A. Ravishankar Prasad v. State rep. by The Depu

In the High Court of Judicature at MadrasDated: 19.09.2011CoramThe Honourable Mr. Justice C.T.SELVAMCrl.Rc.No.1164 of 20111.A.Ravishankar Prasad Director, M/s.Prasad Properties and Investments P Ltd., No.30 (Old No.60), III Main Road, Gandhi Nagar, Adyar, Chennai-600 020.2.A.Manohar Prasad Director, M/s.Prasad Properties and Investments P Ltd., II Floor, Rahul Enclave, Cenotaph Road, II Lane, Alwarpet, Chennai-600 018. ... Petitioners/Accused 4 to A5..vs..State rep. byThe Deputy Superintendent of Police,CBI/BC & FC,Bangalore. ... Respondent/ComplainantPrayer:This Criminal Revision Petition is filed under Section 397 and401 of the Code of Criminal Procedure, to call for the records andsetaside the order dated 10.08.2011 made in C.C.No.82 of 2001 passedby the learned Principal Special Judge for CBI Cases, Chennai. For Petitioners : Mr.Sundarmohan for Mr.A.Natarajan For Respondent : Mr.N.Chandrasekar Special Public Prosecutor for CBI casesO R D E RThis revision arises against the order passed by the learnedPrincipal Special Judge for CBI cases, Chennai dated 10.08.2011, on amemo filed by the petitioners, who are the accused 4 & 5 in C.C.No.82of 2001 pending trial for the offences under Sections 120-B r/w. 420,467, 468, 471 IPC and u/s.13(2) r/w. 13(1)(d) of Prevention of https://hcservices.ecourts.gov.in/hcservices/ Corruption Act, 1988, objecting to the marking of certain documentswhich were seized under the seizure memo Ex.B630.2.The documents sought to be marked were orders passed by theCommercial Tax Department and it was contended that P.W.58, anofficial of the Vigilance Department could not speak to the contentsthereof. It was further informed that such documents were xeroxcopies and therefore, not primary evidence. It also was complainedthat it was the prosecution practice to mark inadmissible documentsor mark admissible documents through incompetent witness and make thewitnesses read the contents and record the same as evidence. It wasstated that the statement prepared by P.W.58 at the instance of theInvestigating Officer during investigation had been marked as Ex.P628and Ex.P629 in the case. Further, the contents thereof had been readover by the witness during examination, inspite of the objectionsmade by the defence. Therefore, the memo informed that the methodadopted in the cases by the CBI is in gross violation of settledprinciples of law relating to recording of evidence. 3.The respondent through the learned Special Public Prosecutorinformed that P.W.58 was a competent witness. The documents werexerox copies, certified by the officials of the accused company.They had been handed over in the presence of the witness P.W.58 andhence, he could speak to such fact. It was also contended thatEx.P628 and Ex.P629 were in the handwriting and under the signatureof P.W.58 and therefore, the same could be proved through him. Inresponse, it is contended that the company disputed the certificationof the documents by its officials and even if so, it would still bein the nature of secondary evidence. Section 63 of the Evidence Actwould have to be satisfied.1) The findings of the court below read as follows: "33.Now, coming back to the question ofadjudication of the present Memo filed by theaccused A4 and A5 in which the said accused hadtaken a stand that P.W.58 is not a competentwitness to vouchsafe for the contents of thedocuments and prosecution cannot mark the xeroxcopies of the documents without satisfying theconditions u/s. 65 of Evidence Act required forletting in secondary evidence. The same cannot besustained since the documents marked alreadythrough P.W.58 i.e. Ex.P.628 & Ex.P.629 are in thevery handwriting of P.W.58 and documents sought tobe marked not only bears the signatures ofofficial A.Mohana Sundaram, Internal Auditor,Gemini Colour Lab, Chennai, of the accusedcompany, but also bears the signatures of P.W.58.34.The specific case of the prosecution is https://hcservices.ecourts.gov.in/hcservices/ that the documents sought to be marked throughP.W.58 are the documents attested byA.Mohanasundaram, Internal Auditor of the accusedcompany, handed over to the I.O of this case atthe time of seizure proceedings in the presence ofP.W.58 who is in the box before this Court in themiddle of his chief examination in a case pendingright from 2001 onwards. It is also pertinent tonote here that it is not the case of the accusedthat the said A.Mohanasundaram is not theAccountant or Internal Auditor of the accusedcompany. It is also to be borne in mind that itis not the case of the defence that the documentswhich are sought to be marked on the side of theprosecution are forged documents. Therefore, thedocuments including attested xerox copies,certified carbon copies as in the present case canbe of course allowed to be marked. The words relevant and Facts in issue havebeen described u/s.3(2) of Indian Evidence Act."Relevant'- One fact is said to be relevantto another when the one is connected with theother in any of the ways referred to in theprovisions of this Act relating to the relevancyof facts. " Facts in Issue" – The expression ' factsin issue' means and includes any fact from which,either by itself or in the connection with otherfacts, the existence, non-existence, nature orextent of any right, liability or disability,asserted or denied in any suit or proceedingnecessarily follows". 