What is difference between document and instrument?

 Document vs. Instrument

Document: Defined under Section 3(18) of the General Clauses Act, 1897. A document can be any written or recorded proof like letters, emails, photographs, or agreements. Basically, anything that can be used as evidence.

Section 2(d) of BSA 2023- "Document" means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records.

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Supreme Court: The revisional court should not decide revision on the basis of photocopy of a document

On the question of ratification of the resolution allegedly passed on 28th June, 2005, the High Court held that the Sessions Judge was not justified in entertaining a photocopy of the document relied upon by the accused at the revisional stage, placing implicit reliance upon the same and interfering with the on-going proceedings before the Magistrate. The High Court observed: 

The original document was not before the Court and only a photocopy of the document purporting to be minutes of the meeting was filed and on the basis of such photocopy produced during the revision application by the accused persons, the learned Addl. Sessions Judge jumped to the conclusion that such a resolution was passed and the acts of 28.6.2005 were ratified. In my opinion, it will not be appropriate for the Addl. Sessions Judge. {Para 6}

10. It is interesting to note that even in the present SLPs the Petitioner has filed an unsigned copy of the alleged minutes of the meeting dated 19th July, 2005. We do not think that we can possibly look into that document without proper proof and without verification of its genuineness. There was and is no clear and unequivocal admission on the record, at least none was brought to our notice, regarding the genuineness of the document or its probative value. The complainant-Respondent in this petition was also not willing to concede that the document relied upon could possibly result in the ratification of an act which was non est being a mere forgery. At any rate the document could not be said to be of unimpeachable character nor was there any judicial compulsion much less an exceptional or formidable one to allow its production in revisional proceedings or to accept it as legally admissible evidence for determining the correctness of the order passed by the trial Court. That apart whether or not document dated 19th July, 2005, could possibly have the effect of ratifying the resolution allegedly passed on 28th June, 2005 was also a matter that could not be dealt with summarily, especially when the former did not even make a reference to the latter.

 IN THE SUPREME COURT OF INDIA

SLP (Crl.) No. 4606 of 2011

Decided On: 16.12.2011

Helios and Matheson Information Technology Ltd. and Ors. Vs. Rajeev Sawhney and Ors.

Hon'ble Judges/Coram:

B.S. Chauhan and T.S. Thakur, JJ.

Author: T.S. Thakur, J.

Citation: AIR 2012 SUPREME COURT 660, 2012 (1) SCC 699,MANU/SC/1502/2011.

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Whether the court can presume that document is executed if a person admits his signature on it?

 Mulla‟s The Registration Act (supra) notes the following in relation to the meaning of “execution”19:

“Admission of Execution

…It is submitted that the mere proof or admission that a person's signature appears on a document cannot by itself amount to execution of the document...Where a person had signed a document after being aware of the nature of the document, he has executed the document, and, it is submitted, the Registrar cannot go into the question whether the document has been obtained by coercion; but when a signature has been obtained by false representations and the ostensible executant did not sign with the intention of being bound by the terms of the document, such a person cannot be said to have executed the document.”

(emphasis supplied)

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

Coram:  DR. DHANANJAYA Y. CHANDRACHUD; J., A.S. BOPANNA; J., BELA M. TRIVEDI; J.

 Civil Appeal No. 2929 of 2022;

Veena Singh (Dead) Through LR Versus The District Registrar/Additional Collector (F/R) And Another

Dated May 10, 2022

Author: Dr. Dhananjaya Y. Chandrachud, J;

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Whether a party can claim the right of easement by their partition deed if their ancestors did not have easement right?

Hence, I find that the alleged easement right was not proved either by the defendants 1 and 2 or by their vendors. While things be so, they cannot create by way of deed of partition entered between the defendants themselves in the year 1978, when no such right was existed with the ancestors of the defendants as could be seen from Ex. B3. The defendants are not disputing the title of the plaintiff in S. No. 88/3 as their vendors(defendants) were parties to the earlier partition. Thus, as such when there is no reference with regard to the alleged cart track in the plaintiff's property in those parent documents, the defendants herein cannot claim easement right by way of grant.

{Para 35}

38. Hence I find that the decision rendered by Justice Dr. G. JAYACHANDRAN reported in MANU/TN/0413/2019 : 2019 (5) CTC 80 [K. Kalianna Gounder and another v. Sundararaj and another] is squarely applicable to the facts and circumstances of this case, wherein it is held that easement right cannot be created by reading a recitals any document by the parties themselves it has to be proved in the manner known to law as prescribed under the Indian Easement Act. It has been further held that easement right is statutory right subject to the conditions and pre-requisite conditions and the burden of prove as stated in the Indian Easement Act and it is "neither can be created nor be destroyed by reading of recital in document to the convenience of the parties". If any such recital has been inserted as to the existence of any such right in the nature of easement right, which are liable to be rejected at the threshold since parties cannot conceive easement right upon themselves on some bodies land, which is the crux and nucleus of the right of easement.

