Full Judgment Text
2025:BHC-AUG:37404
1463.18crwp
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1463 OF 2018
WITH
CRIMINAL APPLICATION NO.3140 OF 2019
IN
CRIMINAL WRIT PETITION NO.1463 OF 2018
Munawar Ahmed Naeem Ahmed,
Age: 42 years, Occu: Nil,
R/o. Plot No.40, New S.T. Colony,
Kat Kat Gate, Aurangabad ….PETITIONER
VERSUS
1. Dr. Abdul Gaffar Quadari
s/o Abdul Razzakh,
Age: 58 years, Occu: Medical Practitioner,
R/o. Seema Nursing Home,
Roshan Gate, Aurangabad
2. Smt. Siraj Siddiqui,
Age: 60 years, Occu: Service,
R/o. Zia-ul-Ulum Boys School,
Town Hall, Aurangabad
3. Mahesh Motilal Pandure,
Age: Major, Occu: Service,
R/o. Everest Education Society,
Roshan Gate, Aurangabad
4. Shaikh Sohel Shaikh Jalil,
Age: Major, Occu: Service,
R/o. Everest Education Society,
Roshan Gate, Aurangabad
5. Smt. Khan Humera,
Age:Major, Occu: Service,
R/o. Everest Education Society,
Roshan Gate, Aurangabad
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6. Smt. Siddiqui Farnaz Sultan,
D/o Mohammad Naim,
Age:Major, Occu: Service,
R/o. Everest Education Society,
Roshan Gate, Aurangabad
7. Smt. Jamila Begum D/o. Abdul Khaliq,
Age: Major, Occu: Service,
R/o. Everest Education Society,
Roshan Gate, Aurangabad
8. Smt. Sayeda Banu D/o. Ahemmad Alikhan,
Age: Major, Occu: Service,
R/o. Everest Education Society,
Roshan Gate, Aurangabad ….RESPONDENTS
WITH
CRIMINAL WRIT PETITION NO.1464 OF 2018
Munawar Ahmed Naeem Ahmed,
Age: 42 years, Occu: Nil,
R/o. Plot No.40, New S.T. Colony,
Kat Kat Gate, Aurangabad ….PETITIONER
VERSUS
1. Dr. Abdul Gaffar Quadari
s/o Abdul Razzakh,
Age: 58 years, Occu: Medical Practitioner,
R/o. Seema Nursing Home,
Roshan Gate, Aurangabad
2. Mohammad Mukhtaroddin,
Age: 60 years, Occu: Service,
R/o Patni Complex, Kabadipura,
Juna Bazar, Aurangabad
3. Nagare Dnyaneshwar Shriram,
Age: Major, Occu: Service,
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R/o. Everest Education Society,
Roshan Gate, Aurangabad
4. Nilofar Shakir,
Age: Major, Occu: Service,
R/o. Everest Education Society,
Roshan Gate, Aurangabad ….RESPONDENTS
…..
Mr Z. H. Farooqui, Advocate h/f Mr N. V. Gaware, Advocate for
Petitioner in both petitions
Mr N. B. Khandare, Senior Advocate i/b Mr S. S. Kazi, Advocate for
Respondent No.1
…..
CORAM : SUSHIL M. GHODESWAR, J.
RESERVED ON : 08 DECEMBER 2025
PRONOUNCED ON : 24 DECEMBER 2025
JUDGMENT :-
1. By these respective petitions, the petitioner prays for
quashing and setting aside the order dated 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
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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 Sections 467, 468,
471, 420 read with Section 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
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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 dated 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 dated 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
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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 Section 66 of the Indian Evidence Act, by filing
application at Exhibit 181 and application at Exhibit 190 under Section
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 dated 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
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had directed to issue notices to all the accused persons as per Section
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 Section 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 dated 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 dated 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
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No.1631/2017. The said writ petitions came to be partly allowed by
order dated 27/08/2018 by quashing the said order dated 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 dated 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.
