge observed that the appeal was coming for arguments since 22.07.2019, but on one pretext or other, the petitioner herein sought time. He has not enlightened the appellate Court with sound reasons to satisfy on valid and bona fide grounds how the petitioner could get such kind of relief. It is a reasoned order and there is no error in it to interfere with the same by this Court by invoking its inherent power under Section - 482 of the Cr.P.C. Thus, the present petition is devoid of merits and, therefore, the same is liable to be dismissed.
22. The present Criminal Petition is accordingly dismissed. As a sequel, the miscellaneous petitions, if any, pending in the criminal petition shall stand closed.
_________________ K. LAKSHMAN, J 28th June, 2022 Mgr