Whether the court can convict accused based on oral evidence without insisting on documentary evidence though available?

 Basically prosecution case rests upon the documents in the form of registers and journals. First informant has inspected those documents and then only he came to conclusion that Applicant has not accounted money of Rs.28,834/- accepted from the account-holders. Without inspecting registers, he was not in a position to conclude about misappropriation. It is true that as per Section 61 of the Indian Evidence Act contents of the document can be proved either by primary or secondary evidence. In this case, they are not proved in either way. So, I find lacuna in the prosecution evidence i.e. to say even there is an oral evidence in the form of all the witnesses (except P.W.1), however their version could not be substantiated by producing the documentary evidence in the form of register and journals. So, it cannot be said that the offence of criminal breach of trust by the Applicant is proved beyond reasonable doubt. Though the investigating agency have seized some registers, but they were not tendered in evidence and proved. This is serious lacuna in the prosecution evidence. Without proving the documents, no finding of guilt for offence under Section 409 of IPC can be arrived at. So, certainly it has resulted into illegality when both the Courts convicted the Applicant for offence under Section 409 of IPC. Certainly, there is a scope for interference by the Revisional Court. So the conviction needs to be set aside. {Para 28}

Duty of Police & Court

29. It is the part of investigation to seize relevant register and journals. First informant in his FIR has given the duration of registers from 20th August 2006 upto 28th February 2007 whereas the registers seized were written upto 30th August 2004 and upto 15th February 2005). Even if they can be said to be relevant, they were kept in the police station only. Neither APP in-charge nor the trial Court Judge were vigilant in taking appropriate steps/directions. They conducted trial without registers. Trial Court discussed evidence and convicted the applicant by overlooking absence of important piece of evidence. It is strange even the Appellate Court overlooked this fact and confirmed the conviction. This is blatant disregard to the responsibility bestowed on the stakeholders.

 IN THE HIGH COURT OF BOMBAY

Criminal Revision Application (ST) No. 4181 of 2024 and Interim Application (ST) No. 4204 of 2024

Decided On: 19.03.2024

Anand Narayan Sakpal Vs. State of Maharashtra

Hon'ble Judges/Coram:

S.M. Modak, J.

Citation:  MANU/MH/2312/2024.

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Can the plaintiff prove that his construction was before the datum line based on oral evidence without supporting documentary evidence?

 As a legal proposition, Mr. Diwan may be right that if evidence of the witness goes unchallenged the court may accept it. But the question is of existence of structure and ownership, and, as discussed by me, earlier, these two aspects cannot be said to have been proved only on the basis of oral evidence of P.W. 2. The plaintiff has to prove that his structure existed prior to 1964. He has no documents of any nature whatsoever for showing the structure to be in existence prior to 1962 and therefore the trial court rightly refused to believe the evidence of P.W. 2 regarding these two aspects. {Para 20}

26. The sum and substance of this discussion is that the plaintiff has no documentary evidence at all to prove that the structure was in existence since prior to 1977 or was in existence on 1.1.1962. The oral evidence of the plaintiff and his witness Kurmi P.W.2, cannot and does not, lead the court to come to the conclusion that the structure was so in existence since 1962. The so-called cross-examination of Pednekar the witness of the Corporation is not an admission and it does not help the plaintiff in any way much less in proving the case of the plaintiff about the structure in existence since 1962. Scores of other documents filed by the plaintiff are not required to be considered because they are subsequent to 1972. Therefore, conclusion is that the trial court was fully justified in holding the crucial issue against the plaintiff. Its finding about the failure of the plaintiff to prove the existence of the structure prior to 1977 or from 1962 are based on facts, sound reasoning and logic, and are not liable to be interfered with on any counts.

 Then in paragraph 12 the Gauhati High Court held that "The power under Section 337 of the Act cannot be utilised and/or used in respect of a building constructed on the own land of a person after completion of the same and after assessed by the Municipal Authority, and this power should be utilised within a reasonable time, though no time limit has been prescribed in section itself."