4. Heard learned Advocate Mr Farooqui, holding for
Advocate Mr Gaware for the petitioner and learned Senior Advocate
Mr Khandare instructed by Advocate Mr Kazi for respondent No.1.
5. Mr Farooqui, learned Advocate for petitioner submits that
the impugned order passed by the learned Chief Judicial Magistrate,
Aurangabad dated 26/09/2018 is illegal and he failed to appreciate
provisions under Section 65 and 63(2) of the Indian Evidence Act.
According to him, the documents sought to be proved by the petitioner
are in the possession of respondents/accused, and therefore, it was
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incumbent on the part of learned Trial Court to call for originals which
are in custody of accused persons. According to him, the accused
persons are possessing the original documents and therefore, power
under Section 65 and 66 of the Indian Evidence Act have to be invoked
by the learned Trial Court, however, the learned Trial Court has erred
in denying opportunity to lead secondary evidence to the petitioner.
6. While relying upon the judgment in the matter of Jagmail
Singh and another Vs. Karamjit Singh and others, (2020) 5
Supreme Court Cases 178, learned Advocate for petitioner submits
that, mere admission in evidence and making exhibit of a document is
not enough, as the same has to be proved in accordance with law, and
therefore, factual foundational evidence must be adduced.
Accordingly, Mr Farooqui submits that the instant petitions may be
allowed and the petitioner may be permitted to lead secondary
evidence.
7. Per contra, learned Senior Advocate Mr Khandare
strenuously opposes the instant writ petitions. He submits that the
learned Chief Judicial Magistrate, Aurangabad has rightly rejected
application at Exh.198 in R.C.C. No.1937/2012 and application at
Exh.210 in R.C.C. No.1936/2012. According to him, photocopy
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prepared from photocopy of the private document, which is not
compared with the original one, can not become secondary evidence.
He submits that the petitioner has moved application for seeking
permission to lead secondary evidence after complainant submitted
evidence closed pursis and after the matters were proceeded for
recording of statements of accused under Section 313 of the Code of
Criminal Procedure, and therefore, the instant petitions filed by the
petitioner for leading secondary evidence may not be entertained. He
then submits that there is no foundation laid down either in complaint,
verification or in evidence of complainant to adduce secondary
evidence. He then submits that the petitioner/complainant has stated in
his cross-examination that he has not seen the originals and he does
not know in whose possession those original documents are lying. He
submits that the petitioner has filed as many as 8 private criminal
complaints and three criminal complaints of outraging modesty of his
wife. He has also filed three criminal writ petitions before this Court
and as well as one public interest litigation. In addition to this, he has
also filed three cases before Charity authorities to become member of
trust and he is trying to remove respondent No.1 and his team from the
trust and wants to get appoint himself alongwith his companions as
trustees. For the said motive, he had filed three civil writ petitions
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before the High Court against respondent No.1. According to him, the
petitioner is an unscrupulous litigant and having no case of merits. He
further submits that in the instant matters, he filed application for
leading secondary evidence after the statements of accused persons
under Section 313 of the Code of Criminal Procedure came to be
recorded, and therefore, he strongly opposes the instant petitions and
submits that the petitioner is not entitled to grant any relief by this
Court.
