STATE Vs. RAJPAL AGARWAL

JUDGEMENT

(1.) The facts-leading to this application are as follows: The State of Tamil Nadu represented by the Special Police Establishment (now C.B.I., Madras) filed a charge sheet against the wo respondents accused Rajpal Agarwal and Jawaharlal Jawahar complaining of commission of various offences punishable under section 120-B read with Section 420 of the Indian Penal Code, Section 23 read with Section 4(1) of the Foreign Exchange Regulation Act, Section 132 of the Customs Act, etc. In short, the prosecution case was that the two accused are the power of attorney holders for their respective wives doing some partnership business at Delhi. During the period 1964-66, they have committed very many illegal acts at Delhi, Bombay, Kuwait Eden, Madras, Kandla, etc., to wit, obtain licences for import from licence holders, open letters of credit in State Bank of India, Delhi, negotiate Bills of Ladding and Bills of Exchange, etc. Besides these, they have also committed an offence of conspiracy, to cheat the State Bank of India, Delhi by creating two invoices containing false particulars. Fictitious letters of credit and had made dishonest and fraudulent representation to the banks and the companies at Kuwait, Eden, etc. These offences were said to have been committed in India and out of India in 1964 to 1966, and therefore, the investigation went on for some years, and finally a charge sheet was formally filed in 1970. The case was then transferred to the Special Presidency Magistrate, and the prosecution examined 32 witnesses on its side and the prosecution evidence was practically coming to a close in 1973. The investigating Officer of the Special Police Establishment Division (C.B.I.) was in the witness box as P.W.32 and the prosecution wanted to let in secondary evidence of some documents on the ground that the originals are in the possession or power of persons who are in Kuwait, Eden and other foreign countries and hence out of reach. The documents that were sought to be marked under Section 65-A of the Evidence Act are, photostat copies of Shipment pass note, Application for Shipment, Export Manifest, Shippers" Application, Loading Permit and Clearance Invoice. The learned Chief Metropolitan Magistrate held that these documents are not admissible in evidence without proof of execution of their originals, and therefore, they were shut out from the evidence on 25.7.78. Now the State, represented by the C.B.I,, Madras has come forward with this revision petition stating that the order of the trial Court shutting out the documents is erroneous and that the prosecution is entitled to let in secondary evidence by producing the photostat copies of the originals with the evidence of the Investigating Officer who has seen the originals and the contents thereon.

(2.) Learned Counsel for the accused would argue that no revision lies against the order of the lower court and that the petition is hit by section 397(2) of the Criminal Procedure Code. In other words, the order of the learned Chief Metropolitan Magistrate is only an interlocutory order passed in the course of a trial, and therefore, no revision lies.

(3.) Now, the short point for consideration Is, whether the order of the trial Court in question is a mere interlocutory order or otherwise.