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2024 DIGILAW 762 (AP)

Gadiraju Savitri v. State Bank of India

2024-07-10

U.DURGA PRASAD RAO

body2024
ORDER : U. DURGA PRASAD RAO, J. 1. Challenge in this C.R.P. at the instance of defendant is to the order dated 07.12.2023 in I.A.No.745/2023 in O.S.No.423/2013 where under the learned II Additional District Judge, Visakhapatnam allowed the petition filed under Section 65 of CPC R/w Section 151 of CPC by the plaintiff-bank to adduce secondary evidence by way of marking the plaint documents No.16 to 35 and documents No.1 to 9. 1. The factual matrix is thus: (a) The plaintiff filed O.S.No.423/2013 against the defendant for recovery of a sum of Rs.12,82,258/- with subsequent interest at 12% per annum on the ground that the defendant who worked as Clerk in plaintiff-bank committed some irregularities and manipulated the bank transactions and misappropriated the amounts. Parallelly, the bank took up criminal proceedings against her in Cr.No.692/2010 on the file of III Town PS LNO, Visakhapatnam and also initiated departmental enquiry proceedings. (b) While so, during trial in O.S.No.423/2013, the plaintiff filed I.A.No.745/2013 under Section 65 of the Indian Evidence Act seeking permission of the Court to adduce secondary evidence in respect of plaint documents No.1 to 9 and 16 to 35. It is submitted that plaint documents No.36 to 91 were already marked as Exs.A1 to A62 but however, plaint documents No.1 to 35 could not be marked as exhibits as they are photostat copies. The original documents No.1 to 9 were not available in the bank and they could not be traced. So far as documents No.16 to 35 are concerned, they were handed over to the police officials of III Town P.S. on 08.01.2011 under acknowledgement for the purpose of conducting investigation and they were not returned back. Plaintiff-bank filed a petition in I.A.No.3040/2017 for a direction to the III Town P.S. for production of the aforesaid documents. So far as documents No.16 to 35 are concerned, they were handed over to the police officials of III Town P.S. on 08.01.2011 under acknowledgement for the purpose of conducting investigation and they were not returned back. Plaintiff-bank filed a petition in I.A.No.3040/2017 for a direction to the III Town P.S. for production of the aforesaid documents. However, the Officers of said police station did not produce the documents and ultimately submitted that III Town P.S. was bifurcated in the year 2015 and concerned records may be available with III Town P.S. MVP Colony Zone but the officers of the said police station also did not produce the documents stating that they were not handed over to said police station by III Town P.S. Again summons were issued to III Town P.S. but the authorities intimated that the documents might be misplaced either in the III Town PS or MVP Colony Zone and the documents have not been filed in CC No.242/2012. Hence the plaintiff - bank filed IA No.745/2023 seeking permission of the court to adduce secondary evidence in respect of documents No.1 to 9 and 16 to 35. 2. The defendant filed the counter and opposed the petition on the main ground that in the corresponding criminal case No.242/2012, the bank officials i.e., the Branch Manager and Assistant General Manager were examined as PWs. 2 and 6 respectively and they have deposed that they did not hand over any documents to the police and similarly the investigating officers were examined as PWs. 5 and 10 and they too stated that they did not receive any documents from the bank and therefore the question of the plaintiff-bank handing over the documents to the officers of III Town P.S., Visakhapatnam for investigating purpose and their failing to return those documents does not arise and ultimately the bank failed to satisfy the condition laid down in Section- 65(c) of Indian Evidence Act to the effect that the original was lost and hence the petition shall be dismissed. 3. The trial Court having regard to the acknowledgment of the S.I of Police, III Town P.S found on the plaint document No.9 which is a covering letter for handing over the documents addressed by the bank to the S.I of Police, III Town PS, Visakhapatnam, held that in view of such acknowledgment given by S.I of Police, the deposition of PWs. 2, 5, 6 and 10 in CC No.242/2012 cannot be based upon to reject the request of the plaintiff-bank. The trial Court was ultimately satisfied with the explanation of the bank in terms of Section 65(c) of Indian Evidence Act and allowed the petition. Hence the C.R.P. 4. Heard arguments of Sri V.V. Ravi Prasad, learned counsel for the petitioner and Sri K.B. Ramanna Dora, learned counsel for respondent. Both the learned counsel reiterated their pleadings and arguments made before the trial Court in the CRP. 5. The point for consideration is whether there are merits in the CRP to allow ? 