Karnataka High Court
M/S Safe Water Lines Pvt Ltd vs M/S Advance International on 18 July, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 899 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION No.899 OF 2015
BETWEEN:
1. M/S SAFE WATER LINES PVT LTD
HAVING ITS OFFICE AT 53/2,
4TH CROSS, INDIRANAGAR,
HAL 2ND STAGE, BANGALORE,
REPRESENTED BY ITS MANAGER,
MR.SUJAI NAIR
...PETITIONER
(BY SRI R A DEVANAND, ADVOCATE)
AND:
1. M/S ADVANCE INTERNATIONAL
CARGO LOGISTICS,
HAVING ITS OFFICE AT NO.1/1,
GROUND FLOOR,
1ST CROSS, 15TH MAIN
Digitally HAL 2ND STAGE,
signed by 100 FT ROAD, INDIRANGAR,
MALATESH
KC BANGALORE-8,
Location: REPRESENTED BY ITS PARTNERS.
HIGH
COURT OF 2. MRS. USHA RANI
KARNATAKA
PARTNER OF ADVANCE INTERNATIONAL CARGO
LOGISTIS,
NO.1/1, GROUND FLOOR,
1ST CROSS, 15TH MAIN, HAL 2ND STAGE,
100FT ROAD, INDIRANGAR,
BANGALORE-8.
3. MR SHASHIDHARAN KANNAGARAJ
MANAGING PARTNER OF
ADVANCE INTERNATIONAL CARGO LOGISTICS,
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NC: 2024:KHC:28006
CRL.RP No. 899 of 2015
NO.1/1, GROUND FLOOR,
1ST CROSS, 15TH MAIN, HAL 2ND STAGE,
100 FT ROAD, INDIRANAGAR,
BANGALORE-8.
...RESPONDENTS
(BY SRI IAN LEWIS, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 401 CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 24.07.2015 ON
THE FILE OF THE LVII ADDL. CITY CIVIL AND S.J.,
BANGALORE, IN CRL.A.No.25033/2014 VIDE ANNEXURE-A, BY
DISMISSING THE APPLICATION UNDER SEC. 391(1) OF THE
CR.P.C.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri R.A. Devanand, learned counsel for the revision petitioner and Sri Ian Lewis, learned counsel for the respondents.
2. Revision Petition is filed by the complainant challenging the Order passed by the LVII Addl. City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru, in Crl.A.No.25033/2014, dated 24th July 2015.
3. Facts of the case in brief are as under:
Revision Petitioner filed a criminal complaint under Section 138 of the Negotiable Instruments Act alleging that the cheque given by the accused No.1 of which accused Nos.2 and -3- NC: 2024:KHC:28006 CRL.RP No. 899 of 2015 3 are responsible to honour the same, got dishonoured and sought for action.
4. The Trial Court, after due trial, convicted respondent Nos.1 to 3 and acquitted accused No.4 viz., Sri Gopi Kanagaraj.
Against the Order of conviction, accused Nos.1 to 3 filed an appeal in Crl.A.No.25033/2014.
5. Before the First Appellate Court it was contended that there was no proper appreciation of the material on record, especially, date of service of notice and in that regard, an application came to be filed under Section 391(1) of the Code of Criminal Procedure by the revision petitioner, who was the respondent/complainant, stating that the postal acknowledgment card has been misplaced in the original records of the Trial Court and therefore, photocopy of the same may be permitted to be produced as secondary evidence.
6. Said application was opposed by the accused who were the appellants and learned Judge in the First Appellate Court by order dated 24.07.2015 dismissed the application filed by respondent/complainant.
