Next are the document Nos. 4 and 5. Document at Sr. No.4 are the original letters dated 30.1.2009 and 6.2.2009 sent by the accused Nos. 1 and 2 and addressed to the complainant. Both these documents purport to have been signed by the accused Nos. 1 and 2. These letters were received by the complainant first letter at Sr.No.4 does not bear the date of sending. However, it purports to have been received on 30.1.2009 by Ashwin Sheth, the Managing Director of the complainant company. The letter was addressed to him. By this letter, the accused persons admitted to have received amount of Rs.25 crore on 25.2.2008 vide cheque No.820140 drawn on ICICI Bank. In the second para, it was stated that as the negotiation in respect of the property did not materialize, both the accused had handed over a cheque of Rs.25 crore dated 7.1.2009 drawn on Indian Overseas Bank to the complainant for repayment of the said amount. In the last para, they requested to deposit the said cheque on 5.2.2009. The document No.5 is the original letter dated 6.2.2009. It was issued in continuation of the earlier letter whereby the accused persons agreed to pay to the complainant interest at 18% per annum on the amount of Rs.25 crore till repayment. Both these original letters are on the letterhead of accused No.1 Ashvin C. Shah to the petitioner and both these letters purport to have been signed by both the accused persons. It is to be noted that before these letters were issued, the accused No.1 had issued a cheque dated 7.1.2009 in favour of the complainant and that original cheque is admitted. As stated earlier, no serious objection is taken to admission and execution of that cheque in evidence. The above refererd two letters purporting to have been sent by the accused persons and addressed to the Managing Director of the complainant were received by the Managing Director. Not only this, in response to the statutory notice dated 18.2.2009, the accused had sent the reply dated 6.3.2009.
The original reply of accused dated 6.3.2009 is at Sr.No.12. Under Sec. 47 of the Indian Evidence Act, when the Court has to form an opinion as to person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed, that it was or was not written or signed by that person, is a relevant fact.
Explanation to Sec. 47 provides that a person is said to be acquainted with the handwriting of another person when he has seen that person write or when he has received documents purporting to be written by that person in answer to the document written by himself or under his authority and addressed to that person or when in the ordinary course of business the document purporting to be written by that person have been habitualy submitted to him. In the present case, the two letters referred above, were received in the office of the complainant in the ordinary course of business and in respect of the transaction which had taken place between the complainant and the accused. The complainant's witness Sharad Doshi was the Executive Assistant to the Chairman-cum-Managing Director of the complainant company. In this capacity, he was expected to have received and seen the letters received from the accused persons by his boss ie.
Managing Director. In paras 11 and 12 of his affidavit in evidence, witness Sharad Doshi specifically stated that the said letters were duly signed by both the accused Nos. 1 and 2 and he knows the signature of the accused Nos. 1 and 2 and could identify the same. In view of this statement on affidavit, and the provisions of Explanation to Sec. 47, the original letters purporting to have been signed by and received from the accused Nos. 1 and 2 could be admitted in evidence.
Bombay High Court
Ashish C. Shah vs M/S. Sheth Developers Pvt.Ltd. on 16 March, 2011
Bench: J. H. Bhatia
Criminal writ petition NO.40/2011
Citation:2011 (4) AIR Bom R 266