IN THE HIGH COURT OF MADRAS

S.A. No. 302 of 2012, M.P. No. 1 of 2012 and C.M.P. No. 411 of 2022

 Nallammal and Ors.  Vs. Sengoda Gounder and Ors.

Hon'ble Judges/Coram:

R.M.T. Teekaa Raman, J.

Decided On: 25.03.2022

Citation: MANU/TN/2258/2022

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Whether a party must examine author of a document if he has not his signatures on that document?

  The High Court, in the impugned judgment erred in holding that the appellant had not examined the author of the documents. Such reasoning is absolutely erroneous as in the written statement, the respondents had not denied their signatures on the documents referred to by the appellant but pleaded duress in executing of these large number of documents. The witness examined by respondent no.1 in his cross examination admitted his signature or that of the representative of company on invoices, debit notes and on ST-1 Form. The respondent had led no evidence in respect of fraud or duress apart from self-serving statement. The consignment of goods was sent from the month of November 1985 to January 1986. The respondent had signed large number of documents during this period. However, no complaint was made to any person or authority or even to the plaintiff. It is a denial of receipt of goods without any basis raised only in the written statement filed. Such stand is wholly bereft of any truth and is thus rejected. {Para 20} 

Supreme Court

JUSTICE HEMANT GUPTA JUSTICE V. RAMASUBRAMANIAN

M/S STAR PAPER MILLS LIMITED Vs. M/S BEHARILAL MADANLAL JAIPURIA LTD. & ORS.

CIVIL APPEAL NO. 4102 OF 2013

16th December 2021

Author: HEMANT GUPTA, J.

Citation: 2021 ALL SCR (ONLINE) 788

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How to calculate stamp duty payable for execution of various documents?

In the scheme of said Act, Section 3 is the charging section, which, in terms provides that subject to the provisions of said Act and the exemptions contained in Schedule-I thereto, the instruments mentioned in Schedule-I shall be chargeable with duty of the amount as indicated. This means that every instrument mentioned in Schedule-I (unless the same is exempted) would be chargeable to the stamp duty of the amount as indicated in Schedule-I. This is the general rule. Section 4 of the said Act, however constitutes a sort of an exception to the general rule contained in Section 3 of the said Act.

21. Section 4 of the said Act, inter alia, provides that where, in case of any specific instruments, i.e., development agreement, sale, mortgage or settlement, if several instruments are employed for completing the transaction, then the principal instrument only shall be chargeable with duty prescribed in Schedule-I and each of the other instruments shall be chargeable with duty of Rs.100/-instead of the duty, if any, prescribed for it in that schedule. Sub-section 2 of Section 4 of the said Act enables the parties determine for themselves which of the instruments so employed shall for the purposes of sub-section 1, be deemed to be the principal instrument. Sub-section 3 of Section 4 of the said Act provides that where parties fail to determine the principal instrument between themselves, then the officer before whom the instrument is produced may, for the purposes of this section, determine the principal instrument. The proviso to Section 4, which governs the entire Section provides that the duty chargeable on principal instrument so determined shall be the highest duty which would be chargeable in respect of any of the said instruments so employed.

25. From the scheme of Section 4 of the said Act, it is clear that the same is not intended to enable the parties to an instrument, to either evade or avoid payment of proper stamp duty thereon. The provisions of Section 4 of the said Act only exempt parties from rigors of Section 3 of the said Act, which would, in the absence of provisions contained in Section 4 of the said Act, require the parties to pay stamp duty as prescribed under Schedule-I upon each of the several instruments employed in completing one and the same transaction. The limited exemption is therefore, in respect of several instruments employed in completing one and the same transaction, so long as proper duty is paid upon any one of the instruments, which may either have been determined by the parties or by the Officer before whom such instrument is produced for registration as the 'principal instrument'. Further, notwithstanding such determination by the parties or the Officer and notwithstanding the character of such principal instrument, stamp duty thereon shall be the highest duty, which would be chargeable in respect of any of the several instruments so employed for completing one and the same transaction. Upon the remaining instruments again notwithstanding their nomenclature or character, instead of payment of entire stamp duty as prescribed under Schedule-I, there would be sufficient compliance, if duty of Rs.100/-as prescribed under Section 4 of the said Act is paid in respect thereof.