36.The word 'Evidence' has also beendefined under section 3 of Indian Evidence Act,1872 which read as follows: "Evidence" – 'Evidence" means andincludes. 1) all statements which the Court permits orrequired to be made before it by witnesses, inrelation to matters of act under inquiry:2) (all documents including electronicrecords produced for the inspection of thecourt) Such documents are called documentaryevidence. 37.'Facts in issue' in this case is theseizure of documents by the I.O. in the presenceof P.W.58, handed over by A.Mohanasundaram, https://hcservices.ecourts.gov.in/hcservices/ Internal Auditor of the accused company. Asstated already as far as Ex.P.628 and Ex.P.629 areconcerned, P.W.58 is the author of the saiddocuments and the same are in the very ownhandwriting of P.W.58. Therefore, the objectionraised by the accused at para-6 of the memo is notmaintainable. As far as the objection raised atpara 3 of the memo with regard to Ex.P.630, it isa seizure memo u/s.172 of Cr.P.C. and P.W.58 hasevidently set his hand as a witness to the seizureproceedings conducted by the I.O. in the premisesof the accused, as per which para 8(c) of Ex.P.630also discloses that the person who handed over thedocument was A.Mohanasundaram, Official of theaccused company, with his signature and P.W.58 hassigned at the first and last page of Ex.P630.38.From the perusal of the seizure memos, itis also very clear that the documents were handedover by A.Mohanasundaram official of the accusedcompany in the presence of P.W.58 and he isevidently a party to the seizure proceedings andhe had identified the documents. Therefore, underthese circumstances, I am of the view that P.W.58is the competent witness to elicit the facts,nature of documents, who handed over the documentsto whom they were handed over, are the relevantfacts and facts in issue. Since, the documentshad been handed over by the said official of theaccused company which is of course fact in issueand the documents certified by him are admissibleas secondary evidence u/s.63 of Indian EvidenceAct.39.The contention put forth on the side ofthe prosecution that keeping in view of filing ofcases before the CBI courts, againstM.Gopalakrishnan and others, these documents whichare sought to be marked can be considered assecondary evidence under the light of Sec.63 ofIndian Evidence Act, also cannot be brushed asideas unsustainable.40.That apart, Sec.5 of Indian Evidence Actis also very explicit that 'Evidence may be givenof facts in issue and relevant facts'. Sec.5 ofIndian Evidence Act reads as follows:"Evidence may be given of facts in issue andrelevant facts:-Evidence may be given in any suit or proceedings https://hcservices.ecourts.gov.in/hcservices/ of the existence or non-existence of every fact inissue and of such other facts as are herein afterdeclared to be relevant, and of no others." It isalso cannot be lost sight of the fact that in thepresent case, the nature of documents handed overin the presence of P.W.58 to the I.O byA.Mohanasundaram by the official of the accusedcompany and they are also certified by him. Underthese circumstances, I am of the firm opinion thatP.W.58 is the competent witness to speak about thesame.41.More over, the documents in question arerelevant documents for the main case of theprosecution, which are of course, also listed inthe charge sheet and they are not strangedocuments coming out of the blue to the accused.All the documents are very much indispensablesince they were already reflected in the chargesheet to prove the case of the prosecution thatthey were seized during the seizure proceedings.With regard to vouchers they are also very muchrelevant to prove the case of the prosecution andthe accused cannot navigate the prosecution as towhom it has to choose as witnesses and to conductthe trial to mark the documents on its side.42.Now, coming back to the question withregard to non mentioning of certain facts in thestatement u/s.161 of Cr.P.C., of P.W.58 by theI.O. but it cannot be a ground to discard the veryevidence of particular witness. As per Sec.161 ofCr.P.C., examination of witnesses by the police,the I.O is given wide power to examine any personas a witness. Such person 'Shall' bound to answertruly all the questions relating to such case.Therefore, the usage of word 'Shall' makes itclear that it is 'Mandatory' on the part of thewitness to answer. Sec.161 (3) of Cr.P.C., speaksabout that the police officer may reduce inwriting any statement made to him in the course ofexamination under the said section. Therefore, itis quite apparent that each and every thing neednot be reduced into writing u/s.161(3) of Cr.P.C.by the I.O. Therefore, under these surroundingcircumstances, I am of the view that the factsknown to the witness P.W.58 can of course beallowed to be let in by this Court.43.To crown it all, it is also very pertinentto note here that there is no specific prayer in https://hcservices.ecourts.gov.in/hcservices/ the memo filed by the accused 4 & 5, to grant anyrelief. The decisions cited supra on the side ofthe accused 4 & 5 stands on different footingsaltogether as rightly contended supra on the sideof the prosecution and will not be applicable tothe facts of this case in which P.W.58 is found tobe a competent witness, in whose presence thedocuments were produced during search and seizureproceedings before the I.O. by the official of theaccused company to speak about the documents inquestion." We straight away will inform that the order of the court below cannotbe sustained. 