Gurbir Singh v. Mahesh Inder Singh & Ors.

against the respondents-accused, vide FIR No.166 dated 4.11.1993, on accusation of having committed the offences punishable under sections 420, 465, 471 and 120-B IPC by the police of Police Station Division No.5, Ludhiana. During the investigation of the case, the DIG Ludhiana Range ordered to submit the cross challan against the complainant-petitioner as well.

2. After completion of the investigation, the cross challans were submitted against the complainant party and the accused party. The trial Court framed the charges against the accused on 20.9.1999, vide charge sheet (Annexure P6) and the case was slated for evidence of the prosecution. Thereafter, the trial court almost concluded the trial. Now the case is fixed for arguments.

3. During the pendency of the criminal case, an application (Annexure A2) was moved on behalf of the prosecution for permission to lead secondary CRM No.M-19670 of 2009 2 evidence under section 65 of the Indian Evidence Act (for short “the Act”). The trial Magistrate dismissed the same, by virtue of order dated 18.9.2007 (Annexure P7).

4. The State of Punjab did not challenge the order (Annexure P7), but aggrieved by the same, the petitioner Gurbir Singh filed the revision petition, which was dismissed as well by the revisional Court, vide order dated 2.6.2009 (Annexure P8).

5. The petitioner still did not feel satisfied and filed the present petition for quashing the impugned orders (Annexures P7 and P8), invoking the provisions of section 482 Cr.PC. That is how, I am seized of the matter.

6. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant petition.

7. Ex facie, the argument of the learned counsel for the petitioner that since the production of secondary evidence is essential to prove the documents, so, the Courts below ought to have accepted the prayer of the prosecution, is neither tenable nor the observations of Hon'ble Apex Court in cases Nawab Singh v. Inderjit Kaur, AIR 1999 Supreme Court 1668; Aher Rama Gova and others v. State of Gujarat AIR 1979 Supreme court 1567 and this Court in cases Mohit Batra v. Shalu 2007(1) Civil Court Cases 317 (P&H) and Ram Sahai Sood v. Om Parkash Sood & Ors.2005(3) Civil Court Cases 623 (P&H), are at all applicable to the present controversy.

8. In Nawab Singh's case (supra), the original rent note was in possession of the landlord. The production of copy of rent note was rejected on the ground that the said note sought to be produced was of doubtful veracity. Then the tenant was held entitled to lead secondary evidence to prove the rent note.

9. Sequelly, in Aher Rama Gova's case (supra), it was observed that if the original dying declaration was clearly lost and not available, then the CRM No.M-19670 of 2009 3 prosecution is entitled to give secondary evidence to produce the dying declaration. The similar view, that if the case is covered under section 65 of the Act, then the party is entitled to lead secondary evidence, was reiterated by this Court in Mohit Batra and Ram Sahai Sood's cases (supra).

10. Possibly, no one can dispute with regard to the aforesaid observations, but the same would not come to the rescue of the petitioner in this relevant connection in the instant case.

11. As is evident from the record that originally, on the basis of complaint (Annexure P5) of the complainant-petitioner, the present case was registered against the accused, in the manner indicated here-in-above. During the investigation, the DIG Ludhiana Range also ordered to submit the cross challan against the complainant-petitioner. Thereafter, the cross challans were submitted against the complainant party and the accused party. The trial Court framed the charges against the accused on 20.9.1999, vide charge sheet (Annexure P6) and the case was slated for evidence of the prosecution. It is not a matter of dispute that the trial was concluded and now the case is fixed for arguments.

12. What is not also disputed here is that the State did not challenge the order (Annexure P7) of the Magistrate and order (Annexure P8) of Revisional Court. According to the prosecution that the respondents-accused filed written statement in civil suit titled as “Guru Nanak Education Trust Vs. Balbir Singh and others”, where the copy of the resolution dated 7.9.1993 and photo copy of letter dated 29.7.1993, allegedly written by Jaswinder Singh Grewal were also annexed with it. The production of these documents and comparison of signatures of Jaswinder Singh with the photo copy of sale deed dated 27.2.1991, by way of secondary evidence, were claimed to be essential for the just decision of the criminal cases. On the basis of aforesaid allegations, the prosecution sought permission to produce secondary evidence to prove the indicated documents. The respondents-accused contested the claim of the petitioner and stoutly denied all CRM No.M-19670 of 2009 4 allegations contained in the application (Annexure A2) and prayed for its dismissal.