26. In case of Farida Memon and ors. Vs. The Collector of Stamps and ors. Writ Petition No. 1462 of 2008 decided on 18 July 2014 upon which reliance was placed by Mr. Godbole, this Court had the occasion to observe thus:

13] From the scheme of section 4 to the said Act, it appears that the liberty granted to the parties for determining which from out of the series of instruments employed in a single transaction, shall be principal instrument, is basically for sake of convenience of the parties. However, the scheme is not to enable the parties to either evade the stamp duty or for that matter pay stamp duty upon any one of the instruments, which would bear the lowest stamp duty in the series of instruments. On the contrary the proviso, which applies to the entire section makes it clear that the duty chargeable on the instrument, so determined shall be highest duty which would be chargeable in respect of 'any of the said instruments employed'. The expression 'any of the said instruments employed' as appearing in the proviso to section 4 makes it clear that the stamp duty, even upon the principal instrument which may have been determined by the parties themselves, shall be the highest duty which would be chargeable in respect of any of several instruments used in a single transaction of either sale, mortgage, settlement or development agreement.

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 9923 of 2014

Decided On: 30.01.2015

 Prasun Developers Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

M.S. Sonak, J.

Citation: MANU/MH/0111/2015,AIR 2015 (NOC) 541 Bom

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Whether criminal prosecution for forgery is tenable if an issue as to the genuineness of those documents is pending in civil suit?

Be that as it may, in the Summary Suit No. 105/2015, leave to defend was granted to Respondent No. 2-Mahendrakumar on 19.04.2016. On the application filed by Appellant No. 3 in the said Summary Suit No. 105/2015, four receipts filed in the suit were sent to the handwriting expert. The handwriting expert has opined that signatures in all the four receipts did not tally with the sample signatures which were of Respondent No. 2-Mahendrakumar. It was only thereafter, complaint was filed by Mahendrakumar, based on which, FIR No. I-194/2016 was registered on 28.12.2016 against the Appellants for the offences punishable Under Sections 406, 420, 465, 467, 468, 471 and 114 Indian Penal Code. As rightly contended by the learned Counsel for the Appellants, in the Summary Suit No. 105/2015, issue No. 5 has been framed by the Court "whether the Defendant proved that the Plaintiff has fabricated the forged signature illegally and created forged receipts". When the issue as to the genuineness of the receipts is pending consideration in the civil suit, in our view, the FIR ought not to have been allowed to continue as it would prejudice the interest of the parties and the stand taken by them in the civil suit.

19. It is also to be pointed out that in terms of Section 45 of the Indian Evidence Act, the opinion of handwriting expert is a relevant piece of evidence; but it is not a conclusive evidence. It is always open to the Plaintiff-Appellant No. 3 to adduce appropriate evidence to disprove the opinion of the handwriting expert. That apart, Section 73 of the Indian Evidence Act empowers the Court to compare the admitted and disputed writings for the purpose of forming its own opinion. Based on the sole opinion of the handwriting expert, the FIR ought not to have been registered. Continuation of FIR No. I-194/2016, in our view, would amount to abuse of the process of Court and the petition filed by the Appellants Under Section 482 Code of Criminal Procedure in Criminal Misc. Application No. 2735/2017 to quash the FIR I-194/2016 is to be allowed.

Ratio: When issue as to genuineness of documents, forgery of which was the basis of the criminal proceedings, was pending consideration in civil suit, FIR ought not to have been allowed to continue in this case as it would prejudice the interest of parties and the stand taken by them in the civil suit. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 251-252 of 2020 

Decided On: 10.02.2020

 Rajeshbhai Muljibhai Patel  Vs. State of Gujarat and Ors.

Hon'ble Judges/Coram:

R. Banumathi and A.S. Bopanna, JJ.

Citation: MANU/SC/0155/2020,(2020) 3 SCC 794

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Whether court can allow production of document in absence of pleading in respect of that document?

 Indisputably, the assertion regarding transaction covered by sale deed dated 06.01.2006, executed by Vimal Kumar, was not on record of the Trial Court. In absence of any pleadings or existence of facts on the record of the Trial Court, no permission to produce additional documents could be granted. The basic consideration, while allowing the application under Order 8, Rule 1A(3) of the Code is; as to whether the document in question is required for adjudication of the dispute between the parties and whether the defendant was precluded from producing the same along with the written statement, as mandated by Rule 1A of Order VIII of the Code. In absence of any such pleading, the relevance of the document dated 06.01.2006 itself becomes a question mark. The respondent's application did not contain any explanation for inordinate delay in seeking leave to produce the document, which had been executed on 06.01.2006. The application was clearly proscribed or prohibited by the provisions contained in Order VIII, Rule 1A of the Code. The Trial Court has, therefore, clearly erred in arriving at a finding that the sale deed dated 06.01.2006 is relevant.

