Surja Ram vs Vakil Chand anr.

M.M. Punchhi, J.—This is a petition under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution arising in the following circumstances :

The petitioner Surja Ram filed a criminal complaint on 1781979 against the two respondents Vakil Chand and Birbal Ram on the broad allegations that on 2961964, he had paid to the respondents under a written receipt a sum of Rs. 4728.58 P. in entrustment to be deposited in the Central Cooperative Bank. It further alleged that for nearly 5 years, nothing happened and he assumed that the money had been paid in the said Bank. However, on 1741979, he received a notice from the Inspector, Cooperative Societies, that the said sum was due from him which had multiplied to Rs. 14860.91 p. on account of the interest accrued and costs, as awarded by the Arbitrator. Allegedly being apprised of the outstanding of such liability on 1741979 itself, he on 1781979 filed the aforereferred to criminal complaint against the respondents under Section 408/406/420/120B, Indian Penal Code. After preliminary evidence was recorded, the trial Magistrate summoned the accused respondents. Precharge evidence was also led. The aforereffered to receipt was put on record. Its photostat copy was exhibited in preliminary evidence as Exhibit PA. The aforereffered to notice issued by the Inspector was introduced in evidence as Exhibit PB and that too at the stage of the preliminary evidence. At the precharge stage, these documents were reintroduced in evidence as Mark `B'' and Mark ''A'' respectively. After the precharge evidence was over and the question of charge arose, trial Magistrate was contronted with the petitioner''s evidence of these documents. Then vide interim dated 20.4.1982, he observed as follows :

"Arguments heard on the question of exhibiting receipt Mark B and notice Mark A. Photostat copy of receipt Mark B already stands exhibited on file as Ex. PA and notice stands exhibited as Ex. PB. Under the circumstances, objections now raised as to mode of proof are accordingly repelled. Original receipt is exhibited as Ex. PA/1. Notice already stands exhibited. For orders on charge, case to come up after some time."

Sd/ (R. Gupta)

J.M.I.C.

20 4.82"

Shortly thereafter, he pronounced the order discharging the accused respondents dealing with the evidence as if he was disposing of the case after a fullfledged trial. The learned Additional Sessions Judge, before whom a Revision Petition was filed by the complainant, endorsed that view. This is why the complainant is in this Court.

It seems to me, after hearing the learned counsel, that Courts, below totally overlooked the mandatory provisions of Section 294 of the Code of Criminal Procedure, which is in the following terms :

"294. No formal proof of certain documents

(1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.

(2) The list of documents shall be in such form as may be prescribed by the State Government.

(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed;

Provided that the Court may, in its discretion, require such signature to be proved."

No effort was made by the trial Magistrate to employ the aforesaid provisions calling upon the accused to admit or deny the genuineness of the receipt and the notice, whether exhibited or otherwise. At page 13 of the file, the receipt as also its photostat copy is mentioned in the list filed. Photostat copy is available at page 11 and the original receipt at page 15 of the file. Similarly, another list is available at page 7 which mentions besides the aforesaid receipt, notice issued by the Inspector Cooperative Societies and that notice, in original, is available at page 9. Genuineness of these documents had initially to be put to the accused and when not disputed, these documents could be read in evidence in these proceedings. It is patent from the record that without specifically owning or disowning the execution and the signatures on the receipt, the defence was allowed to pick holes therein about its admissibility and to its exhibiting. It seems that coiled in that tangle at the precharge stage, the trial Magistrate, after passing the interim order aforereffered, switched over to dispose of the case on oral evidence. In approaching the case by this method, it seems to me that an important piece of evidence was ignored leading to grave miscarriage of justice. Thus on this ground alone without adverting to other ground it is considered fit to quash both the orders of the Courts below and remit the case back to the trial Magistrate to proceed further in the complaint in accordance with law and in the light of the observations aforemade. It is, however, made clear that no view has herein been expressed on the merits of the case, either in approval or in correction of the expressed by the Courts below, as the entire matter would now be opened to be considered afresh. JUDGMENTed accordingly.

The parties through their counsel are directed to put in appearance before the trial Magistrate on February 4, 1985.

JUDGMENT accordingly.