JAGDISHCHANDRA CHANDULAL SHAH v. STATE — 1986 DIGILAW 152 (GUJ)

B. S. KAPADIA, J. ( 1 ) THE present petition is directed against the order passed by the learned Metropolitan Magistrate Court No. 5 sit Ahmedabad on 4-9-86 on application filed in Criminal Case No. 1793183. ( 2 ) IN nutshell it may be stated that the petitioner who is the original complainant has filed the complaint in the court of learned Metropolitan Magistrate Court No. 5 Ahmedabad against the opponents No. 2 and 3 (original accused) for the offences under Section 420 read with Section 34 and/or Section 109 of the I. P. C. and the said complaint was registered as Criminal Case No. 1793/83. It is alleged that the is accused Nos. 1 and 2 who are present opponents Nos. 2 and 3 had previously sold land to one Mahobatsing Mansing Jadeja by a registered sale-deed and they suppressed this material fact from the present petitioner (original complainant induced the complainant to part with the amount of Rs. 72 500 ( 3 ) DURING the course of the proceedings an application 5 as preferred for producing certain documents and for exhibiting the same if the other side i. e. the accused have no objection. The said application was filed by the original complainant. Along with the said application be has produced 14 documents as described therein. Before the learned Magistrate the dispute was with regard to exhibiting of documents at Sr. Nos. 4 6 9 and 12. The learned Magistrate by his ordered dated 4-9-86 dismissed the said application in respect of the aforesaid four documents on the ground that they are not public documents and therefore the contents there of cannot be proved by the certified copies thereof. ( 4 ) AT the time of hearing Mr. A. D. Shah learned Advocate for the petitioner has pressed his application only for the documents at Sr. Nos. 6 and 9. So for as the document at Sr. No. 6 is concerned it is the certified copy of the sale-deed of the disputed land executed in favour of Mahobatsing Mansiug Jadeja on 19-12-1970. The document at Sr. No. 9 is the certified copy of the plaint in Civil Suit No. 22/89 filed by the complainant against said Mahobatsing Mansing Jadeja and it is dated 6 ( 5 ) MR. A. D. Shah further submits that the certified copies of the said two documents i. e. documents at Sr. Nos. The document at Sr. No. 9 is the certified copy of the plaint in Civil Suit No. 22/89 filed by the complainant against said Mahobatsing Mansing Jadeja and it is dated 6 ( 5 ) MR. A. D. Shah further submits that the certified copies of the said two documents i. e. documents at Sr. Nos. 6 and 9 are admissible in evidence as they fall within the category of public documents and; contents thereof can be proved under Section 77 of the Evidence Act by producing certified copies thereof. ( 6 ) IT may be stated that so far as the proving of the contents of the documents is concerned it is provided in Chapter-V of the evidence Act. Section 61 of the Evidence Act provides that contents of the documents may be proved either by primary or secondary evidence. Section 62 of the Evidence Act defines what is primary evidence. Primary Evidence means the document itself produced for the inspection of the court. The definition of secondary evidence inter alia includes the certified copies given under the provisions contained in the said Act. Section 63 of the said Act also provides that secondary evidence may be given of the existing condition or contents of document in the cases enumerated therein inter alia when the original document is a public document within the meaning of Section 74 of the said Act and when the original is a document of which a certified copy is permitted by this Act or by and other law in force in India to be given in evidence. So secondary evidence in respect of a document can be given by certified copy of the document inter alia in cases enumerated in clauses (e) and (f) of Section 65 of the said Act and in cases falling under clauses (e) and (f) of Section 65 of the Act the certified copy of the document and no other kind of secondary evidence is permissible. Section 74 of the said V Act specifies the documents which are public documents and sub-section (2) of Section 74 provides that public records kept in State of private documents are public documents. Private documents are defined as those documents which are not falling within the category of public documents. Section 74 of the said V Act specifies the documents which are public documents and sub-section (2) of Section 74 provides that public records kept in State of private documents are public documents. Private documents are defined as those documents which are not falling within the category of public documents. Section 77 of the said Act provides that such certified copies may be produced in proof of the contents of the public document or parts of public documents or which they purport to be copies. ( 7 ) FROM the above provisions of the Evidence Act it is clear that there might be private documents but if public records thereof are kept in any State then such public records of the private documents would be public documents and therefore certified copies of such documents can also be produced in proof of the contents of the private documents of which public records are kept. Initially such documents might be private documents and such private documents never change the character as private documents but if public records thereof are kept then such public records of such private documents kept by the State would be public documents and therefore though they might be copies of private documents kept in the public record they would be public documents and hence the contents thereof can be proved by producing certified copies thereof: ( 8 ) IN support of his submission Mr. A. D. Shah has relied on the judgment of the Calcutta High Court in the case of Tarit Kanti Biswas Printer and of the Amrita Bazar Patrika and others reported in 19-Criminal Law Journal 530. In the said case it was contended that as regards Mrinal Ghose and Golap Lal Ghose there is no proof that they are directors notwithstanding that their co-director and secretary have sworn that they are and they have themselves declined to give any information on any point to the Court. The said argument was based on the contention that certified copy of the summary filed on the 9th May 1917 of share capital and shares etc. as they stood on 5th March 1917 purporting to be signed by Golap Lal Ghose as financial manager was not admissible. Thereafter there is discussion about the word record occurring in sub-section (2) of Section 74. Similar observations are also made on page 584 of the said judgment. as they stood on 5th March 1917 purporting to be signed by Golap Lal Ghose as financial