IN THE HIGH COURT OF RAJASTHAN

S.B. Civil Writ Petition No. 16351 of 2017

Decided On: 30.07.2019

Tulsi Ram Jagannath Agarwal  Vs. Parmeshwar Lal and Ors.

Hon'ble Judges/Coram:

Dinesh Mehta, J.

Citation: AIR 2019 Raj 170

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Bom HC: Document obtained under RTI can not be treated as public document if original is private document

Under RTI, usually the applicant gets photostat copies of the documents which are certified as true copies. They cannot be equated with certified copies mentioned in the Evidence Act. In other words, if the official under RTI certifies and supplies a private document, it still remains a private document. Thus, the RTI Act does not affect the nature of a document.

36. In Datti Kameswari, a learned Single Judge of the High Court of Andhra Pradesh has held that the copies obtained under the Right to Information Act certified by the Authorised Information Officer cannot be termed public documents or primary evidence. Only if the original qualifies to be a public document, then does its certified copy. But if the original is a private document, its copy secured under RTI Act does not get transformed into a public document. In that event, that certified copy of the private document must satisfy the provisions of Evidence Act for secondary evidence.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 8764 of 2018

Decided On: 07.08.2019

 Kumarpal N. Shah Vs.  Universal Mechanical Works Pvt. Ltd.

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Supreme Court: Prosecution should give cloned copy of contents of memory card/pen drive to accused

 If the accused or his lawyer himself, additionally, intends to

inspect the contents of the memory card/pendrive

in question, he can request the Magistrate to provide him inspection in Court, if necessary, even for more than once alongwith his lawyer andI.T. expert to enable him to effectively defend himself during the

trial. If such an application is filed, the Magistrate must consider

the same appropriately and exercise judicious discretion with

objectivity while ensuring that it is not an attempt by the

accused to protract the trial. While allowing the accused and his

lawyer or authorized I.T. expert, all care must be taken that they

do not carry any devices much less electronic devices, including

mobile phone which may have the capability of copying or

transferring the electronic record thereof or mutating the

contents of the memory card/pendrive

in any manner. Such multipronged approach may subserve

 the ends of justice and also effectuate the right of accused to a fair trial guaranteed under Article 21 of the Constitution.

44. In conclusion, we hold that the contents of the memory

card/pen drive being electronic record must be regarded as a

document. If the prosecution is relying on the same, ordinarily,

the accused must be given a cloned copy thereof to enable

him/her to present an effective defence during the trial.

However, in cases involving issues such as of privacy of the

complainant/witness or his/her identity, the Court may be

justified in providing only inspection thereof to the accused and

his/her lawyer or expert for presenting effective defence during

the trial. The court may issue suitable directions to balance the

interests of both sides.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1794 OF 2019

P. Gopalkrishnan @ Dileep Vs State of Kerala 

A.M. Khanwilkar, J.

Dated: November 29, 2019.
Citation: AIR 2020 SC 1,2019 SCC OnLine SC 1532. 

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Whether carbon copy of document signed by parties can be treated as original document?

The

High Court held that a carbon copy of a document which carbon copy

is signed by both the parties cannot be termed as an original

document under Section 62 of the Evidence Act. This finding of the

High Court is absolutely incorrect and against the provision of

Section 62 of the Evidence Act. This carbon copy was prepared in

the same process as the original document and once it is signed by

both the parties, it assumes the character of the original

document.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No(s). 6706/2013

MOHINDER SINGH  Vs JASWANT KAUR 

Dated:SEPTEMBER 11, 2019.

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Whether court can pass judgment on admission on the basis of email and reply exchanged between parties?