31. Though this judgment of the Gauhati High Court is repeatedly and strenuously relied upon by Mr. Diwan in support of his submission, it cannot be of any help to the plaintiff for the simple reason that in the case before the Gauhati High Court the construction was made by the person upon his land. That is the distinguishing factor in that case and in the present case the plaintiff - appellant is not the owner of the land. Land upon which the suit structure is there, does not belong to him. The owner is before the court as defendant No.2, who has proved his ownership over the land and therefore if the structure is erected on somebody else's land then the judgment of Gauhati High Court cannot be made applicable. It would amount to giving protection to a trespasser, to legalise an illegal act and would be detrimental to the interest of the owner.

32. Notice under Section 351 was given to the plaintiff. He gave reply with supporting documents. All those were considered and then the order of demolition is passed. Before the trial court, no issue was framed by the court whether the principles of natural justice were not followed by the Authorities nor any such submission was made.

35. Mr. Diwan also contended that order of demolition is a drastic step and particularly if the structure is in existence since 1972 then ordering demolition in 2000, was not at all proper in the circumstances. According to him some other form of penalty could have been imposed and structure could have been regularised.

36. The factual aspect of this matter is that land upon which the structure stands does not belong to the plaintiff. Even BMC has no authority to regularise the structure on somebody else's property. If the property is of the BMC and there is illegal structure, the BMC may in a given case regularise the structure but where the property does not belong to the BMC and the land is owned by somebody else, then even the BMC can not regularise the structure. No other penalty can compensate the real owner. It is equally true that when the plaintiff came before the court his dominant intention was to prevent demolition of the structure pursuant to 351 notice and BMC was concerned with only one aspect i.e. whether the plaintiff has necessary documents to show that the construction which he was making in 2001 is with the permission and on the basis of a sanction plan. The BMC found that there was no sanction plan and second aspect of the matter was that the plaintiff failed to prove before BMC Authorities that his structure was in existence before the datum line.

37. At this juncture, it is necessary to consider one more aspect. According to the plaintiff the suit structure as it was there on the date of filing of the suit has been in existence since 1972. This contention is also false, and, in any event, it is not supported by the document. He tendered, the agreement between him and the vendor Lallu Bhika. Even the agreement of 1972 with Lallu Bhika mentions the suit property as Zopda i.e. hut only. In the assessment extract, this structure is mentioned as CI shed only and the first date of assessment is shown as 1.4.1979. But whereas the photographs tendered by the BMC after part of the structure was demolished, pending appeal, for road widening clearly shows that all the bricks used are absolutely new. This clearly fortifies the case of the BMC that in 2001 the plaintiff constructed four rooms. Obviously this is done by the plaintiff after demolishing the old hut. New structure of the plaintiff, cannot be called as Zopda or hut as is referred in the document of 1972. It cannot be referred as to C.I. shed as is referred in the assessment bill. It is a new construction for which plaintiff has no approved plans nor he has any permission of the BMC for construction.

38. Counsel for the BMC and defendant No.2 submitted that even if all the documents of the plaintiff are accepted, they do not firstly prove that the structure was in existence prior to datum line, that these documents do not prove that the new structure erected by the plaintiff was with the permission of the BMC or on the basis of any approved plan. My attention was drawn to the order of the Commissioner, which is a detailed order, wherein each document of the plaintiff is considered by the Commissioner. In any case, what ultimately comes before the court is important and therefore when plaintiff has miserably failed to prove his title over the property and failed to prove existence of the structure prior to 1972, has failed to prove that when he re-erected the structure in 2001, it was done by him with the permission of the BMC on the basis of sanction and approved plans, then the trial court was fully justified in dismissing the suit and rejecting the claim and contention of the plaintiff.