manager was not admissible. Thereafter there is discussion about the word record occurring in sub-section (2) of Section 74. Similar observations are also made on page 584 of the said judgment. After referring to the Oxford Dictionary meaning of the word record which includes collection of documents it is observed that where as in the case of the Indian Companies Act the Legislature has provided that returns are to be lodged with a public officer these returns when transmitted to and filed by him do constitute public records of private documents within the meaning of sub-section 2 of Section 74 although they are not copied out by the Registrar of Joint Stock Companies into a volume kept for the purpose; they are undoubtedly intended for reference and use by the public. ( 9 ) IN the said case it was further observed that the second exception is well-founded; for although secondary evidence may be admissible the party who produces the evidence is not relieved of his obligation to prove the execution or the document just as if the original had been produced unless the case is covered by Section 90 of the Indian Evidence Act. ( 10 ) SIMILAR observations are made in respect of mortgage documents by the Bombay High Court in the case of Vithoba Savlaram v. Shrihari Narayan A. I. R. (32) 1945 Bombay 319. In the said case it is observed that mortgage deed is under Section 74 of the Evidence Act a public document because public records of mortgages are kept in British India and under Section 65 secondary evidence can be given when the original is a public document; and under Section 77 certified copies may be produced in proof of the contents of public documents. Therefore by producing a certified copy the contents of the mortgage deed can be proved. As the original document was more than thirty years old the question of statutory presumption under Section 90 arose and it was observed in the said case by Chagla J. (as he then was) that the statutory presumption under Section 90 can be raised only with regard to the actual document produced in the Court. As the original document was more than thirty years old the question of statutory presumption under Section 90 arose and it was observed in the said case by Chagla J. (as he then was) that the statutory presumption under Section 90 can be raised only with regard to the actual document produced in the Court. No presumption under Section 90 can be raised with regard to the original document by the production of a certified copy of the same when the original document is not before the court In the said case it is further observed that all that the Evidence Act does is that it permits secondary evidence to be given of a registered document because it is a public document within the meaning of Section 74 and under Section 74 it provides that certified copies may be produced in proof of the contents of the public documents. All that a certified copy does is that it authenticates the genuineness of the copy. The Court presumes that the original document had the same contents as the copy. It certainly does not prove the actual execution of the original document. It is therefore held that the actual execution of the mortgage deed was not proved by the secondary evidence that was tendered by the plaintiff in the courts below. ( 11 ) FURTHER it may be mentioned that Section 17 of the Registration Act inter alia provides that when there is any document of sale of immoveable property for the value of more than Rs. 100/- it requires compulsory registration. Secction 51 of the Registration Act provides that the following books shall be kept in the several offices: a-in all registration offices:book 1 Register of non-testamentary documents relating to immovable propertybook 2 Record of reasons for refusal to registerer of wills and authorities to adopt andbook 4 Miscellaneous Registersection 52 of the Registration Act provides for duties of the registering officer when the document is presented for registration. Section 52 also inter alia provides that subject to the provisions of Section 62 every document admitted to registration -shall without unnecessary delay be copies in the book appropriated therefor according to the order of its admission. Section 52 also inter alia provides that subject to the provisions of Section 62 every document admitted to registration -shall without unnecessary delay be copies in the book appropriated therefor according to the order of its admission. Section 57 of the Registration Act provides that the books No. 1 and 2 and the index relating there to relating to Book No. 1 shall be not at all times open to inspection by any person applying to inspect the same and subject to provisions of Section 62 copies of entries in such books shall be given to all persons applying for such copies. Sub-section (5) of Section 57 provides that all copies given under this section shall be signed and sealed by the registering officer and shall be admissible for the purpose of proving the contents of the original documents. When that is the legal position the document at Sr. No. 6 which is the certified copy of he sale-deed in inspect of the disputed land would be a public document and therefore admissible for the purpose of proving the contents of the original document. However it is clarified that whenever the question of execution of same arises it will be required to be proved according to law. ( 12 ) SO lal as the document at for No. 9 is concerned it is the certified cops of the plaint filed against Mahobatsing Mansingh Jadeja by the complainant and it is a public document as it forms part of the record as held by the High Court in the case of Mohmed Sahabudin v. Vadgeberry reported in 10 L. R. (appeal) and 31 and therefore that is also admissible in evidence for the However when the question arises with regard to the signature thereon it will be required to be proved in the same manner in which execution of the document is to be proved. ( 13 ) IN view of the aforesaid reasons the order passed by the learned Metropolitan Magistrate Court No. 5 at Ahmedabad on 4-9-1986 in Criminal Case No. 1793 of 1983 in respect of the documents at Sr. Nos. 6 and 9 deserves to be quashed and set aside and is hereby quashed and set aside. The learned Magistrate is directed to treat the said documents as admissible for the purpose of proving the contents thereof. Rule is accordingly made absolute to the aforesaid extent only. Nos. 6 and 9 deserves to be quashed and set aside and is hereby quashed and set aside. The learned Magistrate is directed to treat the said documents as admissible for the purpose of proving the contents thereof. Rule is accordingly made absolute to the aforesaid extent only. Rule made absolute to the extent indicated. .