Karnataka High Court
K.Balasubramanian vs Hasham Investment And Trading Company ... on 8 December, 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08 T H DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL PETITION NO.9323 OF 2021
BETWEEN:
K.Balasub ramanian,
S/o Krishnamoorthy,
Aged about 54 years,
Chartered Accountant,
27 t h 4 t h Main Road,
Kasturib a Nag ar, Adyar,
Chennai-600020.
(Address above is as p er
Aadhaar & same is p roduced)
...Petitioner
(By Sri Shakeer Abbas M., Advocate)
AND:
Hasham Investment and
Trading Comp any Pvt Ltd.,
HP House, 5 Janmabhoomi Marg ,
Fort, Mumb ai-400023
Represented by its Authorized Signatory
Sri Samb asivam Kailasam
Corporate Office at:
No.134, Dodd ankanelli,
Sarjapur Road ,
Beng aluru-560035.
...Respondent
(By Sri S.Ganesh, Senior Counsel for
Sri Sri Venkatesh S. Arbatti, Advocate)
:: 2 ::
This Criminal Petition is filed under Section 482
of Cr.P.C. p raying to quash the ord er dated
25.11.2021 of the learned XXIII A.S.C.J. and
A.C.M.M., Beng aluru in C.C.No.25456/2009 dismissing
the p etitioner application under Section 294 of the
Code and consequently direct the respondent to
forthwith complete the ad mission or denial of the
documents intended to be relied upon by the
petitioner in C.C.No.25456/2009 pending on the file of
XXIII A.S.C.J. and A.C.M.M., Bengaluru.
This Criminal Petition coming on for orders
through video conferencing this d ay, the Court mad e
the following:
ORDER
This petition under section 482 Cr.P.C. is filed by accused no.5 in C.C.No.25456/2009 on the file of XXIII Addl. C.M.M., Bengaluru, a proceeding under section 138 of N.I.Act, initiated by the respondent. The events that have led the petitioner to invoke jurisdiction of this court under section 482 Cr.P.C. are as under:
2. The petitioner filed an application under section 294 Cr.P.C. when the trial reached the stage of recording defence evidence. The petitioner wanted to tender 28 documents to :: 3 ::
obtain an admission or denial on the documents from the respondent. Before making application under section 294 Cr.P.C., the petitioner had also filed an application under section 65 of the Evidence Act for permitting him to produce secondary evidence of some of the documents that had been included in the list of documents appended to the application under section 294 Cr.P.C. But by the time, the learned Magistrate decided the application under section 294 Cr.P.C., she had already dismissed that application under section 65 of the Evidence Act. Therefore for this reason, as also for the other reasons that the xerox copies were not admissible and that the genuineness of the documents were questionable, the Magistrate dismissed the application under section 294 Cr.P.C. by her order dated 25.11.2021. This is the order assailed here.
:: 4 ::
3. Learned counsel for the petitioner, Sri. Shakeer Abbas argued that the Magistrate has misunderstood the scope of section 294 Cr.P.C.
Dismissal of application under section 65 of the Evidence Act would not come in the way of allowing the application under section 294 Cr.P.C., as it's scope is entirely different in the sense that it is mainly intended to save the time during trial and the admission given by a party on a particular document dispenses with formal proof through a witness. In this view, he argued that application should have been allowed. He has placed reliance on the following judgments in support of his arguments:-
i) Saddiq and Others vs State [1980 SCC Online All 614]
ii) Shaikh Farid Hussinsab vs State of Maharashtra [1981 SCC Online Bom 26] :: 5 ::
iii) Sonu Alias Amar vs State of Haryana [(2017) 8 SCC 570]
iv) Shamsher Singh Verma vs State of Haryana [(2016) 15 SCC 485]
4. Opposing the petition, Sri. S. Ganesh, learned Senior Counsel for respondent, put forward contentions that once the trial court rejected the documents to be admitted as they were inadmissible, the very same documents could not be allowed to be produced indirectly under section 294 Cr.P.C. The other documents which did not form part of application under section 65 of the Evidence Act, were wholly irrelevant. In this context, he has relied upon a judgment of the High Court of Rajasthan in the case of Surendra Kumar Vs. State of Rajasthan (MANU/RH/0289/1991). He further argued that the petitioner resorted to making application under section 294 Cr.P.C. knowing very well the time :: 6 ::
frame fixed by the Supreme Court for disposal of the case. With these contentions, he argued for dismissal of the petition.
5. I have considered the points raised by the learned counsel. The question to be considered is whether the documents sought to be produced under section 294 Cr.P.C. should pass the test of admissibility and relevancy? Section 294 Cr.P.C.
is akin to Order 11 Rule 1 CPC, both provisions are aimed at saving the time during trial. One party to the proceeding may produce a document and call upon his opponent either to admit or deny it. If admitted, such document may be read in evidence; this is purely procedural which dispenses with its proof for, the party has admitted it. Proviso to section 294 Cr.P.C. states that despite document being admitted, the court may, in its discretion require the signature on the document to be proved.
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6. If the judgments cited by the learned counsel for the petitioner are referred to, what is held by the High Court of Bombay in the case of Shaikh Farid Hussinsab (supra) is:
"6. Section 294 of the Code is introduced to dispense with this avoidable waste of time and facilitate removal of such obstruction in the speedy trial. The accused is now enabled to waive the said right and save the time. This is a new provision having no corresponding provision in the repealed Code of Criminal Procedure. It requires the prosecutor or the accused, as the case may be, to admit or deny the genuineness of the documents sought to be relied against him at the outset in writing. On his admitting or indicating no dispute as to the genuineness, the Court is authorised to dispense with its formal proof thereof. In fact after indication of not dispute as to the genuineness, proof of documents is reduced to a sheer empty formality. The section is obviously aimed at :: 8 ::
undoing the judicial view by legislative process.
