Interim Order 2

Order Details: Order below exhibit
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IN THE CITY CIVIL COURT FOR GR. BOMBAY AT MUMBAI
APPLICATION AT EXHIBIT33
IN
COMMERCIAL SUIT NO.251 OF 2019
M/s. Oscar Fashions Pvt. Ltd. ) … Plaintiff.
Vs.
Bharat Shivaji Udeshi )...Defendant.
Appearances:
Adv. Mr. Paras Veera for the plaintiff.
Adv. Mr. Rajesh Ghag for the defendant.
CORAM : RAJESH A. SASNE
ADHOC JUDGE
(C.R.No.32)
DATED : 10th March, 2022
ORDER BELOW EXHIBIT33
By this application the plaintiff prays to exhibit the
documents at Sr. No.1 to 6 of list of document at exh.7.
2. It is the contention of the plaintiff that this Court has not
marked the aforesaid documents as exhibit. Copies of these documents
are marked as article X1 to X6. These documents are certified copies.
The plaintiff has proved these documents in the evidence. Bank
witnesses are also examined to prove these documents. The contents of
documents at Sr. No. 1 and 4 and execution of document at Sr. No.3 are
also confirmed by bank witnesses. The contents and existence of
documents at Sr. No.2 and 3 are admitted by the defendant in the
document at Sr. No.6 i.e. reply notice. The fact of issuance and receipt
of document at Sr. No.5 has not been denied by the defendant. It is
further contention of the plaintiff that the original of all the above
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documents are lying before the Metropolitan Magistrate Court at
Sewree in Criminal Case under Section 138 of the Negotiable
Instrument Act, 1881. Said case is pending and therefore, the plaintiff
could not be able to produce the original documents. Under these
circumstances the plaintiff prays to mark exhibit these documents as
secondary evidence.
3. The application is opposed by the defendant by say filed at
exhibit 34. It is the contention of the defendant that the plaintiff's
request has been rejected. In spite of this, the plaintiff has made same
request again. After passing of order in respect of exhibiting the
documents, the plaintiff has examined the witness. None of the bank
witness has produced original documents. The opportunity was granted
to the plaintiff to produce the original documents. Without availing said
opportunity, the plaintiff applied for witness summons. Witnesses have
not stated anything about the original documents. The plaintiff has not
given valid reason for marking of documents as exhibit. With these
contentions the defendant has prayed to reject this application.
4. Heard the learned advocates for the plaintiff and for the
defendant.
5. The learned advocate for the plaintiff urged that the
documents are certified copies issued by the Court and therefore, they
shall be marked as exhibit as certified copies of public record. He relied
on following judgments in support of his argument:
a) V. J. Thomas Vs. State of Kerala, (AIR 1970 Kerala 273)
b) Katikineni Venkata Gopala Narasimha Rama Rao Vs.
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Chitluri Venkataramayya (AIR 1940 Mad 768)
c) Gurudev Ganba Sinai Gaitonde Vs. Special Land Acquisition
Officer (N) & anr 2011(3) Bom. C.R. 272
d) Jagdishchandra Chandulal Shah Vs. State of Gujarat and
others (1989 Criminal Law General 1724)
e) State of Gujarat Vs. Ambalal Maganlal Saha (1966 Criminal
Law General 967 )
f) Gorantla Venkateshwarlu Vs. B. Demudu (AIR 2003 Andhra
Pradesh 251)
The defendant has relied on following judgment:
a) Parkash Rai Vs. J. N. Dhar (AIR 1977 Delhi 73)
6. In V. J. Thomas case (supra) it was held that police officer's
report under Section 173 (1) of Cr. P. C. and decision thereon by the
Magistrate are public documents. The issue therein was whether the
petitioner is entitled to get copies thereof. It was also held that the
documents forming acts or records of acts of police and Magistrates
exercising powers under Cr. P.C. are public documents.
7. In Katikineni Venkata Rao's case (supra) it was the
observation that profit and loss statement and statement showing
details of net income, filed in support of income tax returns are public
documents. Certified copies thereof are admissible under Section 65(e)
of the Indian Evidence Act.
8. In Gurudev Gaitonde's case (supra) it was held that public
records kept (in any state) of private documents are public documents.
Accordingly, sale deed is held as private document.
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9. In Jagdishchandra Shah's case (supra) copy of sale deed
and copy of plaint are held as public documents.
10. In State of Gujarat Vs. Ambalal Shah's case (supra) it is
held that a private document does not become a public document
simply because it is filed in the Court. To be a public document, it
should be a record of the act of a public officer or Court. There is a
distinction between the record of the act of the Court and the record of
Court. A document which forms part of the record of the Court does not
necessarily form record of the act of the Court. It may be that upon a
private document, which is a record of the act of private parties a
second act is done by the public officer or by the Court, namely filing
the document or putting a number on the document. Therefore, that
part of the document, namely the original part would be a private
document forming the record of the act of the private parties and what
is subsequently added to that document by the Court would be a public
document.
