The High Court · 2025

Aged 43 years, Occ. Agriculture. ldespondent 2 to 5 are residents of Kampally Village) Occ: Business, No. 4-2-1511127/1, Srinivasa Nagar, Khammam'

6. Alakuntha Shekar, S/o. Rangaiah, Aged 35 years'

7. Ravuri Narsimha Rao' S/o. Venkataiah' Aged 32 years, Occ. Business' R/o. Gudimalla, Khammam Rural

8. Bingaru Venkateshwadu, S/o. Baiaraiah; Aged 32 years' OcJBusiness, R/o. Gudimalla, Khammam Rural 9. Neftikoppula Yellaiah, S/o- Narayana' AOed 3-! V99rs' 1o. Nandigama Damodar Reddy' S/o. Chendra Reddy Ag€d 49 years' Occ' O"., Buiiness, Wo. Venkatagiri, No. Gudimalla, Khammam (R) Business, R/o. Burugupadu, Dornakal. 1 1 . Nettikoppula Goparaju, S/o. Appaiah, Aged 33 years' Occ: Buiiness, Wo. Gudimalla, Khammam Rural 12. Daggupati Mallaiah, S/o. Muthaiah, Aged 33 Years, Occ: Business. Rl/o. Venkatagiri, N/o. Gudimalla, Khammam Rural

13. Chinnabona Laxmi Narayana, S/o. Venkataiah, Aged 33 Years' Occ: Business, Rl/o. Venkatagiri, N/o. Gudimalla, Khammam Rural Accused 1to3, 5 to 13 PetitionunderSection482ofCr.P.Cprayingthatinthecircumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to Quash'the order dated. 29-01-2024 in Crl. R.P. No. 8 of 2023 on the file of Hon'ble Principle Sessions Judge at Mahabubabad, and consequently allow the Crl. M.P. No. 1384 of 2023 in C.C. No. 436 of 2014 on the file of Addl. Judicial Magistrate of First Class at Mahabubabad. l.A. NO: I OF Zl24 Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to grant stay of all further proceedings in C.C No. 436 of 2014 on the file of Addl. Judicial Magistrate of First Class at Mahabubabad, pending disposal of Criminal Petition in the interest of justice. This Petition coming on for hearing, upon perusing the Memorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri SRINIVASA RAO PAC!{WA, Advocate for the Petltioner and Sri Jitender Rao Veeramalla, Additional Public Prosecutor on behalf of the Respondent No.1. The Court made the following ORDER: C,N V THE HONOURABLE SRI JUSTICE N.TUKARAMJI This Criminal Petition is filed under Section 482 ot Code of Ciminal Procedure, 1973 (tor short 'CrPC') for quashment of orders dated 29.01.2024 in Crl.R.P.No.8 of 2023 on the file of the Principal Sessions Judge at Mahabubabad wherein the order dated 31'10'2023 passed in Crl.M.P.No.1384 ot2023 in C'C'No'436 ot2O14 on the file of the Additional Judicial Magistrate of First Class, at Mahabubabad has been affirmed.

2. I have heard Mr. Srinivasa Rao Pachwa, learned counsel for the petitionerandMr.JithenderRaoVeeramalla,learnedAdditionalPublic Prosecutor, representing the respondent No'1 -State'

3. The petitioner, being lhe de facto complainant' assails the concurrent findings of the courts below. The prosecution had moved an application under Section 159 of the lndian Evidence Act' 1872 ('the IEA'), seeking the court's permission to allow the de facto complainant' during his chief examination, to refer to the materials and documents ' annexed to his complaint. The application was premised on the ground that, due to the petitioner's advanced age and aftendant health ailments, such reference was essential to facilitate and accurately aid his testimony. The trial court dismissed the application, holding that a -J I 2 NTR,J C.lp_3082_2024 witness is not permifted to depose by reading from a document. ln revision, the Sessions Court affirmed this view. Aggrieved by these concunent orders, the present petition has been instituted.

4. Learned counsel for the petitioner submits that Section 159 of the lndian Evidence Act, 1972, expressly permits any witness to refresh his memory during the course of evidence, including at the stage of chief examination, without any restriction. ln the present case, the transaction in question took place in the year 2005, i.e., nearly eighteen years ago lt is, therefore, reasonable and necessary for the witness to refer to the relevant documents to accurateiy recall the iacts. Counsel contends that denying the witness the opportunity to peruse such documents for the purpose of refreshing his memory would cause prejudice to the prosecution,s case, as an incomplete or inaccurate recollection mighl arise. Moreover, the defence would retain its full right to test the veracity of the witness,s testimony through cross_ examination. Accordingly, it is urged that the petitioner ought to have been permifted to peruse the documents, as prayed for, during his chief examination. rn support of this contention, rearned counsel has placed reliance on the following authorities: (i) Ralesh Jha v. State of U.P.,2019 SCC OnLine Afi S013, and (ii) Sfafe of A.p. v. Chimalapati ' " GaneshwarRao, AIR ,1963 SC 1BSO ( (. 3 MT&J Crlp_3082_2024

5. Learned Additional Public Prosecutor fairly submits that the statutory provision itself permits a witness.to peruse documents for the purpose of refreshing his memory. Considering that the transaction in question occurred nearly two decades ago, it is contended that permitting the oetitioner to do so strictly to the extent permissible under the provision would adequately serve the ends of justice.

6. None appeared for the respondent No.2.

7. I have perused the materials on record.

8. The petitioner, who is the de facto complainant' seeks the Court's permission to refer to the documents on record for the purpose of refreshing his memory. lt is undisputed that the transaction in question took place in the year 2008, and a e,onsiderable period of time has since elapsed.

