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1961 DIGILAW 59 (GUJ)

Apabhai Hemabhai Patel v. State of Gujarat

1961-06-16

BAKSHI, RAJU

body1961
Judgement RAJU, J. :- In this Criminal Appeal No. 428 of 1960 we propose to exercise our powers under Sec. 428 of the Criminal Procedure Code for the following reasons : 2. The appellant was charged with having committed misappropriation in respect of an amount of Rs. 1000/- out of an amount of Rs. 2069-11-0 deposited in Darkhast No. 6 of 1962 as poundage fee to be credited to Government. The entries in the 'D' Register showing the payment of Rs. 1000/-show that Rs. 1000/- were paid to one Receiver Mr. J. C. Shah on 11-9-1953. But there is a conflict as to the particulars shown in two columns. Then in column 5 the entry in the 'C' Register is shown No. 1075 and in the next column, the darkhast number is shown as No. 26 of 1962. If the entry in the first column is correct, viz. entry No. 1075, that entry in the 'C' Register would show that it related to Darkhast No. 6 of 1952; whereas the next column shows the Darkhast as No. 26 of 1952. The prosecution, however, did not produce the darkhast proceedings of Darkhast No. 26 of 1952 in order to show that there was no order of the Court to pay Rs. 1000/- to J. C. Shah in Darkhast No. 26 of 1952. They had produced a part of the darkhast proceedings in Darkhast No. 6 of 1952. In the case like this, they should have produced the entire darkhast proceedings of Darkhast No. 6 of 1952 and Darkhast No. 26 of 1952 in order to prove that the payment was unauthorized and therefore, contrary to the trust in which the accused was entrusted with Government moneys. It is true that if the additional evidence is unfavourable to the appellant, it would be filling the gap in the prosecution case. But there is nothing in Sec. 428 which provides that the additional evidence can be taken only if it favours the defence and not if it favours the prosecution. What the Court is to be satisfied is whether the additional evidence is necessary in the interests of justice. In the instant case, the additional evidence we propose to call for is merely documentary evidence. In fact, one of the witnesses Bhudardas has deposed in paragraph 23 of his deposition that in Exs. What the Court is to be satisfied is whether the additional evidence is necessary in the interests of justice. In the instant case, the additional evidence we propose to call for is merely documentary evidence. In fact, one of the witnesses Bhudardas has deposed in paragraph 23 of his deposition that in Exs. 36 and 47 the last column purports to bear the signature of receiver J.C. Shah. But he added that no man of the name of J.C. Shah was a receiver in those proceedings at that time. It is not clear whether the witness was referring to the proceedings in Darkhast No. 6 of 1952 or Darkhast No. 26 of 1952. The learned Government Pleader has stated that he must have looked into the proceedings of Darkhast No. 6 of 1952 and Darkhast No. 26 of 1952 before answering that no man of the name of J. C. Shah was a receiver in those proceedings. According to the learned Government Pleader, the witness is entitled to look at the proceedings and tell the Court what those proceedings contained or did not contain. The proceedings are documents and the contents of documents must be proved by primary evidence except where secondary evidence is admissible. The primary evidence of a document is the production of the document itself. Section 64 of the Evidence Act provides that documents must be proved by primary evidence except in the cases mentioned, in the Evidence Act. Section 62 of the Evidence Act provides that primary evidence means the document itself produced for the inspection of the Court. Sub-section (g) of Section 65 of the Evidence Act, however, provides that secondary evidence may be given of the contents of a document when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Courts, and the fact to be proved is the general result of the whole collection and in such cases, evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. It is clear from the wordings of sub-section (g) that the instant case does not fall under sub-section (g). It is clear from the wordings of sub-section (g) that the instant case does not fall under sub-section (g). It is, therefore, not open to the prosecution to lead oral evidence as to what was contained or what was not contained in the proceedings in Darkhast No. 6 of 1952 or Darkhast No. 26 of 1952. The prosecution should have produced the proceedings themselves and shown them to the Court for inspection by the Court as provided in Section 64. We, therefore, propose to call for the darkhast proceedings of Darkhast No. 6 of 1952 and the darkhast proceedings of Darkhast No. 26 of 1952 in the Court of the Civil Judge (Senior Division) at Ahmedabad. 3. We also find that certain registers viz. 'C' and 'D' Registers were marked A, A1, B and B1 by the learned Sessions Judge at the Sessions trial, but he has not given them exhibit numbers. He has allowed copies of the entries in those registers to be exhibited in evidence. Two of the registers are copies of 'C' and 'D' Registers which were sent to the Accountant General. It appears that the four registers were produced in original in the Sessions trial and although they were marked as A, A1 and B, B1, they were not exhibited in evidence. It is necessary to look at these registers also in the interest of the prosecution as well as in the interest of the defence. If there are any entries in these registers supporting the case of the defence, we would certainly look at them. We, therefore, order that darkhast proceedings in Darkhast No. 6 of 1952 and Darkhast No. 26 of 1952 should be called for from the Court of the Civil Judge (Senior Division) at Ahmedabad. The Additional Sessions Judge, Nadiad should send the documents marked A, A1 and B, B1 in Sessions Case No. 29 of 1960. 4. The learned Government Pleader should give the appellant copies of entries in 'C' and 'D' registers from 10-9-1953 to 30-10-1953. The learned counsel for the appellant also wants copies of darkhast proceedings Nos. 6 of 1952 and 26 of 1952, but we feel that those documents relate to entirely irrelevant matters. The only point to be considered in these proceedings is whether Mr. J. C. Shah was appointed as a receiver and whether the Court passed an order for payment of Rs. 6 of 1952 and 26 of 1952, but we feel that those documents relate to entirely irrelevant matters. The only point to be considered in these proceedings is whether Mr. J. C. Shah was appointed as a receiver and whether the Court passed an order for payment of Rs. 1000/- to him. For this purpose, it is unnecessary to consider the contents of other documents in the darkhast proceedings. We, therefore, see no ground to order that copies of those documents should be given to the appellant. Order accordingly.