13. Such thus being the position on record, now the short and significant question, though important, arises for determination in this petition, is as to whether the prosecution is entitled to lead secondary evidence or not in this context.

14. Having regard to the rival contentions of the learned counsel for the parties, to me, no case for leading secondary evidence is made out. Section 65 of the Act postulates that “secondary evidence may be given of the existence, condition, or contents of a document, inter-alia, when the original is shown to be in possession of the person against whom the document is sought to be proved and when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time.” That means, permission to lead secondary evidence can only be granted if the case squarely falls within the ambit and purview of section 65 and not otherwise, which are totally lacking in the present case.

15. In the instant case, the prosecution sought permission only on the basis of photo copy of resolution dated 7.9.1993 and letter dated 29.7.1993 allegedly written by Jaswinder Singh Grewal, which were attached with the written statement in some civil suit. It has no where been mentioned in the application as to how and in what manner, who was in possession of the original resolution dated

7.9.1993 and original letter dated 29.7.1993 or those have been destroyed or lost, particularly when the respondents have stoutly denied the same. The mere production of photo copies of these documents with the written statement in some civil suit, ipso facto, is not a ground to allow the production of secondary evidence unless all the essential ingredients as envisaged under section 65 of the Act are complete. CRM No.M-19670 of 2009 5

16. There is another aspect of the matter, which can be viewed from a different angle. The trial Magistrate has dismissed the application under section 65 of the Act, by way of order (Annexure P7), the operative part of which is as under:- “ I have heard the arguments and gone through the file carefully. Accused has denied the fact that original resolution dated 7.9.1993 and letter dated 29.7.1993 which are material in the present case are in their possession. Rather they alleged that the same are in possession of the Chairman and Secretary of the Guru Nanak Education Trust. There is weight in the arguments of ld.defence counsel as original documents of the Trust i.e.resolution is required to be in possession of Secretary of the Trust and it has not come on record that the original resolution dated 7.9.1993 is not with the Secretary or the other custodian of the record of the Trust and as far as letter dated 29.7.1993 is concerned, as per the application, the same was addressed to the President, Guru Nanak Education Trust. So the same should be in possession of the President of Guru Nanak Education Trust and there is no averment in the application that the original is not in possession of the President of Guru Nanak Education Trust. As such when non-availability of the original documents is not properly explained, no case is made out for allowing secondary evidence to prove resolution dated 7.9.1993 and letter dated

29.7.1993. As far as sale deed No.9914 dated 27.2.1991 alleged to have been executed by Jaswinder Singh is concerned, the same cannot be in possession of Jaswinder Singh. Rather the same is rightly pointed out by the accused that it should have been in possession of vendee and there is no evidence on record that the same is not available now with the vendee. As such no case is made out for allowing secondary evidence of that sale deed dated 27.2.1991. As such the application of the prosecution under section 65 of Indian Evidence Act is dismissed.” The aforesaid order (Annexure P7) was upheld by the Revisional Court, vide order (Annexure P8).

17. Meaning thereby, the trial Magistrate has recorded the valid reasons in dismissing the application for permission to lead secondary evidence and such CRM No.M-19670 of 2009 6 articulated orders cannot legally be set aside in exercise of limited jurisdiction of this Court under section 482 Cr.PC, unless the same are illegal or without jurisdiction. No such patent illegality or legal infirmity has been pointed out in the impugned orders by the learned counsel for the petitioner. Therefore, his contrary arguments “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. Above all, no permission to lead secondary evidence can be granted at this belated stage, as it will reopen the entire case, particularly when it is fixed for arguments.

18. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.

19. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of the trial of the case, as there is no merit, therefore, the instant petition is hereby dismissed, in the obtaining circumstances of the case.

20. Needless to say that nothing observed, here-in-above, would reflect, in any manner, on merits of the main case, because the same has been so recorded for a limited purpose of deciding the present petition.

11.10.2010 (Mehinder Singh Sullar) AS Judge