9. Before proceeding to examine the merits of the case, it is appropriate to first consider the scope and import of the relevant statutory provision. For a clearer appreciation, Section 159 of the lndian Evidence Acl, 1872, is reproduced below: '159. Refreshing memory. A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the ' Court considers it likely that the transaction was at that time fresh in his m.mory. The witness may also refer to any such writing made by any other person and read by the witness within the time aforesaid, if when he read it \ 4 NTR,J Olp_3082_2024 he knew it to be conect. When witness may use copy of document to refresh his memory. - Whenever a witness may refresh his memory by referen@ to any documenl, he may, with the permission of the Court, refer to a copy of such document :Provided the Court be satisfied that there is sufficient reason for the non-production of the original. An expert may refresh his memory by reference to professional treatises.'

10. The above provasion sets out the manner in which a witness may refresh his memory during examination. lt permits a witness to refer to any writing made by himself at the time of the transaction in question, or soon thereafter, or to any such writing made by another person. provided it was adopted or verified by the witness within a reasonable time of the transaction. lt has also been judicially held that it is not necessary for the writing referred to be one that is otherwise admissible in evidence. Even a document that has not been produced in court within the prescribed time may be used by a witness to refresh his memory, if it falls within the ambit of this section. However, the court is not entitled to take cognizance of the substantive contents of a document that is inadmissible in evidence merely because it was referred to by a witness for the limitecl purpose of recalling, for instance, a date or other factual detail. The mere act of handing over a document to a witness for refreshing his memory does not, by itself, render that document a part of the evidentiary record. Section 161 of the IEA makes it clear that the opposite party has the right to inspect any writing so used by a witness and to cross-examine f ( 5 Mr&l Crlp_3G92-2024 the witness on it. This safeguard ensutes that the opposing party can fulty test the witness's recollection, guard against the use of improper documents, and, if necessary, c,ompare the oral testimony with the written material referred to. lt must also be noted that Section 159 of the IEA does not permit a witness to depbse by continuously reading from a document.

11. ln this context, the Hon'ble Supreme Court, in Cheemalapati Ganeshwaru Rao (supra), observed as follows: "S. 159 expressly enables a witness while under examination to refresh his memory by refening to any writing made by himself al the time of the transaction conceming which he is being questioned or soon afterwards, or to a writing made similarly by another person and read by the witness immediately or soon after the writing was made. Section 160 provides that a witness may also testify to the facts mentioned in any such document as is mentioned in S. 159. ...........|n our opinion, where a witness has to depose to a large number of transactions, and those transactions referred to are or mentioned either in the account books or in other documents there is nothing wrcng in allowing the witness to refer to lhe account bo6ks and the documents while answering the questions put to him in his examination. He cannot be expected to remember every transaction in all its details and s- 160 speciftcally permits a witness to testify the facts mentioned in the documents reEned to in s. 159 although he has no recollection of the hcts themselves if he is sure that the facb were correctly recorded in the document........'

12. ln Mohammed Abdul Wahid vs Nitofer - 2024(21 SCC 144 in paras 35 it is held as under: '35. To conclude the issue at hand - the freedom to produc€ documents tor either of the two purposes i.e. cross-examination of witnesses and/or 6 irr&J Crlp_3082*2024 refreshing the memory would serve ib purposes tor parties to the suit as well. Additionally, being precluded from effectively putting questions to and receiving answers from either party to a suit, with the aid of these documents will put the other at risk of not being able to put forth the complete veracity of their claim-thereby fatally compromising the said proceedings. Therefore, the proposition that the law differentiates between a party to a suit and a witness for the purposes of evidence is negated."

13. Thus, section 159 of the IEA is intended solely as an aid to a witness's recollection, and its application is subject to conditions relating to its purpose, timing, and the court,s judicial discretion. Considering these aspects, and subject to the above limitations, the trial cou't is cirected to permit the petitioner to peruse the rerevant documents for refreshing his memory at the time of his examination within the limits prescribed under the provision, to peruse the relevant documents while deposing is not found objectionable. 14. Accordingly this petition is ordered in the following terms: (a) The petitioner is entifled to refer the documents prepared at the time of the transaction or soon thereafter and the kial court shall exercise its judicial discretion in determining the admissibility and scope of such reference in each instance. (b) ll is, however, expressly clarified that any document used merely to refresh the witness's memory cannot, by that fact alone, be treated as independent evidence. unress such a document is otherwise \ ( 7 MTRJ c,lp_3@2_2024 duly proved in acc,ordance with law, it shall have no evidentiary value in itself. Furthermore, the allowance to refresh memory does not permit the witness to read directly from the document as if it were his testimony. The witness must, after refreshing his memory, depose orally based on his recollection. (c) lt is further clarified that while a witness may use his own contemporaneous writings, as well as notes or records made by another person, for the limited purpose of refreshing his memory under this provision, such use is confined to the course of oral examination in couft and cannot be invoked in affidavit evidence.

15.. ln the above terms, this petition is allowed Pending miscellaneous applications, if any, shall stand closed. sD/- MOHD. rSillAlL DEPUTY Class, Mahabubabad. oPUC) Telangana at Hyderabad To,

1. The Principal Sessions Judga at Mahabubabad. 2. ffice of the Additional Judicial Magistrate of First 3. One CC to Sri Srinivasa Rao Pachwa, Advocate ( 4. The Public Prosecutor, High Court for the State of (our)

5. 2 CD Copies. t6, 3t08t2025 mEt{t CRLP.No.3082 of 2A24 1ii i: li r.1 l, 0 3 Et[ 29,-1 l. :l ,l CRIMINAL PETITION IS ALLOWED I rc lt $