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2009 DIGILAW 546 (PNJ)

Manohar Lal v. Rajwant Singh

2009-03-20

HARBANS LAL

body2009
JUDGMENT Harbans Lal, J. - This revision is directed against the judgment rendered by the Court of learned Judicial Magistrate First Class, Jalandhar, whereby he acquitted the accused Rajwant Singh of the charge under Section 406 of Indian Penal Code by giving benefit of doubt. 2. The facts in brief are that on 23.7.1997, Manohar Lal son of Sadhu Ram, Proprietor M/s Kissan Trading Company, Booth No. 5, New Grain Market, Jalandhar, moved a complaint. before the police containing the allegations that on 12.6.1997, he purchased 305 bags of sun flower seeds each weighing 40 kg worth Rs. 1,22,542/- and the Bardana worth Rs. 3050/- for supplying the same to M/s Bathinda Chemicals Limited, Bathinda. He approached Rajwant Singh, the owner of M/s R.S. Roadlines, Nakodar Road near Television Tower, Jalandhar, who consented to send the goods to Bathinda by his truck bearing registration No. PB-04-1019 and charged Rs. 2460/- as freight from him. The truck was weighed at the Baweja Dharam Kanda on 12.6.1997 vide receipt No. 7730, whereafter the goods were loaded in the truck in the New Grain Market and the gate pass bearing No. 8 dated 12.6.1997 was issued by the Market Committee. The truck left for Bathinda. The goods receipt bearing No. 1506 dated 12.6.1997 was issued, but the goods did not reach the destination. Thenceforth, he repeatedly visited Rajwant Singh, but in vain. The FIR was registered. The accused was arrested on 23.11.1997. After completion of investigation, the charge-sheet was laid in the Court of learned Illaqa Magistrate for trial of the accused, who was charged under Section 406 of Indian Penal Code to which he did not plead guilty and claimed trial. 3. To bring home guilt against the accused, the prosecution examined Manohar Lal PW1, Head Constable Sardool Singh PW2, Bikkar Singh PW3, Sarabjit Singh PW4, Gurdev Singh PW5 and Harbahajan Singh PW6. In consequence of failure of the prosecution to conclude its evidence despite there being last opportunity, it was shut out by order of the Court. When examined under Section 313 of Criminal Procedure Code, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. In defence, he examined Swaran Singh DW1 and closed the defence evidence. When examined under Section 313 of Criminal Procedure Code, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. In defence, he examined Swaran Singh DW1 and closed the defence evidence. After hearing the learned Assistant Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court acquitted the accused-respondent by giving a benefit of reasonable doubt. Feeling aggrieved with his acquittal, this revision has been preferred by the complainant-revision-petitioner. 4. None has come forward to argue on behalf of the accused-respondent No. 1. I have heard the learned counsel for the revision petitioner as well as Mr. T.S. Salana, Deputy Advocate General, Punjab, besides perusing the record with due care and circumspection. 5. Mr. Padam Jain, Advocate appearing on behalf of the revisionist urged with a good deal of force that the accused-respondent No. 1 is running the business of transport and that being so, he is a common carrier within the ambit and scope of the Common Carriers (By Road) Act, 1865 (for short, the Act) under which the carrier is always presumed to be negligent and the burden of proof lies upon the carrier. The accused-respondent here being a common carrier (truck operator) engaged in the business of transporting the goods by road was further bound to prove that the goods were delivered on the destination to the consignee. Herein, he has failed to discharge this onus and sequelly the guilt is established against him. The learned trial Court has gravely erred in non- suiting the revisionist merely on the ground that the originals of Ex.P.1 to Ex.P.5 have not been produced, though the same were in possession, power and control of the adversary on whom no notice was required to be served to produce the same. He had been emphatic in the course of arguments that in view of the provisions of Section 9 of the Act, it was not necessary for the revision petitioner to prove that the non-delivery of the bags containing sunflower seeds to M/s Bathinda Chemicals Limited, Bathinda was owing to the negligence or criminal act of the accused-respondent or his servants or agents. 6. On giving a deep and thoughtful consideration to these submissions, I find that these carry no substance for the reasons to be recorded hereinafter. 7. 6. On giving a deep and thoughtful consideration to these submissions, I find that these carry no substance for the reasons to be recorded hereinafter. 7. As a matter of fact, the revisionist was to succeed on the basis of the original of Ex.P.1 to Ex.P.5 which were the material documents to determine the real controversy. It is in the cross-examination of Manohar Lal PW1 complainant that "The original of Ex.P3 is with the accused. I have not seen the original of Ex.P3 and P2, P1, P4 and P5 neither on 24.3.1999 nor today. Ex.P3, P1, P4, P2 and P5 are the photostat copies. These copies are not attested by any competent authority." As is borne out from the evidence of this witness, when the weighment of the goods in dispute duly loaded in the truck was got done on the Dharam Kanda on 12.6.1997, the original of Ex.P1 was issued. The original of Ex.P2 was the gate pass. It is also in his evidence that the gate pass was handed over to the accused, who had then dispatched the truck to Bathinda and had issued the eceipt Ex.P3 on 12.6.1997 in his favour. This evidence in itself speaks volumes of the fact that the original of Ex.P3 was handed over to the revision petitioner. Thus it does not lie in his mouth to contend that the original of Ex.P3 being in the possession of the accused- respondent could not be produced. It is also in his evidence that by means of Ex.P4, Bathinda Chemicals Limited intimated to him that goods have not been delivered to them. Thus this document by no stretch of speculation could be in the possession of the accused-respondent. If any original document was in the possession of the accused-respondent, the same could have been got produced from his custody by serving a notice under Section 66 of the Evidence Act. To say the least of it, no plausible reason worth the name has been apportioned by the revision petitioner or withholding the originals of all the material documents. It is deducible from the afore- extracted evidence of the complainant that the photostat copies of Ex.P.1 to Ex.P. 5 produced on the record do not bear attestation of any authority. That being so, under no circumstance, the same could be inducted or looked into evidence. It is deducible from the afore- extracted evidence of the complainant that the photostat copies of Ex.P.1 to Ex.P. 5 produced on the record do not bear attestation of any authority. That being so, under no circumstance, the same could be inducted or looked into evidence. It is a rule of evidence that a document could not be exhibited, unless it is proved in a manner as provided by law. Mere exhibition of a document in itself does not dispense with its formal proof. Here-in, mere unattested photostat copies of the afore-referred documents have been produced. These under the rules of Evidence Act are irreceivable into evidence. It is beyond comprehension as to how and under what circumstances, these were marked as exhibits without their having been proved in a legal manner. If it is assumed for a while that their originals were lost here or there, the efficacious legal remedy available to the revision petitioner was to seek the permission of the Court to prove the same by leading secondary evidence. The record is quite barren in relation to the seeking of such permission. Here in this case, the revision has been preferred by the complainant. The State has not filed appeal. When the evidence is lacking to prove the alleged transaction between the parties, by no stretch of speculation, the revision petitioner can bank upon the provisions of Section 9 of the Act. Before calling in aid the provisions of this Section, it was obligatory upon the revision petitioner to prove that the goods were handed over to the accused-respondent for their delivery to M/s Bathinda Chemicals Limited, Bathinda. Unless this fact is established, the question of non- delivery is uncalled for. 8. In consequence of the preceding discussion, no interference is warranted in the impugned judgment. Resultantly, this revision being bereft of any merit is dismissed. Petition dismissed.