SUBRATA KUMAR DAS Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) AN order dated 1. 8. 2007 passed by learned Metropolitan Magistrate, 12th Court, Calcutta in G. R. Case No. 2986/b of 2004 under Section 120b/ 420/467/468/471 of the I. P. C. read with Section 13 (1) (d) and Section 13 (2) of the Prevention of Corruption Act, 1988 is under challenge. P. W. 4 was examined by the prosecution i. e. C. B. I, and through him certain documents were marked as Exbt. 3, Exbt. 3/1, Exbt. 4, Exbt. 5 and Exbt. 3/2. It appears from examination-in-chief of P. W. 4 who is an ex-employee of State Sank of India, Park Street Branch that the said witness adduced formal proof of an application submitted by the present petitioner on 10-11 -2001 along with documents which were marked Exbt. 3/1 after recording objection of the defence. Exbt. 4 is said to be a search report submitted by one Ashoke Pal whose signature the witness claimed to be acquainted with. Exbt. 5 is the report submitted by the valuer bearing the signature of one B. R. Das whose signature the witness claimed to be acquainted with. This witness further adduced evidence concerning'formal proof of the papers of "dasco Interior" which was marked as Exbt. 3 and also his own report with respect to guarantor Tarapada Mondal which was marked as Exbt. 3. /2. Before the learned Magistrate objection was taken to the effect that only the signature of the persons could be exhibited but not the entire report against which the prosecution argument was that the documents were received in official course of business and P. W. 4 being an official of the S. B. I. was conversant with the documents and also the signatures of the persons who signed the documents. The question was whether the documents should have been marked exhibits, especially Exbt. 4 when the persons who were the authors of the document were not called upon to testify to them as witnesses. Learned Magistrate observed that both the documents were submitted by empaneled person as per the statement of P. W. 4 and they were typed documents being received in official course of transaction and P. W. 4 further stated about the factum of the receipt of the documents and proved the signatures of the persons in the documents. It was further observed by the learned Magistrate that while marking the documents as Exhibits the objection of the defence was recorded keeping in mind the observation of the Hon'ble Supreme Court in Bipin Shantilal Panchal v. State of Gujarat, 2001 C Cr LR (SC) 322 wherein their Lordships of the Supreme Court observed as follows :-"the above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial Court, can determine the correctness of the view taken by the trial Court regarding that objection, without bothering to remit the case to the trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses. "

(2.) ACCORDINGLY, the learned Magistrate disposed of the matter.

(3.) IN support of the revisional application learned Advocate for the petitioner submitted that the order of the learned Magistrate was without any jurisdiction since Section 61 of the Indian Evidence Act clearly makes it a mandate that the contents of documents have to be proved by either primary evidence or by secondary evidence and evidence of P. W. 4 through whom the two documents were marked Exbts. cannot be said to be partaking of the character of the primary evidence. It has been submitted by learned Advocate for the petitioner further that it was Ashoke P,al who should have been examined by the prosecution to prove Exbt. 4 and the learned Court should have examined him as a Court witness but instead of adopting the procedure in terras of Section 311 of the Cr. P. C. the learned Magistrate made the document marked Exbt. 4. Learned Advocate for the petitioner draws my attention to a decision of the Hon'ble Supreme Court as reported in Javer Chand and Ors. v. Pukhraj Surana, AIR 1981 SC 1655, Bharat Petroleum Corporation Ltd. and Anr. v. N,r. Vairamani and Anr. , (2004)8 SCC 579 and Ramji Dayawala and Sons (P) Ltd. v. Invest Import. , AIR 1961 SC 2085. The decision in Javer Chand (supra) does not appear to be applicable in the present situation because that was a case where question arose as to the admissibility of a document on the ground that it was not stamped or was not properly stamped and their Lordships held that once a document has been admitted in evidence it is not open either to the trial Court itself or to a Court of Appeal or Revision to go behind the order. It was observed that the Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an Exbt. in the case. This decision does in no way help the petitioner. The decision in Ramji Dayawala (supra) is on the point that mere proof of the hand writing on a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the hand writing and executive of the document would not furnish evidence of the truth of the facts of contents of the document. There Lordships observed as follows :-"once the receipt of the letter and the cable were admitted or proved coupled with the fact that even after the dispute arose and before the suit in this case was filed, in the correspondence that ensured between the parties, the respondent did not make any overt or covert reference to the arbitration agreement and utter failure of the respondent to reply to the letter and the cable controverting the averments made therein would unmistakably establish the truth of the averments made in the letter. The averments contained in the letter and the cable were satisfactorily proved. "