2008 (9) TMI 1011 - HC - Indian Laws

Negotiable Instruments Act, 1881 - Dishonor of Cheque - proof of a document or admissibility of a document in evidence which is tendered along with a list of documents or along with an affidavit in lieu of examination-in-chief - Interpretation of Section 145(2) - procedure followed regarding marking the documents as exhibits - HELD THAT - The issue of the interpretation of Sub-section (2) of Section 145 is well settled by the Division Bench in the case of KSL Industries Ltd. 2005 (2) TMI 885 - BOMBAY HIGH COURT reads thus '' The second part of Sub-section (1) provides that the complainant may give his evidence on affidavit and may, subject to all just exceptions, be read in evidence in any enquiry, trial or other proceeding. Thus, it is clear that once the evidence of the complainant is given on affidavit, it may be read in evidence in any enquiry, trial or other proceeding, and it may be subject to all just exceptions.'' The procedure laid down by the Apex Court in the case of Bipin Panchal 2001 (2) TMI 590 - SUPREME COURT will have to be followed by the Courts sub-ordinate to this Court. However, the said decision-of Apex Court is applicable only to one category of objection regarding admissibility of the document in evidence and that decision has no application when an objection is raised to the proof or to irregular/insufficient mode of proof of a document. Objection regarding inadequacy of stamp is concerned that is already settled by the larger bench of the Apex Court in the case of Javer Chand 1961 (4) TMI 118 - SUPREME COURT . In fact, in the decision of this Court in the case of Peacock Industries 2006 (7) TMI 700 - BOMBAY HIGH COURT , the judgment of the Apex Court in the case of Bipin Panchal (supra) is not read and interpreted to mean that it also applies to the objection regarding proof of documents. Therefore, after filing of affidavit of examination-in-chief and after recording formal examination-in-chief of the concerned witness, an objection raised regarding proof of documents or insufficiency of proof or of adopting incorrect mode of proof has to be dealt with immediately by the learned Magistrate before proceeding with the recording of cross-examination. Only in a case where the said adjudication involves a decision on complicated questions which require a very detailed adjudication, it can be postponed till the final hearing. In a case where a document is proved in accordance with Evidence Act but an objection is raised to the admissibility of the said document, as held by the Apex Court in the case of Bipin Panchal (supra), such document can be tentatively marked as an exhibit as objection to the admissibility can be decided at the stage of final hearing as contemplated in the decision of the case of Bipin Panchal (supra). if objection regarding proof of a document is decided, the complainant or accused who has produced the said documents is put to the notice that the document is not held as proved so that he can seek indulgence from the Court of leading further evidence. This, avoids possibility of parties applying at the stage of judgment for recalling the witness or for leading further evidence for proving a document. I have already held that merely because a document referred to in cross-examination is marked as an exhibit, the same does not dispense with the proof of document, in accordance with law of evidence. Criminal Application - objection to admissibility of the affidavit of examination-in-chief - The perusal of the order dated 16th July, 2008 shows that there is no specific objection raised regarding the proof of the documents. The order dated 16th July, 2008 has been recorded during the course of recording formal examination-in-chief of the complainant. As far as objection to the admissibility of affidavit of examination-in-chief is concerned, as stated above, the interpretation made by this Court of Section 145(2) of the said Act of 1881 stands and therefore objection to admissibility of the affidavit of examination-in-chief cannot be sustained. In the circumstances, no interference is called for with the impugned orders subject to what is laid down in this judgment. In Criminal Writ Petition , the learned Judge has tentatively marked all the documents produced by the complainant as exhibits. As held earlier, before proceeding to record the cross-examination, the learned Judge will have to deal with the objection as regards proof of the documents leaving the objection, if any, as regards admissibility open. Hence, I pass the following order Subject to what is observed in this judgment, no case for interference is made out and the petitions are disposed of.

Summary

Issues Involved:
1. Interpretation of Section 145(2) of the Negotiable Instruments Act, 1881.
2. Procedure for recording evidence and marking documents as exhibits in complaints under Section 138 of the Negotiable Instruments Act, 1881.
3. Admissibility and proof of documents in criminal trials.
4. Compliance with the Criminal Manual issued by the High Court.

Detailed Analysis:

1. Interpretation of Section 145(2) of the Negotiable Instruments Act, 1881:
The petitions challenge the rejection of applications under Section 145(2) of the Negotiable Instruments Act, 1881, which pertains to the requirement for the complainant to appear in court and have their examination-in-chief recorded. The court reiterated the settled law from the Division Bench decision in KSL Industries Ltd. v. Mannalal Khandelwal, which held that once the evidence of the complainant is given on affidavit, it may be read in evidence subject to all just exceptions. The court emphasized that the law laid down by the Division Bench is binding unless modified by the Apex Court.

2. Procedure for Recording Evidence and Marking Documents as Exhibits:
The main submissions focused on the procedure to be followed when evidence is recorded by permitting the filing of an affidavit in lieu of examination-in-chief. The court noted that after the formal examination-in-chief is recorded, the stage for Section 294 of the Code of Criminal Procedure, 1973, comes into play, requiring the rival party to admit or deny the genuineness of the documents. If genuineness is not disputed, the document can be read in evidence without formal proof. The court referenced the Full Bench decision in Shaikh Farid Hussainsab v. State of Maharashtra, which supports this procedural requirement.

3. Admissibility and Proof of Documents in Criminal Trials:
The court distinguished between objections regarding the proof of documents and objections regarding their admissibility. It cited the Supreme Court's decision in Bipin Shantilal Panchal v. State of Gujarat, which provides guidelines for handling objections to admissibility by marking documents tentatively as exhibits and deciding on objections at the final stage. However, for objections related to the proof of documents, the court emphasized the need for immediate adjudication to avoid prejudice and allow the party to cure any defects in proof. The court also referenced the decision in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, which categorizes objections into those disputing admissibility and those concerning the mode of proof.

4. Compliance with the Criminal Manual Issued by the High Court:
The court highlighted the importance of adhering to the Criminal Manual's provisions, particularly paragraphs 33 and 34 of Chapter VI, which mandate determining the admissibility of documents when they are produced and marking them as exhibits immediately upon proof. The court stressed that this practice ensures clarity and efficiency in the trial process.

Judgment:
The court concluded that the petitions challenging the requirement for the complainant to step into the witness box based on Section 145(2) could not be entertained due to the binding precedent set by KSL Industries. For objections regarding the proof of documents, the court directed that such objections should be decided immediately before proceeding with cross-examination, except in cases requiring detailed adjudication, which can be postponed until the final hearing. The court affirmed the necessity of following the procedure laid down in Bipin Panchal for objections to admissibility but clarified that this does not apply to objections regarding proof. The petitions were disposed of subject to these observations.