In Uttam Singh Dugal & Co. Ltd. v. Union Bank of India MANU/SC/0485/2000 : (2000) 7 SCC 120, the Supreme Court observed that the object of Order 12 Rule 6 CPC is to enable the party to obtain a speedy judgment at least to the extent of the relief to which, according to the admission of the defendant, the plaintiff is entitled. The contention urged before the Supreme Court was that the resolutions or minutes of the meetings of the Board of Directors could not amount to a pleading or come within the scope of Order 12 Rule 6 CPC as such statements were not made in the course of the pleadings or otherwise. However, the Supreme Court observed that when a statement is made to a party and such statement is brought before the Court showing admission of liability, by way of an application filed under Order 12 Rule 6 CPC and the other side has sufficient opportunity to explain the said admission and if such explanation is not accepted by the Court, the trial Court would not be helpless. The Supreme Court further observed that when the trial Court found that the statement made in the proceedings of the Board of Directors meetings and the letter sent as well as the pleadings, when read together, led to an unambiguous and clear admission and only the extent to which the admission was made, being in dispute, the trial Court would have a duty to decide the same and grant a decree. The Supreme Court categorically held that this approach would be unexceptionable.

9. This being the legal position, it is manifest that the opinion of the trial Court that an admission for the purposes of Order 12 Rule 6 CPC necessarily has to be made only in the pleadings cannot be countenanced. Even correspondence can be looked into for the purpose of determining as to whether the requirements of Order 12 Rule 6 CPC are satisfied. The petitioner-plaintiff relies upon not only the e-mails exchanged between the parties but also the reply dated 09.12.2015 of the respondent-defendant through its Advocate, in response to the legal notice dated 10.11.2015 issued by the petitioner-plaintiff. Unfortunately, the trial Court lightly brushed aside this document while coming to the conclusion that no admission had been made in terms of Order 12 Rule 6 CPC. The trial Court seems to have gone mostly by the fact that the e-mails did not mention any 'due amounts' and therefore, there was no admission, though the reply notice dated 09.12.2015 stood on a different footing. As pointed out by the Supreme Court in Charanjit Lal Mehra (supra), an admission in terms of Order 12 Rule 6 CPC can also be inferred from the facts and circumstances of the case. Therefore, the trial Court necessarily had to consider not only the e-mails but also the reply notice dated 09.12.2015, together and in their entirety, before concluding as to whether any admission had been made by the respondent-defendant, warranting exercise of power by the trial Court by taking recourse to Order 12 Rule 6 CPC. As the trial Court failed to undertake this exercise and proceeded on the wrong assumption that for the purposes of Order 12 Rule 6 CPC, an admission necessarily had to be made in writing and only in the course of the pleadings, we are left with no alternative but to set aside the order under revision and remit the matter to the trial Court for consideration afresh of the subject I.A. on its merits and in accordance with law.

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD 

C.R.P. No. 3877 of 2018

Decided On: 20.12.2018

 Blue Cube Germany Assets GmbH and Co. KG Vs. Vivimed Labs Limited

Hon'ble Judges/Coram:

P.V. Sanjay Kumar and M. Ganga Rao, JJ.

Citation: AIR 2019(NOC) 557 Hyd

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Whether any document can be challenged after it is exhibited?

On a document being exhibited, the party against it is being brought on record, is entitled to question it on the ground of it being inadmissible. What is not open to question is the mode of proof put forward that it was irregular or insufficient. I find support from the decision of a Privy Council judgment reported in Gopal Das v. Sri Thakurji, AIR (30) 1943 PC 83.

Rajasthan High Court

Prabhu Dayal vs Suwa Lal And Anr. on 20 August, 1993

Equivalent citations: AIR 1994 Raj 149, 1994 (1) WLC 620

Bench: K Agrawal

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Whether execution of document can be proved if only signature of person on document is proved?

Under Section 67 of the Evidence Act execution of document has to be proved, which denotes a conscious act of subscribing to a document. In order to prove the execution of a document it must be shown that the person executing it consciously subscribed to it in the sense that he put his mark or signature on it after having known and understood its contents. Mere proof that the person's signature appears on the document cannot, by itself, amount to execution of the document. It is also settled that if an illiterate person affixes his thumb mark to a document, the onus to prove that the document was properly explained to the person affixing his thumb mark so as to make him understand its true import is on the person relying on the document.

Madhya Pradesh High Court

Ramjan Khan And Ors. vs Baba Raghunath Dass And Ors. on 5 December, 1990

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Whether incorrect statement in vakalatnama amounts to forgery?