8. After going through the submissions advanced by the
learned Advocates for the respective sides, it is clear that the petitioner
has approached to the learned Judicial Magistrate First Class for
permission to lead secondary evidence. As per the provisions of
Section 63 of the Indian Evidence Act, secondary evidence includes
four categories viz. (i) certified copies; (ii) certified copies made from
the original by mechanical process; (iii) copies made from or
compared with the original and (iv) counterparts of documents as
against non-executing parties and oral accounts by person who have
seen the original. All these four categories are essential for leading
secondary evidence. However, in the present cases, if the copies of
private documents obtained under the provisions of the Right to
Information Act, which were never compared with the original sought
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to be lead as secondary evidence. In the applications at Exhibit 198
and Exhibit 210, in paragraph 5, complainant/petitioner himself has
stated that the documents are true copies of original documents and
while issuing the same, were not compared with the originals and
therefore, secondary evidence cannot be adduced as the complainant
and his witness never seen the originals. The complainant in his cross-
examination has also admitted that he had not seen originals and does
not know in whose possession those documents are lying. To lead
secondary evidence, foundation has to be led in the plea. There is no
whisper in the complaint as well as in the evidence given by
complainant about in whose possession the said original documents are
lying. Since there is no pleadings in the complaint as well as in the
evidence of the parties, the petitioner cannot claim the permission for
leading secondary evidence.
9. The Hon’ble Apex Court in the judgment of Dhanpat Vs.
Sheo Ram (deceased), thr. legal representatives and others, (2020)
16 SCC 209, in its paragraph No.22 has observed thus :-
“22. There is no requirement that an application is required to
be filed in terms of Section 65(c) of the Evidence Act before the
secondary evidence is led. A party to the lis may choose to file
an application which is required to be considered by the trial
court but if any party to the suit has laid foundation of leading
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of secondary evidence, either in the plaint or in evidence, the
secondary evidence cannot be ousted for consideration only
because an application for permission to lead secondary
evidence was not filed.”
10. Bare perusal of aforesaid paragraph reveals that, if any
party to the suit has led foundation of leading secondary evidence,
either in the plaint or in evidence, the secondary evidence cannot be
ousted for consideration and an application for permission to lead
secondary evidence was not filed. Here, either in the plaint or
evidence, no foundation has laid down either in the plaint or in the
evidence.
11. In case of Kumarpal N. Shah (since deceased) thr.
L.Rs. Vs. Universal Mechanical Works Pvt. Ltd., Mumbai and
others, 2020 (1) Mh.L.J. 422, this Court, while considering scope of
public documents or private document, had observed that under the
Right to Information Act, usually the photostat copies of the
documents which are certified as true copies, which cannot be equated
with the certified copies mentioned in the Evidence Act. If the official
under the Right to Information Act certifies and supplies private
documents, it still remains a private document. However, public
documents, which are prepared by the public servant in discharge of
his public duty and said documents are filed in public office, the
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certified copies of public documents can be admitted in judicial
proceedings and are usually proved by the secondary evidence. The
Court is bound to presume its genuineness from the duly certified
secondary copies.
12. In the judgment of Yashwant Rambhau Chondhe and
others Vs. Vilas Bapurao Shinde, 2007 (5) Bom C.R. 335 , this Court
was pleased to observe that secondary evidence can be allowed to be
led only when there is a foundation laid by the party concerned for
leading it.
13. As rightly pointed out by learned Advocate for respondent
No.1 that the petitioner has not led the foundation to allow him to lead
the secondary evidence, the case of the petitioner fails. The petitioner
in throughout his pleadings, has no where stated that the documents of
the said exhibited documents are with the respondents/accused. When
he came to know about the said issue, he approached the Trial Court
by filing application under Section 66 of the Indian Evidence Act, after
recording statements under the provisions of Section 313 of the Code
of Criminal Procedure. Therefore, in my view, since there is no
foundation led by the petitioner to lead secondary evidence, the both
the petitions are rejected. Needless to state, the interim order, if any,
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stands vacated. Trial Court is directed to proceed with the matters and
complete the trial within six months.
14. Criminal Application No.3140/2019 also stands disposed
of.
15. After pronouncement of this judgment, the learned
Advocate for the petitioner requests for staying effect and operation of
this judgment. However, this request strongly opposes by the learned
learned APP.
16. In view of strong opposition by the learned APP and since
this matter is pending since 2018 and it is now decided on merits,
therefore, the said request is rejected.
