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2022 DIGILAW 191 (MP)

Satyendra Kosha v. Registrar General, High Court

2022-02-02

PURUSHAINDRA KUMAR KAURAV, RAVI MALIMATH

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JUDGMENT Purushaindra Kumar Kaurav, J. - This petition under Article 226 of the Constitution, has been filed seeking directions to the respondents No.1 and 2 to enquire and investigate in the matter as to how certain documents which were not exhibited were placed in the record of the trial Court. 2. The brief facts of the case are that the petitioner is an accused in a complaint case pending against him before the competent Court under Section 138 of the Negotiable Instruments Act 1881. The petitioner has filed this petition stating that on 06.05.2015, the respondent No.3- complainant appeared before the Court below for his examination-in- chief and he exhibited seven documents which were marked as Exhibit P-1 to Exhibit-P-7. On 26.09.2015, upon completion of the cross- examination of the respondent No.3, his evidence was closed and the matter was proceeded further. At the time of his examination-in-chief i.e. on 06.05.2015, Shri Santosh Kumar Kol, was the Presiding Judge, however, on the date of conclusion of the cross-examination of the respondent No.3-complainant, the Presiding Officer was Dr. Umashankar. The petitioner further states that when the matter was being prepared for the evidence, it was found by him that in the record of the Court there were nine exhibits from Exhibit-P-1 to Exhibit-P-9 whereas, the order sheet dated 06.05.2015 records only seven exhibits. The petitioner further stated that he found in all exhibits, the seal and signature of the present Presiding Officer namely; Shri Rajesh Kumar Yadav, are appearing whereas, there was no occasion for the present Presiding Officer to put his seal and signature, when the exhibits were marked on 06.05.2015. It is for these reasons, the petitioner prays for interference under Article 226 of the Constitution. 3. The respondents No.1 and 2 have filed their reply controverting the allegations made by the petitioner. The respondents have also brought on record the conduct of the petitioner to show that he being an accused before the trial Court is trying to prolong the proceedings. The original complaint was filed before the trial Court in the 2008 and till 2014, the petitioner did not appear. He appeared before the trial Court only when the proceedings under Sections 83 and 84 of Cr.P.C. for declaring him as a proclaimed offender were initiated including the attachment of his property. The original complaint was filed before the trial Court in the 2008 and till 2014, the petitioner did not appear. He appeared before the trial Court only when the proceedings under Sections 83 and 84 of Cr.P.C. for declaring him as a proclaimed offender were initiated including the attachment of his property. The petitioner earlier filed application under Section 45 of the Evidence Act questioning the correctness of Exhibit P-8 before the trial Court with a prayer to get it examined by the hand writing expert and the said application was rejected by the trial Court on 17.08.2017 and the order was affirmed by the Additional Sessions Judge on 06.11.2017. This Court in M.Cr.C. No.23223 of 2017 decided on 10.10.2018, also dismissed the petition under Section 482 of Cr.P.C., filed by the petitioner and noted that the said proceedings were taken up by the petitioner at the fag end of the trial, is nothing but to delay the decision of the case. It is the contention of the respondents that even as on 17.08.2017, the petitioner was aware of existence of Exhibit-P-8 and, therefore, he did not question the existence of the said document. It is the further stand of the respondents that on 06.05.2015, list mentioning 10 documents was filed by the respondent No.3 before the trial Court which was acknowledged by the counsel for the petitioner. The same document which were mentioned at Serial No.8 and 9 have been marked as Exhibits P-8 and P-9. Three documents produced by the petitioner himself were marked as exhibited Ex-D-1 to D-3 as recorded in the order sheet dated 06.05.2015. It has been stated that due to over sight and inadvertence neither in the documents exhibited by the respondent No.3 nor in the documents exhibited by the petitioner, the seal and signature of the than Presiding Officer were marked. However, the documents were available on record. It has been submitted that when on 28.02.2019 (Annexure-R-3), an application seeking certified copies of the Exhibits P-1 to P-9 was made, the concerned Reader before sending the file to the copying Section noticed that there was no seal and signature of the Presiding Officer, therefore, just below the exhibits after putting the seal, he requested the Presiding Officer to put his signature which were marked before sending the file to the copying Section. Under the aforesaid circumstances, it has been stated that the petitioner-accused lacks his bonafide in filing the present petition with an oblique motive to delay the proceedings on pretext or the other taking advantage of the over sight of the then Presiding Officer. 