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2012 DIGILAW 1795 (ALL)

Moti Singh v. State of U. P. and Another

2012-08-09

MANOJ MISRA

body2012
Hon'ble Manoj Misra,J. 1. By this revision, the revisionist has challenged the order dated 17.07.2012 passed by the Special Chief Judicial Magistrate, Agra in Criminal Case No. 469 of 2012, whereby the application of the revisionist, under Section 239 Cr.P.C., has been rejected. 2. The facts, in brief, are that a first information report was lodged by one Devendra Singh against the revisionist and five other persons with allegations that the accused persons were members of the Management Committee of Purshottam Bagh Co-operative Housing Society Ltd., Agra and that in collusion with each other, they swindled a sum of Rs. 3,00,000/- from the account of the Society and to cover up the act, fabricated a fictitious resolution No.8(5) in the minutes of the meeting dated 13.07.2011. An investigation was carried out whereupon a charge-sheet was laid. The Investigating Agency obtained attested copy of the minutes of the meeting dated 13.07. 2011 from the Union Bank of India, Dayalbagh branch, Agra, where the Society had opened its account and had submitted copy of the minutes of the meeting dated 13.07.2011. The Investigating Agency, however, could not procure the original of the minutes of the meeting. 3. An application was submitted, seeking discharge. Simultaneously, an application was also given by the revisionist, purportedly under Section 91 of the Code of Criminal Procedure, to summon the original record of the resolution etc. 4. The application under Section 91 of the Code of Criminal Procedure was rejected by order dated 09.07.2010. Against the order dated 09.07.2010, a writ petition No. 15388 of 2010 was filed before this Court, which was allowed by order dated 20.08.2010 with direction to the trial court to summon the original record before it considers whether charge should be framed against the petitioner or not. Pursuant to the order dated 20.08.2010, the Court of Chief Judicial Magistrate, Agra, on 30.09.2010, passed an order, after recording a finding that the original of the document were in the custody of revisionist Moti Singh. By this order dated 30.09.2010, Moti Singh was directed to produce the original. Against this order dated 30.09.2010, the revisionist preferred Criminal Revision No. 4382 of 2010, before this Court, on the ground that an accused cannot be compelled to give evidence against himself. By this order dated 30.09.2010, Moti Singh was directed to produce the original. Against this order dated 30.09.2010, the revisionist preferred Criminal Revision No. 4382 of 2010, before this Court, on the ground that an accused cannot be compelled to give evidence against himself. Accordingly, the criminal revision No. 4382 of 2010 was disposed of with the following observations:- " It is well settled law that the accused cannot be compelled to give any evidence against himself. The order of the learned lower Court is directive in nature, the accused may avail privilege available to him for non-production of the documents. According to the said principle, the Court will take up the matter and may draw the presumption whatever may be raised." After the aforesaid decision, the court below vide its order dated 17.07.2012 dealt with the application for discharge and rejected the said application finding sufficient material for the prosecution of the revisionist. 5. Aggrieved by the order dated 17.07.2012, passed by the Special Chief Judicial Magistrate, Agra, the present revision has been filed. 6. I have heard Sri Dharmendra Singhal, learned counsel for the revisionist and Sri Bhuvnesh Kumar Singh assisted by Sri Amit Srivastava, learned counsel for respondent No.2 and the learned A.G.A for the State and have perused the record. 7. The only point raised by Sri Dharmendra Singhal, learned counsel for the revisionist, was that once this Court by its order dated 20.08.2010 had directed the trial court to summon the original record before it at the stage of charge to consider whether the charge should be framed against the petitioner or not, in absence of the original record, there was no option for the court below but to discharge the accused persons. 8. Per contra, learned counsel for the respondents submitted that the fabricated resolution, on which the prosecution seeks to bring home the guilt against the accused persons, is in the custody of the persons accused, and since the persons accused cannot be compelled to produce the said documents, the prosecution is relying on photocopy of that document which was produced by the accused persons in the Bank for the purpose of opening an account, therefore, the secondary evidence was admissible. Reliance was also placed on a judgment of the Apex Court in the case of State of Orissa v. Debendra Nath Padhi, reported in (2005) 1 SCC 568 , so as to contend that the question of invoking section 91 of the Code of Criminal Procedure at the stage of framing of charge does not arise, as defence of the accused is not relevant at that stage. It was further contended that from the material available on record, it was established that the original was in the custody of the persons accused, therefore, the secondary evidence was admissible under the provisions of Section 65 of the Evidence Act and, as such, the court below did not commit any illegality in rejecting the application for discharge. 9. Section 65 of the Evidence Act enumerates the conditions under which secondary evidence relating to documents may be given. One of the conditions in which secondary evidence of a document is admissible is when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court. As the persons accused are allegedly having custody of the original, prima facie, the secondary evidence becomes admissible. 10. For the reasons aforestated, I do not find any force in the submission of the learned counsel for the revisionist that in absence of the original of the documents, the charge against the revisionist cannot be framed. The view taken by the court below, therefore, does not appear to suffer from any legal infirmity, illegality, impropriety or jurisdictional error. The revision is, accordingly, dismissed. _