 Applying the ratio of the above decisions, in our view, there
is no prima facie evidence to show that the appellants had
intended to cause damage or injury or any other acts. Since the
disputed version in the vakalatnama appears to be an inadvertent
mistake with no intention to make misrepresentation, in our view,
the direction of the High Court to lodge a criminal complaint
against the appellants cannot be sustained and the same is liable
to be set aside.
22. The learned counsel for the State submitted that in Crime
No.1331/2016, criminal case was registered based on the
direction of the High Court and upon completion of the
investigation, charge sheet has also been filed. As held in Pepsi
Foods Limited and another v. Special Judge Magistrate and
others (1998) 5 SCC 749, summoning of an accused in a criminal
case is a serious thing; more so to face a trial in criminal case
registered with the direction of the High Court. Since the
appellants themselves have admitted their signatures in the
vakalatnama and the version in the vakalatnama that they have
signed at Madurai on 18.08.2016 is an advertent mistake, in our
view, even if the trial proceeds, there may not be any possibility of

the appellants being convicted for the alleged offences of forgery
and for making forged document.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.855 OF 2019

SASIKALA PUSHPA Vs   STATE OF TAMIL NADU 

R. BANUMATHI, J.
Dated:May 07, 2019

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Whether theft can be committed in respect of information contained in document?

By the order of the Magistrate dated 08.10.2010, cognizance
was taken against respondents No.1 to 16 for commission of
the offences under Sections 380, 411 and 120B IPC. There
are no averments in the complaint nor are there allegations
in the statement of the complainant or the witness P.B.
Dinesh as to when and how the theft was committed and the
order of the Magistrate dated 08.10.2010 taking cognizance
of the criminal case against respondents No.1 to 16 qua
documents No.1 to 54 is liable to be set aside.
 It is held that the “document” as defined in Section 29 IPC is
a “moveable property” within the meaning of Section 22 IPC
which can be the subject matter of theft. The information
contained thereon in the documents would also fall within the
purview of the “corporeal property” and can be the subject
matter of the theft. The findings of the High Court is
modified to that extent.
 In the facts and circumstances of the present case, use of
documents No.1 to 28 and documents No.29 to 54 by the
respondents in judicial proceedings is to substantiate their
case namely, “oppression and mismanagement” of the
administration of appellant-Company and their plea in other
pending proceedings and such use of the documents in the
litigations pending between the parties would not amount to
theft. No “dishonest intention” or “wrongful gain” could be
attributed to the respondents and there is no “wrongful loss”
to the appellant so as to attract the ingredients of Sections
378 and 380 IPC.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 875 OF 2019

BIRLA CORPORATION LIMITED  Vs  ADVENTZ INVESTMENTS AND HOLDINGS  LIMITED

Dated:May 09, 2019.

R. BANUMATHI, J.

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Precaution to be taken by magistrate prior to issuance of search warrant

8. A brief reference to Section 93 (1) would be profitable to

appreciate the contentions:

“Section 93 - When search-warrant may be issued

(1) (a) Where any Court has reason to believe that a

person to whom a summons or order under section 91

or a requisition under sub-section (1) of section 92 has

been, or might be, addressed, will not or would not

produce the document or thing as required by such

summons or requisition, or

(b) where such document or thing is not known to the

Court to be in the possession of any person, or

(c) where the Court considers that the purposes of any

inquiry, trial or other proceeding under this Code will be

served by a general search or inspection, it may issue a

search-warrant; and the person to whom such warrant is

directed, may search or inspect in accordance therewith

and the provisions hereinafter contained.

(2) xxxx xxxx

(3) xxxx xxxx”

9. As is evident from the wording of the section, it arms the

jurisdictional Magistrate with very wide powers. Issuance of a search

warrant is a very drastic step with serious consequences and it cannot

be gainsaid that such drastic powers should not be exercised without

fully appreciating the gravity of the step. It is for that reason, the

words "reason to believe" is incorporated in the said section. This

function being judicial, it necessarily follows that the Magistrate has

to apply his mind judicially.

10. It is evident from the provision that clause (a) of sub-

Section (1) requires, as a condition precedent, to the issue of a search

warrant, that the court must have reason to believe that the person,

against whom the search warrant is issued, is likely not to produce

the document or thing in his possession as required by a summons or

order under Section 91 or a requisition under Section 92(1) of the

Code, served on him, or that he is not likely to produce it, should such

summons or order or requisition be served. No such situation had

arisen in the instant case. It does not appear from the order that the

petitioners were called upon to produce the document and they had

refused. Section 93(1)(b) comprehends a situation where a search

warrant may be issued to procure a document or thing not known to

the court to be in the possession of any person. In other words, a

general search warrant may be issued to procure the document or

thing and it can be recovered from any person who may be ultimately

found in possession of it if it was not known to the court that the

person from whose possession it was found, was in possession of it.

