THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL PETITION NO.11281 & 11282 OF 2023

COMMON ORDER

CRL.P.NO.11281 of 2023 The petitioner is aggrieved by the Order dated

13.09.2023 passed in Crl.M.P.No.512 of 2023 in C.C.No.546 of 2017 by the learned Judicial Magistrate of First Class, Thungathurthy whereby the photocopies of documents were sought to be marked by the accused.

CRL.P.NO.11282 of 2023 The petitioner is aggrieved by the Order dated

13.09.2023 passed in Crl.M.P.No.513 of 2023 in C.C.No.546 of 2017 by the learned Judicial Magistrate of First Class, Thungathurthy whereby DW1 was recalled for adducing evidence.

02. The said documents were permitted subject to proof and relevancy.

03. Learned counsel for the petitioner would submit that even getting the document on record, pre-requisites of Section 65 of the Indian Evidence Act have to be fulfilled. Though it is the case of the accused that the documents are with complainant, it is for him to issue notice and thereafter, photocopies of documents can be produced. He relied upon a decision in J.Yashoda v. K.Shobha Rani¹

04. The offence alleged against the accused is under Section 138 of the Negotiable Instruments Act.

05. The documents sought to be brought on record by accused are photocopies. Learned Magistrate permitted to get the documents on record subject to proof and relevance.

06. In Honourable Apex Court in Bipin Shanthi Lal Panchal v. State of Gujarat and others², wherein it was held that:

“Whenever an objection is raised during the evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and make the objected document tentatively as an exhibit in the case (Or record the objected part of

1

2007 (5) S.C.C. Page No.730 AIR 2001 SC 1158

the oral evidence subject to such objections to be decided at the last stage in the final Judgment. If the Court finds the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. There is no illegality in adopting such a course. The Court however made it clear that if, the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all the other objections, the procedure suggested above can be followed”. It is also held in Sudhakerreddy v. M Pullaiah3 that “ii) The documents, which are marked, do not dispense with their proof. iii) There is a difference between marking of a document and admitting the same in evidence. iv) As held by the Supreme Court in R.V.E.Venkatachala Gounder, the objection that the document which is sought to be proved is itself inadmissible in evidence can be raised even at a later stage or even in appeal or revision. When the objection relates to mode of proof alleging the same to be irregular or insufficient, the objection should be taken before the evidence is tendered and cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. This later objection is an objection relating to the irregularity or insufficiency. v) In order to avoid delay in the trial of the suit, the Court can tentatively mark a document and examine its admissibility and the objection raised to it along with the

pronouncement of Judgment.”

07. Mere marking of document will not dispense with its proof, unless the document is proved in

2015 (3) ALT 575 G accordance with law. Therefore, I do not find any infirmity in the Order passed by the learned Magistrate.

08. In view of the above discussion permitting to get the photocopies on record, no orders needs to be passed in CRL.P.No.11282 of 2023.

09. Accordingly, both Criminal Petitions are dismissed. There shall be no order as to costs.

As a sequel, pending Miscellaneous Applications, if any, shall stand closed.

______________________ K. SURENDER, J Date: 16-NOV-2023 KHRM