Mrs. S.W. Deshpande, learned counsel for the petitioner
urged that at the first place the said documents being tendered on
the record in absence of the petitioner, he had no opportunity to
object exhibiting of said documents. It was urged that as per the
provisions of Section 272 of the Code of Criminal Procedure, it was
incumbent upon the trial Court to permit adducing evidence on the
record in presence of the accused. It is submitted that taking such
evidence on record and not considering the application for de-
exhibiting documents preferred by the petitioner would cause grave
It is thus contended that the order
prejudice to the petitioner.
passed by the trial Court be quashed and set aside.
7.
Mr. Sable, learned counsel for the respondent rightly
submitted that the petitioner and his Advocate having remained
absent on the date in question when the said documents were
tendered on the record, it is not now open for them to contend that
said evidence was adduced on the record in their absence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Writ Petition No.377/2013
.. Versus ..
..
Shri Gopal Shankarrao Deshmukh,
.. Versus ..
..Jagdamba Nagari sahakari pat sanstha
CORAM : P.D.KODE, J.
DATED : DECEMBER 13,2013
Citation; 2014 ALL MR (CRI)670 Bom
1. Heard.
2. Rule. Rule made returnable forthwith.
Heard finally by
consent of parties.
3.
By
the
present
petition
under
Article
227
of
the
Constitution of India, the accused in S.C.C. No.670/2009 prays for
quashing and setting aside the order dated 17.04.2013 passed by
the trial Court rejecting his application for de-exhibiting certain
4.
documents.
Considering the short controversy involved in this matter,
it is wholly unnecessary to recite in details about the said case
except stating that accused is facing the said prosecution on the
accusation of having committed the offence under Section 138 of
the Negotiable Instruments Act. It appears that during the course of
the said case, the respondent herein filed an the affidavit of his
evidence. The accused and his Advocate remained absent. On the
said date, certain documents were tendered in the evidence. The
trial Court exhibited the said documents and the deposition of the
said witness was closed.
5.
The
petitioner
assailed
the
said
order
by
taking
proceedings before this Court and the said order of closing the
deposition of the said witness without cross-examination was
quashed and set aside and the matter was relegated back to the
trial Court for the purposes of the cross-examination. It appears that
thereafter the petitioner preferred an application Exh.94 for de-
exhibiting the said documents.
6.
Mrs. S.W. Deshpande, learned counsel for the petitioner
urged that at the first place the said documents being tendered on
the record in absence of the petitioner, he had no opportunity to
object exhibiting of said documents. It was urged that as per the
provisions of Section 272 of the Code of Criminal Procedure, it was
incumbent upon the trial Court to permit adducing evidence on the
record in presence of the accused. It is submitted that taking such
evidence on record and not considering the application for de-
exhibiting documents preferred by the petitioner would cause grave
It is thus contended that the order
prejudice to the petitioner.
passed by the trial Court be quashed and set aside.
7.
Mr. Sable, learned counsel for the respondent rightly
submitted that the petitioner and his Advocate having remained
absent on the date in question when the said documents were
tendered on the record, it is not now open for them to contend that
said evidence was adduced on the record in their absence.
It is
submitted that this Court has graciously allowed the earlier writ
petition and set aside the order of no cross-examination of
concerned witness on behalf of the petitioner and relegated the
matter back to the trial Court for further cross-examination. Mr.
Sable contended that the trial Court correctly observed that instead
of effecting such a cross-examination, the petitioner interested in
prolonging the proceedings made said application and as such the
same was rightly rejected.
It is thus contended that there are no
merits in the petition preferred and it be dismissed.
8.
After giving anxious consideration to the submissions
advanced by both the parties and taking into consideration the
provisions of the Evidence Act, it will be necessary to say that in the
course of any criminal trial documentary evidence tendered on the
record is required to be exhibited only in event of relevant
documents
being
proved
in
accordance
with
the
provisions
contained in the Indian Evidence Act pertaining to the proof of
The documents which are proved in
contents of the document.
WP37713.odt
such a manner can only be marked as exhibit as per the provisions
contained in the Criminal Manual issued by this Court. The glance at
the application preferred by the petitioner reveals that he has
objected
exhibiting of the said documents.
The perusal of the
reasoning given by the trial Court does not show any whisper about
the relevant aspect i.e. whether the said documents were properly
In the said circumstances, the application preferred by the
ig
law.
proved and/or being required to be exhibited under any provisions of
petitioner was decided and/or rejected by the trial Court without
applying mind to question raised therein.
9.
Now
considering
the question
of the matter
being
relegated back only for the purpose of cross-examination and the
contention that by making such an application the petitioner was
trying to prolong the matter, it is difficult to find any substance in
the said submission.
Needless to add that the provisions of the
cross-examination contained in the Evidence Act reveal that the
same are for the purposes of testing the evidence adduced in the
examination-in-chief.
In the said context for taking the
decision
whether the cross-examination is to be effected upon the documents
which are tendered on the record during the examination-in-chief,
the concerned accused will have every right to invite the decision
from the Court regarding the particular document being exhibited
due to being properly proved or otherwise. Needless to add that the
accused being required to cross-examine the concerned witness
only regarding the documents which are duly proved in accordance
with the law, it was necessary for the concerned Court to decide the
10.
said relevant aspect prior to commencement of cross-examination.
In the premises aforesaid and particularly the reasoning
given by the trial Court being blissfully silent regarding rejecting the
request for de-exhibiting the documents and absolutely no reason
being recorded for it, such an order cannot be legally sustained.
quashed and set aside.
In the circumstances, the order impugned is hereby
The matter is relegated back to the trial
11.
mentioned
Court for deciding afresh the application Exh.94 and the request
therein
regarding
de-exhibiting
the documents
by
considering the relevant aspect whether the documents which are
marked exhibited, were proved in accordance with the law and/or
being required to be exhibited in view of the particular provision of
law. The trial Court shall decide said application at the earliest after
hearing both the sides about the aspect of the documents exhibited
being either proved in accordance with law or being required to be
exhibited due to particular provision contained in the Evidence Act.
12.
Rule made absolute in the aforesaid terms. No costs.
(P.D. Kode,J.)
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