[SUSHIL M. GHODESWAR, J.]
sjk
1463.18crwp
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1463 OF 2018
WITH
CRIMINAL APPLICATION NO.3140 OF 2019
IN
CRIMINAL WRIT PETITION NO.1463 OF 2018
Munawar Ahmed Naeem Ahmed,
Age: 42 years, Occu: Nil,
R/o. Plot No.40, New S.T. Colony,
Kat Kat Gate, Aurangabad ….PETITIONER
VERSUS
1. Dr. Abdul Gaffar Quadari
s/o Abdul Razzakh,
Age: 58 years, Occu: Medical Practitioner,
R/o. Seema Nursing Home,
Roshan Gate, Aurangabad
2. Smt. Siraj Siddiqui,
Age: 60 years, Occu: Service,
R/o. Zia-ul-Ulum Boys School,
Town Hall, Aurangabad
3. Mahesh Motilal Pandure,
Age: Major, Occu: Service,
R/o. Everest Education Society,
Roshan Gate, Aurangabad
4. Shaikh Sohel Shaikh Jalil,
Age: Major, Occu: Service,
R/o. Everest Education Society,
Roshan Gate, Aurangabad
5. Smt. Khan Humera,
Age:Major, Occu: Service,
R/o. Everest Education Society,
Roshan Gate, Aurangabad
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6. Smt. Siddiqui Farnaz Sultan,
D/o Mohammad Naim,
Age:Major, Occu: Service,
R/o. Everest Education Society,
Roshan Gate, Aurangabad
7. Smt. Jamila Begum D/o. Abdul Khaliq,
Age: Major, Occu: Service,
R/o. Everest Education Society,
Roshan Gate, Aurangabad
8. Smt. Sayeda Banu D/o. Ahemmad Alikhan,
Age: Major, Occu: Service,
R/o. Everest Education Society,
Roshan Gate, Aurangabad ….RESPONDENTS
WITH
CRIMINAL WRIT PETITION NO.1464 OF 2018
Munawar Ahmed Naeem Ahmed,
Age: 42 years, Occu: Nil,
R/o. Plot No.40, New S.T. Colony,
Kat Kat Gate, Aurangabad ….PETITIONER
VERSUS
1. Dr. Abdul Gaffar Quadari
s/o Abdul Razzakh,
Age: 58 years, Occu: Medical Practitioner,
R/o. Seema Nursing Home,
Roshan Gate, Aurangabad
2. Mohammad Mukhtaroddin,
Age: 60 years, Occu: Service,
R/o Patni Complex, Kabadipura,
Juna Bazar, Aurangabad
3. Nagare Dnyaneshwar Shriram,
Age: Major, Occu: Service,
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R/o. Everest Education Society,
Roshan Gate, Aurangabad
4. Nilofar Shakir,
Age: Major, Occu: Service,
R/o. Everest Education Society,
Roshan Gate, Aurangabad ….RESPONDENTS
…..
Mr Z. H. Farooqui, Advocate h/f Mr N. V. Gaware, Advocate for
Petitioner in both petitions
Mr N. B. Khandare, Senior Advocate i/b Mr S. S. Kazi, Advocate for
Respondent No.1
…..
CORAM : SUSHIL M. GHODESWAR, J.
RESERVED ON : 08 DECEMBER 2025
PRONOUNCED ON : 24 DECEMBER 2025
JUDGMENT :-
1. By these respective petitions, the petitioner prays for
quashing and setting aside the order dated 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
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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 Sections 467, 468,
471, 420 read with Section 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
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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 dated 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 dated 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
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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 Section 66 of the Indian Evidence Act, by filing
application at Exhibit 181 and application at Exhibit 190 under Section
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 dated 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
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had directed to issue notices to all the accused persons as per Section
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 Section 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 dated 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 dated 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
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No.1631/2017. The said writ petitions came to be partly allowed by
order dated 27/08/2018 by quashing the said order dated 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 dated 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.