6. POINT: The argument in vehemence of learned counsel for the petitioner Sri V.V. Ravi Prasad is that when both the investigating officers in clear terms have stated they have neither received nor seized any documents from the plaintiff-bank, the question of handing over the relevant documents to the police of III Town PS and their failing to return those documents to the bank does not arise and hence the plaintiff-bank failed to satisfy the condition laid down in Section 65(c) of the Indian Evidence Act and in that view the trial Court ought to have dismissed the I.A.No.745/2023. However, going by the acknowledgment in plaint document No.9 the trial Court unduly discarded the evidence of PWs. 2, 6 - the bank officers on one hand and PWs. 5 and 10 - the investigating officers on the other and erroneously allowed the petition. He thus prayed to allow the CRP and set aside the impugned order. 7. Per contra, Sri K. B. Ramanna Dora, learned counsel for respondent bank while supporting the impugned order would argue that the acknowledgement dated 08.01.2011 of PW.5 on plaint document No.9 clearly demonstrated that the investigating officer has received the documents mentioned in acknowledgment from the bank authorities for the purpose of investigation. Merely because the said officer inadvertently deposed that he did not receive or seize any document that cannot be viewed seriously. He submitted that the trial Court rightly gave due importance to the acknowledgment rather than the deposition of PW.5 and allowed the petition. He thus prayed to dismiss the CRP. 8. This Court gave its thoughtful consideration to the above respective submissions. He submitted that the trial Court rightly gave due importance to the acknowledgment rather than the deposition of PW.5 and allowed the petition. He thus prayed to dismiss the CRP. 8. This Court gave its thoughtful consideration to the above respective submissions. The claim of the bank is that for facilitating investigation in Crime No.692/2010, the bank has submitted relevant documents under the letter dated 07.01.2011 and obtained acknowledgement of PW.5 - the I.O on the reverse of the letter. Since those documents were not returned by the IO, it could not able to mark them as exhibits in the trial. It is also its case that the bank has made all the efforts to get back the documents but in vain. 9. In this context, a perusal of letter dated 07.01.2011 addressed by the plaintiff - bank to the SI of Police, III Town PS, a copy of which is filed along with CRP would show, in order to facilitate investigation in Crime No.292/2010, the bank submitted the documents enclosed in Annexure-II to the said letter and handed over to the SI of Police, III Town PS (PW.5). The said letter contains the following endorsements: "Sir, Received 81 (eighty one) documents as mentioned in Annexure-II on 08.01.2011. Sd/- Sub-Inspector of Police, III Town Police Station, Visakhapatnam" Sir, All the above documents will be filed in the court of IV ACMM, Visakhapatnam with charge-sheet. They are to be collected from Court only with orders. Sd/- Sub-Inspector of Police, III Town Police Station, Visakhapatnam" 10. Thus the above endorsements would prima facie show that during the course of investigation PW.5 obtained certain documents from the bank under his acknowledgment dt: 08.01.2011. However, during his evidence in CC No.242/2012, PW.5 stated in the cross- examination as if he did not receive or seize any documents from the bank. This part of his evidence militates against the above endorsements. It must be noted that when PW.5 gave the said statement in the criminal case the bank officials were not present to contradict his statement. The prosecution was conducted by the public prosecutor and he cannot say whether PW.5 seized any documents from the bank. Therefore, in my view, the un-tested evidence of PW.5 cannot be pitted against the bank to deny an opportunity to produce the secondary evidence. In that view, I find no irregularity or illegality in the order impugned. The prosecution was conducted by the public prosecutor and he cannot say whether PW.5 seized any documents from the bank. Therefore, in my view, the un-tested evidence of PW.5 cannot be pitted against the bank to deny an opportunity to produce the secondary evidence. In that view, I find no irregularity or illegality in the order impugned. Above all, so far as the veracity of the documents sought to be adduced as secondary evidence are concerned, the defendant will have right to challenge when they are produced. Therefore, no prejudice will be caused to her. 11. Accordingly, the Civil Revision Petition is dismissed by confirming the order in I.A.No.745/2023 in O.S.No.423/2013 passed by learned II Additional District Judge, Visakhapatnam. No costs. As a sequel, interlocutory applications pending if any, shall stand closed.