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7. Paragraphs 9 and 10 of the said Order reads as under:
"9. The contention of the complainant is that they have produced original acknowledgement; but it is not found in the file. The documents marked on behalf of the complainant are Exs.P.1 to P.14. In the complaint the list of documents shows 5 documents; i.e., cheque, statement of account, bill of lading and debit notes, return instruments advise and cheque return intimation, notice of advocate, other relevant documents. The documents relied upon by the complainant are Ex.P.1 the Resolution, Ex.P.2 Authorization Letter, Exs.P.3 to P.5 Cheques, Exs.P.6 to P.8 are the Endorsements, Ex.P.9 is the Notice, Ex.P.10 is the Copy of the Notice, Exs.P.11 to P.14 are the Reply. However, the original acknowledgement is not marked before the trial court. Even the index of the complaint shows list documents are bill of lading, debit note, statement of account, 3 cheques, cheque return memo, legal notice, postal receipts and acknowledgement reply, authorization letter, vakalath. However, in the list of documents dated 12.10.2012 there is no recital about the acknowledgement.
10. In this case, the complainant wants to rely upon the Xerox copies of the acknowledgement to show the date of service of the notice as 20.06.2006. However, in this case if at all the complainant want to establish this fact he has to take proper recourse to law to obtain the document from postal authority and then, if he could not able to secure the same he can rely upon these documents as secondary evidence. Hence, it is just and necessary to say that the respondent has not made out grounds to allow the -5- NC: 2024:KHC:28006 CRL.RP No. 899 of 2015 application. Hence, there is no merit in the application. Hence, I answer this point in the negative, and proceed to pass the following: -
ORDER The application filed under Section 391 (1) of Cr.P.C. by the respondent is dismissed.
No order as to cost."
8. Being aggrieved by the same, complainant/respondent is before this Court.
9. Sri R.A. Devanand, learned counsel for the revision petitioner vehemently contended that the original postal acknowledgement which was produced by the complainant found missing from the original records of the Trial Court. Therefore, the photocopy retained by the revision petitioner was sought to be placed on record which was not properly appreciated by the learned Judge in the First Appellate Court. Therefore, the order of rejecting the application is illegal and sought for allowing the revision.
10. Per contra, learned counsel for the respondent opposing the revision grounds contended that the ordersheet of the Trial Court dated 04.01.2010 would clearly show that after production of the original documents for the purpose of taking -6- NC: 2024:KHC:28006 CRL.RP No. 899 of 2015 cognizance and after recording the sworn statement for want of safety, the office of Magistrate was directed to return all the original documents to the complainant with a direction to produce the same at the time of trial. Therefore, the contentions urged on behalf of the complainant that the records are misplaced in the Court cannot be countenanced in law.
11. He also contended that normally the additional evidence would not be permitted to be produced in any trial; more so, in a criminal trial and in the case on hand, only to plug the loophole in the case of the complainant, the secondary evidence was sought to be introduced for the first time before the First Appellate Court which has been rightly appreciated by the learned Judge in the First Appellate Court and rightly rejected the same and thus, sought for dismissal of the revision petition.
12. In support of his case, Sri Ian Lewis, learned counsel placed reliance on the judgment of the Hon'ble Apex Court in the case of Kaliya v. State of Madhya Pradesh, reported in (2013) 10 SCC 758, where under their lordships dealt with -7- NC: 2024:KHC:28006 CRL.RP No. 899 of 2015 the rule with regard to the introduction and acceptance of the secondary evidence.
Relevant paragraphs of the said judgment are at paragraphs 12 and 13 which are culled out hereunder:
"12. Shri S.K. Dubey has placed much reliance on the judgment of this Court in Narain Singh v. State of Haryana [(2004) 13 SCC 264 : 2005 SCC (Cri) 185] , wherein the Court acquitted the accused persons only on the ground that the dying declaration itself was not proved and, therefore the question of acting on it could not arise. The ratio of the said judgment has no application in the instant case as mentioned hereinabove. In the instant case, the trial court had granted permission to lead secondary evidence and the same had been adduced strictly in accordance with law and accepted by the courts below.