4. Heard learned Advocate Mr Farooqui, holding for
Advocate Mr Gaware for the petitioner and learned Senior Advocate
Mr Khandare instructed by Advocate Mr Kazi for respondent No.1.
5. Mr Farooqui, learned Advocate for petitioner submits that
the impugned order passed by the learned Chief Judicial Magistrate,
Aurangabad dated 26/09/2018 is illegal and he failed to appreciate
provisions under Section 65 and 63(2) of the Indian Evidence Act.
According to him, the documents sought to be proved by the petitioner
are in the possession of respondents/accused, and therefore, it was
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incumbent on the part of learned Trial Court to call for originals which
are in custody of accused persons. According to him, the accused
persons are possessing the original documents and therefore, power
under Section 65 and 66 of the Indian Evidence Act have to be invoked
by the learned Trial Court, however, the learned Trial Court has erred
in denying opportunity to lead secondary evidence to the petitioner.
6. While relying upon the judgment in the matter of Jagmail
Singh and another Vs. Karamjit Singh and others, (2020) 5
Supreme Court Cases 178, learned Advocate for petitioner submits
that, mere admission in evidence and making exhibit of a document is
not enough, as the same has to be proved in accordance with law, and
therefore, factual foundational evidence must be adduced.
Accordingly, Mr Farooqui submits that the instant petitions may be
allowed and the petitioner may be permitted to lead secondary
evidence.
7. Per contra, learned Senior Advocate Mr Khandare
strenuously opposes the instant writ petitions. He submits that the
learned Chief Judicial Magistrate, Aurangabad has rightly rejected
application at Exh.198 in R.C.C. No.1937/2012 and application at
Exh.210 in R.C.C. No.1936/2012. According to him, photocopy
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prepared from photocopy of the private document, which is not
compared with the original one, can not become secondary evidence.
He submits that the petitioner has moved application for seeking
permission to lead secondary evidence after complainant submitted
evidence closed pursis and after the matters were proceeded for
recording of statements of accused under Section 313 of the Code of
Criminal Procedure, and therefore, the instant petitions filed by the
petitioner for leading secondary evidence may not be entertained. He
then submits that there is no foundation laid down either in complaint,
verification or in evidence of complainant to adduce secondary
evidence. He then submits that the petitioner/complainant has stated in
his cross-examination that he has not seen the originals and he does
not know in whose possession those original documents are lying. He
submits that the petitioner has filed as many as 8 private criminal
complaints and three criminal complaints of outraging modesty of his
wife. He has also filed three criminal writ petitions before this Court
and as well as one public interest litigation. In addition to this, he has
also filed three cases before Charity authorities to become member of
trust and he is trying to remove respondent No.1 and his team from the
trust and wants to get appoint himself alongwith his companions as
trustees. For the said motive, he had filed three civil writ petitions
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before the High Court against respondent No.1. According to him, the
petitioner is an unscrupulous litigant and having no case of merits. He
further submits that in the instant matters, he filed application for
leading secondary evidence after the statements of accused persons
under Section 313 of the Code of Criminal Procedure came to be
recorded, and therefore, he strongly opposes the instant petitions and
submits that the petitioner is not entitled to grant any relief by this
Court.