The said provision has no application as it is evident from the

application itself that the document was in the possession of the

relevant office bearer of the Tennis Club. Under clause (c), a search

warrant can be issued where the court considers that the purposes of

any enquiry, trial or other proceeding under this Code will be served

by a general search or inspection. A Magistrate must, under this

provision, apply her mind to the question whether the purposes of any

enquiry, trial or other proceeding under the Code will be served by a

general search, and, unless there are materials before her, connecting

the person against whom the warrant is applied for with the offences

alleged, upon which it can come to an independent decision on the

point, it has no power to issue a search warrant. I have no doubt in my

mind that none of the situations contemplated in clauses (a) to (c) of

Section 93(1) had arisen in the instant case.

11. There is yet another aspect of the matter. When the

law requires the sanction of Magistrate before the issue of a search

warrant, it means that the Magistrate should apply its mind to the

facts. This fact should be discernible from the order passed. It can be

argued that the provision does not contemplate recording of detailed

reasons prior to the issuance of an order in view of the urgency of the

situation. However, in a case of instant nature, wherein allegations

are levelled against the officer bearers of a club for wrongly

inducting a member against the provisions of the bye-laws, the

learned Magistrate ought to have applied her mind and should have

formed an opinion upon the materials placed before her. The

“reasons to believe” which weighed in the mind of the Court to take

such a drastic step should have been reflected in the order.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

 MR. JUSTICE RAJA VIJAYARAGHAVAN V

Crl.MC.No. 8672 of 2018

 K.P VIJAYA MOHAN, Vs  N. JAYA KUMAR,

Dated: 15TH DAY OF MARCH 2019 

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Supreme Court: Procedure to be followed by court for impounding of insufficiently stamped document

 It is clear from the first sub-section extracted above that the court has a power to admit the document in evidence if the party producing the same would pay the stamp duty together with a penalty amounting to ten times the deficiency of the stamp duty. When the court chooses to admit the document on compliance of such condition the court need forward only a copy of the document to the Collector, together with the amount collected from the party for taking adjudicatory steps. But if the party refuses to pay the amount aforesaid the Collector has no other option except to impound the document and forward the same to the Collector. On receipt of the document through either of the said avenues the Collector has to adjudicate on the question of the deficiency of the stamp duty. If the Collector is of the opinion that such instrument is chargeable with duty and is not duly stamped "he shall require the payment of the proper duty or the amount required to make up the same together with a penalty of an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof."

13. In the present case, an argument is raised that the instrument is not actually an agreement of sale as envisaged in the Schedule to the Stamp Act (subject to amendment made by the State of Andhra Pradesh) but it is only a deed of compromise entered into by two disputing persons. We refrain from expressing any opinion on the said plea as it is open to the parties to raise their contentions regarding the nature of the document before the trial court. In the present case the trial court should have asked the appellant, if it finds that the instrument is insufficiently stamped, as to whether he would remit the deficient portion of the stamp duty together with a penalty amounting to ten times the deficiency. If the appellant agrees to remit the said amount the court has to proceed with the trial after admitting the document in evidence. In the meanwhile, the court has to forward a copy of the document to the Collector for the purpose of adjudicating on the question of deficiency of the stamp duty as provided in Section 40(1)(b) of the Act. Only if the appellant is unwilling to remit the amount the court is to forward the original of the document itself to the Collector for the purpose of adjudicating on the question of deficiency of the stamp duty. The penalty of ten times indicated therein is the upper limit and the collector shall take into account all factors concerned in deciding as to what should be the proper amount of penalty to be imposed.

IN THE SUPREME COURT OF INDIA

Appeal (civil) 1800 of 2001

Decided On: 14.03.2001

Chilakuri Gangulappa vs. Revenue Divisional Officer, Madanpalle and Ors.

Hon'ble Judges/Coram:

K.T. Thomas and R.P. Sethi, Advs.

Citation: 2001 (4) SCC 197

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Whether document can be treated as proved if it is produced in consequence of notice to produce document?

Section 163, Evidence Act reads as under : --

"163. When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so."

The ingredients of the provision are :

(i) One party having given the other a notice to produce must call for that document;

(ii) Such document should be produced by such other party;

(iii) the party calling for the document must have inspected it.

When the abovesaid three steps have been followed the party calling for the document would be bound to give it a evidence on the party producing the document insisting on doing so.Section 163 of the Evidence Act has to be read along with Section 164. The two read together project the object underlying. If a party called upon to produce a document in his custody fails to produce the same, he would be debarred from producing that document as evidence unless the other party waives the right accrued to him or the Court still permits the production. On the contrary, if the party in possession of the document yields to the call of his opponent not only by producing the document but also by offering its inspection, the party calling for the document, cannot be permitted to turn around object to the production of that document in evidence. This appears to be a simple rule of fair trial between the two adversaries before a Court and nothing more. Be it noted that the two provisions enact a rule of evidence and not a principle of proof.