13. Section 65(c) of the 1872 Act provides that secondary evidence can be adduced relating to a document when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason, not arising from his own default, or neglect, produce it in reasonable time. The court is obliged to examine the probative value of documents produced in the court or their contents and decide the question of admissibility of a document in secondary evidence. (Vide H. Siddiqui v. A. Ramalingam [(2011) 4 SCC 240 : (2011) 2 SCC (Civ) 209] and Rasiklal Manikchand Dhariwal v. M.S.S. Food Products [(2012) 2 SCC 196 : (2012) 1 SCC (Civ) 705] .) However, -8- NC: 2024:KHC:28006 CRL.RP No. 899 of 2015 the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non-production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. Further, mere admission of a document in evidence does not amount to its proof. Nor mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] , Marwari Kumhar v. Bhagwanpuri Guru Ganeshpuri [(2000) 6 SCC 735 : AIR 2000 SC 2629] , R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple [(2003) 8 SCC 752 : AIR 2003 SC 4548] , Dayamathi Bai v. K.M. Shaffi [(2004) 7 SCC 107 : AIR 2004 SC 4082] and LIC v. Ram Pal Singh Bisen [(2010) 4 SCC 491 : (2010) 2 SCC (Civ) 191 : (2010) 1 SCC (L&S) 1072] .)"-9-
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13. In view of the rival contentions, this Court considered the material on record carefully including the original records.
14. It is seen from the original records of the Trial Court that on 04.01.2010 there is an order for return of all the original documents to the complainant with a direction to produce the same at the time of trial. But, on perusal of the order sheet it depicts that there is no acknowledgement to the effect that the complainant has taken back all the original documents nor there is any separate acknowledgement. Whether at all the complainant had taken back all the documents or not, is a moot question that has to be looked into.
15. Be that what it may. Fact remains that the original postal acknowledgement is not forthcoming in the Trial Court Records. Therefore, complainant wanted to place on record the photocopy of the said document.
16. If a photocopy is introduced as secondary evidence, necessarily the party who wants to place reliance on the secondary evidence must make out a foundation.
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17. In the case on hand, such a foundation has been made in the application itself by the complainant by stating that the original documents are missing from the Trial Court records. Therefore, the complainant may be directed to place the photocopy thereof.
18. Production of the secondary evidence and proof thereof is altogether a different issue.
19. The learned Judge in the First Appellate Court in the impugned order while rejecting the prayer in paragraph 10 of the impugned order, has formed an opinion that the complainant in order to establish the fact of service of notice, has to take proper recourse with regard to obtaining documents from postal acknowledgement. The notice came to be served according to the appellants on 20.06.2007. The order of the First Appellate Court is dated 24.07.2015. Whether at all postal authorities would keep those records for such a long time is a question that had to be taken note of by the learned Judge in the First Appellate Court.
20. Further, if veracity of photocopy of the postal acknowledgement card was challenged, the First Appellate
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NC: 2024:KHC:28006 CRL.RP No. 899 of 2015 Court should have held an enquiry by itself about the proof of that document or would have remanded the matter to the learned Trial Magistrate with regard to the proof of that particular document by keeping the appeal pending or could have even remanded the whole matter to the Trial Court for fresh disposal in accordance with law. Preventing a person from production of the document itself has taken place in the impugned order which cannot be countenanced in law.
21. It is settled principles of law and requires no emphasis that mere production of a document even for that matter, secondary evidence is not the proof of a document. If such an opportunity was granted to the respondent/accused to question the validity or veracity of the photo copy of the postal acknowledgement card, ends of justice would have been met.
22. Under such circumstances, the order passed by the learned Judge in the First Appellate Court cannot be countenanced in law and needs to be set aside.
23. There cannot be any dispute as to the principles of law enunciated in the case of Kaliya as referred to supra relied on by the counsel for respondent.
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24. However, the facts of the present case are different inasmuch as the revision petitioner is contending that the documents are missed from the Court records for which his rights cannot be put to jeopardy.
Accordingly, following:
ORDER
(i) Revision petition is allowed.
(ii) Consequently, application filed by the revision petitioner under Section 391 (1) of Cr.P.C., is also allowed.
(iii) It is made clear that mere production of the photocopy of the postal acknowledgement card would not be ipso facto treated as proof of the document and the respondent/accused has got an opportunity to question its veracity and for that purpose, the First Appellate Court is directed to hold an enquiry and pass appropriate orders in accordance with law.
Sd/-
(V SRISHANANDA) JUDGE kcm, MR