11. In Gorantla Venkateshwarlu's case (supra) it is held that
record of nationalised bank is public document.
12. In Prakash Rai's case (supra) it is held that statements
recorded by Court or Tribunal are public documents. It is further held
that Section 77 of Indian Evidence Act, cannot be read in isolation. It
has to be given harmonious interpretation in light of the other
provisions of the Statue; otherwise it would render those provision
nugatory.
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13. Taking into consideration the ratios of above citations, I
proceed to decide the merit of present application. The plaintiff
alongwith the affidavit of the evidence has produced certified copies of
the documents which are produced before the Metropolitan Magistrate
in case under Section 138 of Negotiable Instrument Act. These certified
copies are issued by the office of said Court. These are following
documents:
1. Certified copy of the Certificate dated 29.08.2018, issued
by the Canara Bank. (Marked as Article X1)
2. Certified copy of the Writing dated 15.10.2017, issued by
the defendant. (Marked as Article X2)
3. Certified copy of the Dishonored cheques bearing Nos.
081222, 081223 & 015787. (Marked as Article X3)
4. Certified copy of the six cheque return memo dated
09.04.2018, 09.04.2018 and 13.04.2018. (Marked as
Article X4 & X5 Colly.)
5. Certified copy of the Notice dated 17.04.2018, issued by
the plaintiff. ( Marked as Article X6)
14. These certified copies are part of the documents produced
in a Criminal Case. The plaintiff has examined Sharad (PW1), Saurabh
(PW2) Officer of Canara Bank, Nikhil (PW3) Officer of Canara Bank,
Deepak (PW4) and Apsi (PW5). It is the contention of the plaintiff that
all these documents are produced in Criminal Case before the
Metropolitan Magistrate, and they are part of record of the Court and
thereby they are public documents. In V. J. Thomas case (supra) it is
held that documents forming acts or records of acts of police and
Magistrate are public documents. In Ambalal Shah's case (supra) it is
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held that a private document does not become a public document
simply because it is filed in the Court. To be a public document, it
should be a record of the act of a public officer or Court. There is
distinction between the record of the act of the Court and record of the
Court. A document which forms part of the record of the Court does not
necessarily form record of the act of the Court. It may be that upon a
private document, which is a record of the act of private parties a
second act is done by the public officer or by the Court, namely filing
the document or putting a number on the document. Therefore, that
part of the document, namely the original part would be a private
document forming the record of the act of the private parties and what
is subsequently added to that document by the Court would be a public
document. Therefore, the documents produced before the Court is not
the act of the Court, therefore, it is private document. Exhibiting that
documents is the act of the Court and therefore, such act of exhibiting
document forming record of that act is a public document. Therefore,
action of public authority in respect of private documents produced
before it can be considered as record of public authority and such
record would be a public document. Therefore, marking of documents
and issuance of certified copies can be considered as public act of the
public authority and record of such act can be considered as public
document. However, it cannot be assumed that the contents and truth
of contents of the documents are exempted to be proved by production
of such certified copy. In case before me, the documents marked as
article are certified copies issued by the Court from the documentary
evidence adduced before it. The marking of document by the said
Court and issuance of certified copies can be considered as act of public
authority and therefore, the evidence thereto is admissible. However,
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proof and truth of contents therein is required to be established. As held
in Prakash Rai's case (supra) relevancy, admissibility and proof have to
be fully complied marking of document is administrative act. Merely,
marking the document as exhibit, proof thereof is not dispensed with. It
is the contention of the plaintiff that these certified copies are produced
as secondary evidence. As observed above the plaintiff is allowed to
produce these certified copies. As observed above the act of public
authority exhibiting these documents and issuing certified copies
thereof is admissible. Hence, the documents marked as Art. X1 to X6
are admitted in evidence as exhibited in Criminal Case by the Court.
Certified copies thereof are admitted in evidence. They are exhibited
respectively subject to be objection and proof. Hence, I pass the
following order.
ORDER
1. Application at exhibit33 is partly allowed.
2. The documents marked as Art. X1 to X6 are certified
copies of the documents admitted in evidence and exhibited
by the Metropolitan Magistrate Court, therefore, they are
admitted and shall be exhibited respectively subject to be
objection and proof thereof.
3. Costs of this application shall follow the event.
(Rajesh A.Sasne)
Judge,
City Civil & Sessions Court,
Date : 10.03.2022 Mumbai.
Dictated on : 10.03.2022
Typed on : 15.03.2022
Signed by HHJ on : 15.03.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
17.03.2022 at 10.55 a.m.
UPLOAD DATE AND TIME
(Mr. S. V. AMBEKAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI R.A.Sasne
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
10.03.2022
Judgment/order signed by P.O. on 15.03.2022
Judgment/order uploaded on 17.03.2022
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