Distinction between evidence and proof is well defined and perceptible. It will be useful to read the definition of the term 'evidence' with reference to documents and the definitions of the terms 'proved', 'disproved' and 'not proved' in Section 3 of the Evidence Act.

'Evidence' means and includes

xxx xx

(2) all documents produced for the inspection of the Court;

Such documents are called documentary evidence.

'Proved'

A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

'Disproved'

A fact is said to be disproved when after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

'Not proved'

A fact is said not to be proved when it is neither proved nor disproved.

Section 163 of the Evidence Act read in the light of the definition of the term 'evidence' leads to certain inferences. A party man call for production of a document in the custody of his opponent and may also inspect the same. Till that stage, the document remains a 'document' and does not become an 'evidence'. It is only when a document is produced for inspection of the Court that the 'document' becomes 'evidence'. The party calling for the document may have several weapons in his armoury utilising which it can prevent the other party's document from becoming evidence. All those weapons can be utilised at all times until all the three steps contemplated by Section 163 of the Evidence Act have been put in. A party may call for a document but the opponent may not produce. The opponent having produced the document, the party making the call may still be advised not to inspect. Till this stage the party is not debarred from objecting to other party's documents becoming evidence, if it can. But having inspected the document, the party would be debarred from objecting to the attempt of other party in tendering that document in evidence or in other words from producing that document for the inspection of the Court. However, that does not mean that if the law bars admissibility of a document than merely on account of production and inspection of the document between the parties, it would become admissible. For example, if a document is required by law to be registered to be scribed on stamp paper of a particular denomination, which it is not, a mere product ion for and inspection by adversary of the document would not make it admissible in evidence. Similarly, Section 163 of the Evidence Act does not speak of relevancy of the document. A document may be admissible in evidence and yet be not relevant. Then, a document may be required by law to be proved in a particular mode, such as a will is required to be proved in accordance with Section 68 of the Evidence Act. In a disputed case of will, if the party disputing the will propounded by his opponent, has called for and inspected the will, it would not mean that the opponent would be absolved of his responsibility of proving the will in the manner required by Section 68 of the Evidence Act.

Evidence in relation to law includes all the legal means exclusive of mere argument which tend to prove or disprove any fact the truth of which is submitted to judicial investigation. This term and the word proof are often used as synonyms, but the latter is applied by accurate logicians, rather to the effect of evidence, than to evidence itself (Taylor 11th Ed., p. 1). The definitions of the words 'proved' 'disproved' and 'not proved', embodiment of sound rule of common sense, would be described the degree of certainty to be arrived at before the fact can be said to be proved, disproved and not proved by evidence. In short, proof is the effect of evidence. It is this background which assumes significance as to why the draftsman of the Evidence Act deliberately abstained from using the term 'proof' in any of its variations in the language of Section 163 of the Evidence Act.

A few decided cases may now be noticed.

In Rajagopala Ayyangar v. Ramanuja Ayyangar 72 Ind Cas 459 : (AIR 1923 Mad 607), a Division Bench of Madras High Court observed :

"Section 163 of the Evidence Act does hot render proof of the documents to be exhibited unnecessary or alter the normal incidents of that burden.....it includes nothing relating to the burden of proof or the necessity for the proof prescribed in the other Sections of the Act."

In Ramadhin v. Ram Dayal 57 Ind Cas 973 : (AIR 1919 Oudh 8), it was held :--

"Where documentary evidence is admitted under the special provisions of Section 163 of the Evidence Act, such evidence is merely evidence in the case for what it may be worth, and is not conclusive against the party who has inspected the documents."

IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)

C.R. No. 86 of 1989

Decided On: 26.09.1989

 Phoolchand Garg Vs. Gopaldas Agarwal and Ors.

Hon'ble Judges/Coram:

R.C. Lahoti, J.

Citations: AIR 1990 MP 135

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Whether party can be permitted to file documents which were not filed along with written statement?

Order 8 Rule 1A(3) of the CPC provides that the documents, which have not been produced along with the written statement, cannot be produced to the court later on without the leave of the court. Thus, if a document is to be produced by a defendant, the same is to be produced with the written statement. Subsequent production of document can be done only if the court is satisfied with the grounds explained for non-production of the documents at the time of filing of the written statement.

In the High Court of Patna

(Before Ashwani Kumar Singh, J.)

Dewanti Devi and Others v.  Radheshyam Tiwary 

Civil Miscellaneous Jurisdiction No. 1497 of 2016

Decided on January 4, 2019

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