1)P.W.58 is a witness to the seizure memo, he may speak theretoand inform what are the documents that were seized thereunder,whether xerox or original. He cannot speak to the contents of thedocuments, particularly where he has informed of no knowledge thereof.2)The statement tendered by him to the Investigating Officer andrecords prepared by him at the instance of the Investigating Officerwould be covered by Section 161 of Cr.P.C. Therefore, while settingaside the order under challenge, we would refer to the decision ofthe Hon'ble Apex Court in Bipin Shantilal Panchal Vs. State ofGujarat and another (2001 (3) SCC 1). It would be fit and proper forthe court below to follow the procedure informed in the said decisionwhich read as follows:-"13.It is an archaic practice that during theevidence-collecting stage, whenever any objectionsis raised regarding admissibility of any materialin evidence the court does not proceed furtherwithout passing order on such objection. But thefallout of the above practice is this: Suppose thetrial Court, in a case, upholds a particularobjection and excludes the material from beingadmitted in evidence and then proceeds with thetrial and disposes of the case finally. If theappellate or the revisional court, when the samequestion is recanvassed, could take a differentview on the admissibility of that material in suchcases the appellate court would be deprived of thebenefit of that evidence, because that was not puton record by the trial Court. In such a situationthe higher court may have to send the case back tothe trial Court for recording that evidence andthen to dispose of the case afresh. Why should thetrial prolong like that unnecessarily on accountof practices created by ourselves. Such practices, https://hcservices.ecourts.gov.in/hcservices/ when realised through the course of long period tobe hindrances which impede steady and swiftprogress of trial proceedings, must be recast orremoulded to give way for better substitutes whichwould help acceleration of trial proceedings. 14.When so recast, the practice which canbe a better substitute is this: Whenever anobjection is raised during evidence-taking stageregarding the admissibility of any material oritem of oral evidence the trial Court can make anote of such objection and mark the objecteddocument tentatively as an exhibit in the case (orrecord the objected part of the oral evidence)subject to such objections to be decided at thelast stage in the final judgment. If the courtfinds at the final stage that the objection soraised is sustainable the Judge or Magistrate cankeep such evidence excluded from consideration. Inour view there is no illegality in adopting such acourse. (However, we make it clear that if theobjection relates to deficiency of stamp duty of adocument the Court has to decide the objectionbefore proceeding further. For all otherobjections the procedure suggested above can befollowed.15.The above procedure, if followed, willhave two advantages. First is that the time in thetrial Court, during evidence-taking stage, wouldnot be wasted on account of raising suchobjections and the Court can continue to examinethe witnesses. The witnesses need not wait forlong hours, if not days. Second is that thesuperior court, when the same objection isrecanvassed and reconsidered in appeal or revisionagainst the final judgment of the trial Court, candetermine the correctness of the view taken by thetrial Court regarding that objection, withoutbothering to remit the case to the trial Courtagain for fresh disposal. We may also point outthat this measure would not cause any prejudice tothe parties to the litigation and would not add totheir misery or expenses.16.We, therefore, make the above as aprocedure to be followed by the trial Courtswhenever an objection is raised regarding theadmissibility of any material or any item of oralevidence." 4.In fact, it is the dictum of the Hon'ble Apex court that the https://hcservices.ecourts.gov.in/hcservices/ above procedure is to be followed by the trial court. For thepurpose of clarity, we may state that it would be open to the defenceto cross examine the witness on the document despite having objectedto the marking of the same. If the objection to marking of thedocument stands accepted, then the cross examination would have doneno harm. If the objection be not accepted, then the cross examinationmay in a proper case, serve the purpose of the defence. We wouldalso add that once objection is raised to the marking of a document,then it naturally follows that the prosecution would take notethereof and do the needful towards introducing proper mode of proofof the document and avoid contentions challenging the mode of proofat the fag end of the proceedings.With the above observation, the Criminal Revision Petitionstands allowed. Sd/ Assistant Registrar /True Copy/ Sub Assistant RegistrarDPTo1.The Principal Special Judge for CBI Cases, Chennai.2.The Deputy Superintendent of Police, CBI/BC & FC Bangalore. 3.Mr.N.Chandrasekar Special Public Prosecutor for CBI Cases, High Court, Madras. +1 CC to Mr.V.R.Ramesh Kumar, Advocate Sr.No.58346 Crl.R.C.No.1164 of 2011UG(CO)DRL : 04/11/2011