Kanhaiyalal S/O Khayaldas ... vs Anil S/O Khupchand Gurubakshani on 4 February, 2010

                                   1

        IN

           THE HIGH COURT OF JUDICATURE AT BOMBAY

                                                  APPELLATE SIDE, BENCH AT
AURANGABAD

           CRIMINAL WRIT PETITION NO.976 OF 2009

  Kanhaiyalal s/o Khayaldas Kewalramani

age 50 years, occupation : contractor

r/o Amroli Park,Behind Hotel Carnations

Devlai Camp, Nashik Road, Nashik,

Taluka and District Nashik. ..Petitioner/ ori.accused

 versus

 Anil s/o Khupchand Gurubakshani,

age 49 years, occup. business,

r/of Nandurbar, Taluka and Dist. ..Respondent/ Nandurbar. ori.complt.  Ms.
Rashmi Hardas, Advocate instructed by Shri C.R. Deshpande, Advocate for the
petitioner. Shri S.P.Wani, Advocate, instructed by Shri A.G. Magare, Advocate
for the respondent.

            Coram : P.R.Borkar,J.

                                      Date : 04/02/2010.

 ORAL JUDGMENT



01. By this writ petition, the petitioner  accused in S.T.C. No. 164 of 2006
challenges the order  dated 18.8.2009 passed by the learned Judicial 2

Magistrate, First Class, Nandurbar rejecting  application (Exh.92).



02. Briefly stated, the facts giving rise  to this petition are that the present
respondent is  the original complainant who filed complaint against  present
petitioneroriginal accused for having  committed offence punishable under
Section 138 of the  Negotiable Instruments Act and under Section 420 of  the
Indian Penal Code. The trial proceeded for  offence under Section 138 of
Negotiable Instruments  Act. The petitioneraccused was discharged of offence
under Section 420 of IPC. The respondentcomplainant  filed his affidavit in lieu
of examinationinchief  and thereafter on 13.5.2009, petitioneraccused filed  an
application (Exh.92) calling upon respondent  complainant to produce books of
accounts, referred to  in paragraph 10 of complainant's affidavit filed in  lieu
of examinationinchief, for verifying various  entries and for cross examination
purpose.

03. The said application was strongly opposed by  the respondentcomplainant,
submitting that there is  no provision in the Code of Criminal Procedure, 1973,
to call for the documents. It is also stated that it 3

is the complainant's right to produce the documents as  are found to be
necessary and proper and if the  documents are not produced by him, he cannot be
compelled or directed to produce the same under  criminal law. The trial court
appears to have  accepted this argument as in paragraph 4 of the  judgment, he
observed that the affidavit is already  filed by the complainant along with
documents which  were necessary as per the complaint and the burden is  on the
complainant to prove his case and accused has  nothing to prove and ultimately
if the complainant  does not wish to produce the document, he would  suffer.
Application (Exh.92) was therefore rejected by  the learned trial judge by the
impugned order and  hence this writ petition.



4. On behalf of the petitioner, learned Counsel  Ms. Rashmi Hardas submitted
that in paragraph 10 of  the affidavit in lieu of examinationinchief the
respondentcomplainant has stated that on 1.6.2002 he  had debited the amount of
Rs.1.50 lakhs in the name of  the petitioneraccused. The complainant further
stated  that the accounts were written by him in his hand;  those were written
daily. After referring to the  account books he stated that the contents therein
are 4

correct. He further stated that he had brought the  original account books in
the court and produced  office copy thereof. This affidavit is in lieu of
examinationinchief. It is not that the court has  allowed the secondary evidence
and rightly, therefore,  the complainant said that he had brought original
account books. The debit entry would be admissible in  evidence both, under
Section 32(2), so also under  Section 34 of the Evidence Act. However, if we
refer  to both the sections, it is clear that there is rider  inasmuch as the
entries in the account books are  admissible only if the accounts are regularly
kept in  the course of business. So, the condition that the  books should be
kept or maintained in ordinary course  of business is a sinequanon before
admitting the  entry in evidence. What is sought to be produced on  record of
the court is a office copy of the relevant  entry and not the entire account
book in which there  is entry. So, when such secondary evidence is being  sought
to be produced before the court and when the  original was in possession of the
respondent  complainant, he was bound to produce the original and  in his
affidavit in lieu of examinationinchief the  complainant did say that he had
brought the  original. In such circumstances, the accused gets a 5

right to demonstrate that the entries in the account  books are not maintained
in the regular course of  business.



05. Under Chapter V of the Evidence Act, before  secondary evidence can be
allowed when primary is in  possession, permission of the court is required in
the  first instance and secondly, other side gets a right  to take inspection of
entire account books and put  questions regarding the same to ascertain whether
the  accounts were maintained in ordinary course of  business regularly so as to
be admissible under  Section 32(2) and also under Section 34 of the  Evidence
Act.



6. Another aspect that is to be noted is that  the court is not devoid of any
power to call upon any  party to produce a document. Section 165 of the  Indiana
Evidence Act is a provision empowering a judge  which he may exercise to obtain
proper proof of fact  and for that purpose at any time order any witness or
party production of any document. Apart from that, the  present complainant was
in possession of the original  account book which he had brought in the court
and  therefore the petitioneraccused had every right to 6

inspect the original account books and put question to  the witness in his cross
examination so as to  demonstrate that the entry therein would not be  relevant
and admissible either under Section 32(2) or  34 of the Evidence Act. To that
extent, accused gets  right of inspection of the account books and putting
question to the witness.



7. It is another thing that if the respondent  complainant does not want to rely
upon the office copy  of the entry which is produced on record of the court,  or
does not want to rely on the entry in the account  book and in that case, such
evidence will not be  considered. But, the complainant having brought the
original account books and relied upon entry therein,  it would not be proper
not to allow the inspection  thereof by the accused and consequential questions
in  the cross examination of the witness.



8. It is argued by Advocate Shri Wani for the  respondentcomplainant that
production and inspection  of the account book of the year 2002 and putting
questions regarding them would lead to fishing  enquiry and fishing questions.
There may be such  possibility, but the trial court is sufficiently 7

empowered under the law. to curtail unnecessary or  irrelevant questions and to
ensure that the cross  examination does not change into harassment of the
complainant.



9. It is also argued by Advocate Shri Wani that  extraordinary jurisdiction of
this Court under  Article 226/227 of the Constitution may not be  exercised in
the present case, since the impugned  order is interlocutory in nature.
Ordinarily, this  court would not have entertained this writ petition  and would
have left the parties to argue the matter in  appeal, after the trial is over,
if occasion arises.  However, considering the wrong notions of law  canvassed
before me, it is necessary to make the  things clear and, therefore, I am
inclined to  entertain this writ petition.



10. In the result, writ petition is allowed.  The application Exh.92 before the
trial court is  allowed only so far as account books of the year 2002  are
concerned. The complainantrespondent is to  produce the said accounts for
inspection by  petitioneraccused and the same may be used for the in
crossexamination for the purposes stated above. In 8

case the complainant does not produce the account  books, then office copy of
the relevant entry, so  also paragraph 10 of the affidavit of the complainant
which is filed in lieu of examinationinchief will be  ignored and if the
circumstances so demand, adverse  inference can be drawn.



11. With observations as above, writ petition  disposed of. Rule made absolute,
accordingly.    pnd/criwp976.09 (P.R.BORKAR, J.)      9