4. We have heard the parties at length. This Court vide order dated 01.04.2019 requisitioned the original record of the trial Court, which has also been perused. 5. We find that the present writ petition is misuse of process of law and the same has been filed only with an intention to prolong the proceedings of the trial. We say so for various reasons. 6. The first reason is that the examination-in-chief of respondent No.3 dated 06.05.2015 clearly records that nine documents were exhibited. What has been relied upon by the petitioner is only order sheet dated 06.05.2015, but not the text of the examination-in-chief of the witnesses which has been done in the presence of the petitioner. Therefore, it cannot be said that only seven documents were exhibited and the record clearly proves that nine documents were exhibited. Secondly, the petitioner at the time of filing an application under Section 45 of the Evidence Act was well aware of all the exhibits and said application was dismissed on 17.08.2017 and he did not question the very existence of those documents and, therefore, for this reason also, his plea is apparently afterthought. The third reason is, that the petitioner in his application seeking certified copies of the witnesses and exhibited (Annexure-R-3) himself has prayed for certified copies of Exhibit P-1 to P-9, which clearly shows that the petitioner had knowledge about the existence of Exhibits-P-8 and P-9 also. Fourthly, in the entire pleadings, the petitioner has not mentioned about the actual date when he first time came to know about the existence of Exhibits P-8 and P-9. Fifthly, in entire proceedings, the petitioner has not stated any fact with respect to substitution/replacement of any of the documents with the original exhibits so as to show that any prejudice is caused to him. 7. At this stage, we also take note of the explanation given by the respondents No.1 and 2 for affixing the seal and signature of the present Presiding Officer. 7. At this stage, we also take note of the explanation given by the respondents No.1 and 2 for affixing the seal and signature of the present Presiding Officer. When we examined the explanation with the original record, we find that even Exhibits-D-1 to D-3 are marked, but there is no seal and signature of the Presiding Officer below the marking of the exhibits. Hence, the explanation is found to be correct that when the petitioner applied for certified copy of the exhibits P-1 to P-9, before sending the file to the copying Section, the present Presiding Officer has singed the exhibits with his seal. It is also noted that since 06.05.2015, all those documents were on record, the petitioner is questioning the authenticity of Exhibits P-8 and P-9 in the year 2019, when he has already failed in a petition under Section 482 of Cr.P.C. 8. We understand that as per Rule 458 of Chapter-18 of Part-II of Rules and Order (Criminal), a document put on the record shall be marked with the endorsement of case No., Exhibit No., Proved by the witness concerned, the date on which it was proved and the endorsement shall be signed by the Presiding Officer. Section 80 of the Evidence Act provides that whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence or of any part of the evidence, given by a witness in a judicial proceeding, or before any officer authorized by law to take such evidence, taken in accordance with law, and purporting to be signed by any judge or magistrate, or by any such officer as aforesaid, the Court shall presume that the document is genuine, that any statement as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence was duly taken. Section 80 recognizes that when a deposition is taken by a public Officer, there is a degree of publicity and solemnity, which affords a sufficient guarantee for the presumption that every thing was formally, correctly and honestly done. Section 80 recognizes that when a deposition is taken by a public Officer, there is a degree of publicity and solemnity, which affords a sufficient guarantee for the presumption that every thing was formally, correctly and honestly done. In the present case, the deposition sheet is not disputed which clearly records exhibits P-1 to P-9, the existence of the document is not denied and only a pure hyper technical plea is raised, which is found to be apparently not sustainable for various reasons mentioned in preceding paragraphs. 9. For all the aforesaid reasons, we are not inclined to issue any direction hence, the present petition is dismissed. 10. However, it is directed that since the complaint is pending since 2008, the same is directed to be decided as expeditiously as possible not later than three months from the date of receipt of copy of this order by the trial Court.