7. The preceding Section 293 of the Code also dispenses with the proof of certain documents. It corresponds with Section 510 of the repealed Code of Criminal procedure. It enumerates the category of documents, proof of which is not necessary unless the Court itself thinks it necessary. Section 294 makes dispensation of formal proof dependent on the accused or the prosecutor, not disputing the genuineness of the documents sought to be used against them. Such contemplated dispensation, is not restricted to any class or category of documents as under section 293, in which ordinarily authenticity is dependent more on the mechanical process involved than on the knowledge, observation or the skill of the author, rendering oral evidence just formal. Nor it is made dependent on the relative importance of the document or probative value thereof. The documents being primary or secondary or :: 9 ::
substantive or corroborative, is not relevant for attracting Section 294 of the Code. Not disputing its genuineness is the only solitary test therefore."
7. In Saddiq (supra), the Allahabad High Court has held as below:
8. ......... But where the genuineness of a document filed by the prosecution or the accused under Sub-section (1) of Section 294 Cr. P.C. is not disputed by the opposite party, Sub-section (3) of Section 294 Cr. P.C. is applicable and a document may be read as substantive evidence. Section 294 Cr. P.C. is a new section as it had no equivalent in the Code of Criminal Procedure 1898. It is based on the rule of evidence that facts admitted need not be proved, contained in Section 58 Evidence Act. The object of enacting this section appears to be to avoid the time of the Court being wasted by examining the signatory of the document filed by the prosecution or the accused under Sub-section (1) of Section 294 Cr. P.C. to prove his :: 10 ::
signature and the correctness of its contents if its genuineness is not disputed by the opposite party. ........."
8. In the case of Sonu @ Amar, the scope of section 294 Cr.P.C. did not arise for discussion, but a reference is made to the decision of the Bombay High Court in Shaikh Farid Hussinsab. It is held that Shaikh Farid Hussinsab is not applicable to the facts in Sonu @ Amar.
9. The decisions cited by the petitioner's counsel actually do not deal with the question under consideration here. Though the Bombay High Court has made an observation in Shaik Farid that the production of the documents under section 294 Cr.P.C. cannot be made dependant on the relative importance of the document or the probative value, it is also further observed that not disputing the genuineness of document is the solitary test. The High Court of Rajasthan did not interfere with the order of the trial court which :: 11 ::
rejected the application under section 294 Cr.P.C.
What is held is:
5. Now, I take-up the question :
whether the application under Section 294 Cr.P.C. filed by Yaspal Bhatiya, was rightly dismissed by the learned lower Court or not? The learned Special Judge dismissed the application under Section 294 Cr.P.C. filed by Yaspal Bhatiya, only on the ground that the documents filed by Yaspal Bhatiya are neither original nor the certified copies of the originals.
They are merely the photostat copies which are not admissible in evidence. The learned Special Judge, therefore, opined that the accused can obtain the certified copies of the original documents and can file the same in the Court and thereafter he can move an application for summoning the original documents and can put-up those documents to the witnesses in their cross-examination. Unless and until the original documents or the certified copies thereof are filed, the prosecution cannot be asked to admit or deny the :: 12 ::
documents as these documents are not admissible in evidence. In rejecting this application, also, the learned Special Judge has not committed any illegality. When the documents themselves are not admissible in evidence, as neither they are certified copies nor the original documents, then the prosecution cannot be asked to admit or deny the documents. The order passed by the learned lower Court, rejecting the application under Section 294 Cr.P.C. also, does not require any interference. It may further be mentioned that the application under Section 294 Cr.P.C. was filed by Yaspal Bhatiya and not by the petitioner and Yaspal Bhatiya did not raise any grievance against the order rejecting his application. In this view of the matter, the order passed by the learned lower Court, rejecting the application under Section 294 Cr.P.C. filed by Yaspal Bhatiya, also, does not require any interference................."
(emphasis supplied) :: 13 ::
10. If the conspectus of the scope of section 294 Cr.P.C. and the above referred decisions are taken, it may be said that section 294 Cr.P.C. is concerned with speeding up the trial and it is for this reason, one party may require the other party to admit or deny a document. A party may admit a document; and in that event, a document may be taken on record as a piece of evidence.
Question of admissibility arises if there is inherent bar for admitting a document in evidence, otherwise not. What a party cannot produce standing in the witness box cannot be introduced indirectly under section 294 Cr.P.C. Relevancy of evidence is the fulcrum for looking into a document while appreciating evidence. A document may be admitted in evidence as it may pass the test of admissibility, yet it may be ignored while appreciating evidence if it is irrelevant for deciding a case. Thus seen, the documents introduced under section 294 Cr.P.C. should be found to be :: 14 ::
admissible and relevant. Otherwise, a party interested in delaying the proceeding will go on introducing the documents that are really not at all helpful in deciding a case.
11. In the case on hand, the petitioner has not at all stated in his application how the documents help establish his defence. The application must contain a brief reference to relevancy to enable the trial court to apply its mind either to allow or reject the application, and if the application is silent about it, such an application deserves rejection. Therefore there is no infirmity in the final conclusion of the Magistrate to dismiss the application. Resultantly this petition is dismissed.
Sd/-
JUDGE sd