39. Mr. Diwan also contended that there was no rationale behind fixing the datum line and no action was taken by the BMC from 1972 to 2001. Limitation, in my opinion, in view of the provisions of the BMC Act does not apply in this case. No doubt demolition is a drastic action, but looking to the tendency of the citizens of making illegal construction in the City of Mumbai, which are hundreds and thousands in numbers, BMC is required to be empowered with such drastic action and whether there is a rationale behind fixing the datum line, the court cannot go into this question, because this is a question of policy.

40. It is to be noted that Mr. Diwan had cited some authorities about the testimony of single witness and use of unregistered document for collateral purpose. There is no dispute about this proposition. But in the facts of the case neither the evidence of the single witness can be taken as a proof of the existence of the structure prior to 1972 even if the evidence of witness had gone unchallenged. I have already discussed and noted that illegality and validity of structure are required to be proved on the basis of documentary evidence otherwise that will create chaotic situation where everybody will examine numerable witnesses for proving these facts. There cannot be any substitute for written permission of the BMC for construction nor there cannot be any substitute for approved plan before construction. Therefore, for all these reasons, there is no merit in this Appeal.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

D.G. DESHPANDE, J.

Namdev Pandurang Panchal Vs. Mumbai Municipal Corpn. Of Gr. Bombay & Anr.

First Appeal No.1241 of 2005

16th September, 2005

Citation: 2005(4) ALL MR 689,2006(1) MHLJ 194

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Whether production of documents can be allowed if no foundation for those documents is laid in plaint?

 Shri Ghosh kept saying that defendants can cross-examine the witness on these documents and no prejudice will be caused to defendants. But the fact is there are no pleadings in the plaint to the effect that these correspondence were sent to Mr. Karyakin and defendant No. 2 has admitted his liability. Only if such averment were there, defendants would have denied in the written statement and an issue would have been framed as to whether plaintiff proves that they sent these emails to defendants and whether defendants by these emails have admitted liability. Therefore, certainly, grave prejudice will be caused to defendants because it could be argued that there is no denial in the plaint. And it is settled law that evidence cannot be led on facts which have not been pleaded in the plaint or in the written statement.

14. Moreover, in the affidavit in support, it says that the documents to be introduced were under the control of Mr. Mohnish Mackdani as he was responsible for the day-to-day operations of plaintiff. However, plaintiff does not explain why only these 22 documents were in the control of Mr. Mohnish Mackdani wherein in Admiralty Suit No. 31 of 2013 about 147 documents and in Admiralty Suit No. 11 of 2013 about 900 pages of documentary evidence were in control of Ashish/Pratap Khialani. The plaintiff has been economical with truth.

15. In the circumstances, even if these 22 documents proposed to be introduced cannot be termed as cooked up documents, still, these documents were very well available with the plaintiff throughout and in view of the contradictions or incongruity as noted above, the notices of motion have to be rejected.

IN THE HIGH COURT OF BOMBAY

Notice Motion No. 2269 of 2015 in Admiralty Suit No. 31 of 2013 and Notice Motion No. 2268 of 2015 in Commercial Suit No. 31 of 2013

Decided On: 31.01.2018

 Rasesh Shipping Services Vs. R.V. Akademik Boris Petrov and Ors.

Hon'ble Judges/Coram:

K.R. Shriram, J.

Citation: AIR 2018 (NOC) 718 Bom

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When documentary evidence shall be preferred over oral evidence?

