MUNAWAR AHMED NAEEM AHMED Vs. ABDUL GAFFAR QUADARI

JUDGEMENT

(1.) By these respective petitions, the petitioner prays for quashing and setting aside the order dtd. 26/09/2018, passed by the learned Chief Judicial Magistrate, Aurangabad below application at Exhibit 198 in R.C.C. No.1937/2012, and below application at Exhibit 210 in R.C.C. No.1937/2012, thereby rejecting both the said applications filed for permitting him to lead secondary evidence of exhibited documents.

(2.) These matters are having long history. According to the petitioner, initially on 29/07/2010, petitioner who is original complainant had lodged complaints bearing R.C.C. No.193/2012 and R.C.C. No.1937/2012 before the learned Judicial Magistrate First Class, Aurangabad for offence punishable under Ss. 467, 468, 471, 420 read with Sec. 34 of the Indian Penal Code against respondents/accused therein, alleging that respondent No.2 had issued false and bogus experience certificates in favour of respondent Nos.4 to 8 in Criminal Writ Petition No.1463/2018 and respondent No.2 had issued false and bogus experience certificates in favour of respondent Nos.3 and4 in Criminal Writ Petition No.1464/2018 for having worked for five years, though they had no such experience. It was alleged that the said false experience certificates were signed by respondent No.1 in both the petitions and on the basis of same, those respondent came to be appointed as 'Lecturers in Dr. Zakir Husain College of Education, Khultabad. The said college is being run by Everest Education Society and respondent No.1 is President of said society. Prior to filing of complaints, the petitioner had secured certain documents under Right to Information Act from the Deputy Education Officer, Aurangabad, which were in the nature of appointment orders, experience certificates, joining letters and other necessary documents and staff profile of the employees of the said Institution. It is alleged that the said documents were received by the concerned office and original documents were in the custody of present respondents/accused, as they were not submitted them in the office.

(3.) Learned Judicial Magistrate First Class, Aurangabad issued process against the respondents/accused in both the petitions. The said order was challenged before this Court in Criminal Application No.5851/2013 and in Criminal Application No.5850/2013. This Court vide order dtd. 01/12/2014, dismissed the said applications. Thereafter, respondents approached the Hon'ble Apex Court by filing Special Leave Petition (Crim.) No.433/2015 and 480/2015. However, vide the order dtd. 22/01/2015, the Hon'ble Apex Court permitted the respondents to withdraw the said petitions and no relief was granted in their favour. Consequently, learned Judicial Magistrate First Class proceeded with the matter and after framing charge proceeded with the trial and examined one complainant witness, namely Bhausaheb Apparao Tupe, who was Deputy Education Officer, Zilla Parishad, Aurangabad at the relevant time, from whom petitioner had received certain documents at Exhibit 130 to 153 and at Exhibit 88 to 100 respectively (alleged false experience certificates), however, the said witness had deposed in his deposition that original documents are not in custody of accused persons and the said documents at exhibit 130 to 153 as well as exhibit 88 to 100 have been issued to the complainant/petitioner from their office. Though the said documents are the photocopies and signed as true copies, however, the same came to be exhibited in the evidence of said witness. According to the petitioner, being they are photocopies and true copies, the said documents are not primary evidence. Accordingly, petitioner took steps as per Sec. 66 of the Indian Evidence Act, by filing application at Exhibit 181 and application at Exhibit 190 under Sec. 66 of the Indian Evidence Act to call upon accused for producing original copies of original documents at Exhibit 130 to 155 and Exhibit 89 to 98, 99 collectively and Exhibit 100 collectively. In the said applications, it was specifically contended that the said documents are in possession of respondents/accused and in order to prove said documents, the original documents are necessary. Vide order below Exhibit 181 in R.C.C. No.1937/2012 and below Exhibit 190 in R.C.C. No.1936/2012 dtd. 07/09/2016, the learned Chief Judicial Magistrate, Ahmednagar rejected the said applications, by observing that the said documents appears to be not in possession of accused persons, as admitted by complainant witnesses at the time of recording their witnesses. The said order came to be assailed by the petitioner before this Court by filing Criminal Writ Petition No.1275/2016 and Criminal Writ Petition No.1248/2016. According to the petitioner, this Court had directed to issue notices to all the accused persons as per Sec. 66 of the Indian Evidence Act before moving the application for direction to produce the said documents. Accordingly, this Court disposed of the said petitions, thereby granting liberty to the petitioner to pursue the matter afresh by leading secondary evidence before the learned Trial Court. The petitioner also alleged to have issued notices to the concerned respondents for filing the original documents/all the exhibited documents. In view of liberty granted by the High Court in Criminal Writ Petition No.1275/2016 and Criminal Writ Petition No.1248/2016, the petitioner filed applications at Exhibit 198 and at Exhibit 210 under Sec. 65 and 63 (2) of Indian Evidence Act, seeking permission to lead secondary evidence for documents at Exhibits 130 to 153, 154 collectively and Exh.155 in R.C.C. No.1937/2002 and at Exhibits 89 to 93, 96 to 99 and 100 in R.C.C. No.1936/2012. The said applications at Exhibit 198 and Exhibit 210 came to be disposed of vide order dtd. 30/06/2017, by observing that the documents under question are already exhibited and therefore, said applications at Exhibit 198 and Exhibit 210 came to be disposed of accordingly. Being aggrieved by the said order dtd. 30/06/2017, the petitioner has approached to the High Court on 24/11/2017 by filing Criminal Writ Petition No.1630/2017 and Criminal Writ Petition No.1631/2017. The said writ petitions came to be partly allowed by order dtd. 27/08/2018 by quashing the said order dtd. 30/06/2017 and relegating the matter to the Trial Court by observing that, if the originals are not produced by party in whose custody those documents are lying, then permission to lead secondary evidence is required to be granted. Thereafter, vide the impugned order dtd. 26/09/2018, learned Judicial Magistrate First Class, Aurangabad, rejected applications at Exhibit 198 in R.C.C. No.1937/2012 and application at Exhibit 210 in R.C.C. No.1936/2012. Therefore, the petitioner has approached this Court through the instant writ petitions for permission to lead secondary evidence of documents which are exhibited.