8. After going through the submissions advanced by the
learned Advocates for the respective sides, it is clear that the petitioner
has approached to the learned Judicial Magistrate First Class for
permission to lead secondary evidence. As per the provisions of
Section 63 of the Indian Evidence Act, secondary evidence includes
four categories viz. (i) certified copies; (ii) certified copies made from
the original by mechanical process; (iii) copies made from or
compared with the original and (iv) counterparts of documents as
against non-executing parties and oral accounts by person who have
seen the original. All these four categories are essential for leading
secondary evidence. However, in the present cases, if the copies of
private documents obtained under the provisions of the Right to
Information Act, which were never compared with the original sought
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to be lead as secondary evidence. In the applications at Exhibit 198
and Exhibit 210, in paragraph 5, complainant/petitioner himself has
stated that the documents are true copies of original documents and
while issuing the same, were not compared with the originals and
therefore, secondary evidence cannot be adduced as the complainant
and his witness never seen the originals. The complainant in his cross-
examination has also admitted that he had not seen originals and does
not know in whose possession those documents are lying. To lead
secondary evidence, foundation has to be led in the plea. There is no
whisper in the complaint as well as in the evidence given by
complainant about in whose possession the said original documents are
lying. Since there is no pleadings in the complaint as well as in the
evidence of the parties, the petitioner cannot claim the permission for
leading secondary evidence.
9. The Hon’ble Apex Court in the judgment of Dhanpat Vs.
Sheo Ram (deceased), thr. legal representatives and others, (2020)
16 SCC 209, in its paragraph No.22 has observed thus :-
“22. There is no requirement that an application is required to
be filed in terms of Section 65(c) of the Evidence Act before the
secondary evidence is led. A party to the lis may choose to file
an application which is required to be considered by the trial
court but if any party to the suit has laid foundation of leading
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of secondary evidence, either in the plaint or in evidence, the
secondary evidence cannot be ousted for consideration only
because an application for permission to lead secondary
evidence was not filed.”
10. Bare perusal of aforesaid paragraph reveals that, if any
party to the suit has led foundation of leading secondary evidence,
either in the plaint or in evidence, the secondary evidence cannot be
ousted for consideration and an application for permission to lead
secondary evidence was not filed. Here, either in the plaint or
evidence, no foundation has laid down either in the plaint or in the
evidence.
11. In case of Kumarpal N. Shah (since deceased) thr.
L.Rs. Vs. Universal Mechanical Works Pvt. Ltd., Mumbai and
others, 2020 (1) Mh.L.J. 422, this Court, while considering scope of
public documents or private document, had observed that under the
Right to Information Act, usually the photostat copies of the
documents which are certified as true copies, which cannot be equated
with the certified copies mentioned in the Evidence Act. If the official
under the Right to Information Act certifies and supplies private
documents, it still remains a private document. However, public
documents, which are prepared by the public servant in discharge of
his public duty and said documents are filed in public office, the
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certified copies of public documents can be admitted in judicial
proceedings and are usually proved by the secondary evidence. The
Court is bound to presume its genuineness from the duly certified
secondary copies.
12. In the judgment of Yashwant Rambhau Chondhe and
others Vs. Vilas Bapurao Shinde, 2007 (5) Bom C.R. 335 , this Court
was pleased to observe that secondary evidence can be allowed to be
led only when there is a foundation laid by the party concerned for
leading it.
13. As rightly pointed out by learned Advocate for respondent
No.1 that the petitioner has not led the foundation to allow him to lead
the secondary evidence, the case of the petitioner fails. The petitioner
in throughout his pleadings, has no where stated that the documents of
the said exhibited documents are with the respondents/accused. When
he came to know about the said issue, he approached the Trial Court
by filing application under Section 66 of the Indian Evidence Act, after
recording statements under the provisions of Section 313 of the Code
of Criminal Procedure. Therefore, in my view, since there is no
foundation led by the petitioner to lead secondary evidence, the both
the petitions are rejected. Needless to state, the interim order, if any,
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stands vacated. Trial Court is directed to proceed with the matters and
complete the trial within six months.
14. Criminal Application No.3140/2019 also stands disposed
of.
15. After pronouncement of this judgment, the learned
Advocate for the petitioner requests for staying effect and operation of
this judgment. However, this request strongly opposes by the learned
learned APP.
16. In view of strong opposition by the learned APP and since
this matter is pending since 2018 and it is now decided on merits,
therefore, the said request is rejected.
[SUSHIL M. GHODESWAR, J.]
sjk