 Oral evidence can also be
taken into consideration but in the facts of this case, the best evidenceis documentary evidence which has to prevail. In the face of the
documentary evidence evincing the price of the land per sq.yd. the
oral evidence which was based upon ipse dixit and without any sound
basis, could not have been accepted by the Reference Court. Thus, the
grave error which was committed had been rightly set at naught by the
single Bench of the High Court, which determination of compensation
has also not been interfered by a Division Bench.
Reliance has been placed upon State of Gujarat & Ors. v.
Rama Rana & Ors. [1997 (2) SCC 693] with respect to acceptance of
oral evidence in which case there was failure on the part of the
Agricultural Department to produce statistics as to the nature of the
crops and the prices prevailing at that time. In that context, it was
observed that oral evidence cannot be rejected due to such failure and
the court has a duty to subject the oral evidence to great scrutiny and
to evaluate the evidence objectively and dispassionately to reach a
finding on compensation.
Reliance has also been placed on Satyanarayana v. Bhu Arjan
Adhikari & Ors. [2011 (15) SCC 133] in which it has been laid down
that an analysis of the evidence by the Reference Court has to be
satisfactory. Reliance has also been placed on Ramanlal Deochand
Shah v. State of Maharashtra & Anr. [2013 (14) SCC 50] laying down
that it is for the claimant to prove that the amount awarded by the
Collector needs an enhancement and for that purpose, oral and
documentary evidence can be adduced and when there is
non-consideration of material evidence, the case can be remanded to
lead evidence. In this case, there is proper scrutiny and evaluation of
oral and documentary evidence by the High Court. The decision of the
High Court with respect to determination of compensation deserves to

be upheld.

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.1527-1536 OF 2013
Rajasthan Housing Board
... Appellant
- Vs –
New Pink City Nirman Sahkari Samiti Ltd.
& Anr.
... Respondents
WITH
Civil Appeal Nos.1557-1566/2013, 1577-1586/2013, 1597-1606/2013,
Dated;May 1, 2015.
Citation;(2015) 7 SCC601,AIR 2015 SC 2126

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How to ascertain income of person who is doing labour work in absence of documentary evidence?

 The appellant/claimant in his appeal further claimed that he had been earning [pic]10,000/- p.m. by doing vegetable vending work. The High Court however, considered the loss of income at [pic]3500/- p.m. considering that the claimant did not produce any document to establish his loss of income. It is difficult for us to convince ourselves as to how a labour involved in an unorganized sector doing his own business is expected to produce documents to prove his monthly income. In this regard, this Court, in the case of Ramchandrappa v. Manager, Royal Sundaram Alliance Company Limited[2], has held as under:

“13. In the instant case, it is not in dispute that the Appellant was aged about 35 years and was working as a Coolie and was earning [pic]4500/- per month at the time of accident. This claim is reduced by the Tribunal to a sum of [pic]3000/- only on the assumption that wages of the labourer during the relevant period viz. in the year 2004, was [pic]100/- per day. This assumption in our view has no basis. Before the Tribunal, though Insurance Company was served, it did not choose to appear before the Court nor did it repudiated the claim of the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning a sum of [pic]3000/- p.m. Secondly, the Appellant was working as a Coolie and therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant.

14. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. In the present case, Appellant was working as a Coolie and in and around the date of the accident, the wage of the labourer was between [pic]100/- to [pic]150/- per day or [pic]4500/- per month. In our view, the claim was honest and bonafide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the Appellant from [pic]4500/- to [pic]3000/- per month. We, therefore, accept his statement that his monthly earning was [pic]4500/-.”

9. There is no reason, in the instant case for the Tribunal and the High Court to ask for evidence of monthly income of the appellant/claimant. On the other hand, going by the present state of economy and the rising prices in agricultural products, we are inclined to believe that a vegetable vendor is reasonably capable of earning [pic]6,500/- per month.

Supreme Court of India

Syed Sadiq Etc vs Divisional Manager,United India ... on 16 January, 2014

Bench: Sudhansu Jyoti Mukhopadhaya, V. Gopala Gowda

Citation;2015 ALLSCR347

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Whether court can draw adverse inference when Important documentary evidence is withheld?

Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Manichavasaka Pandara(1) Lord Shaw observed as follows:

"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to, the, Courts the best material for its decision.. With regard to (1) 44 I. A. 98, at P. 103.

third parties, this may be right enough-they have no responsibility for the conduct of the suit but with regard to the parties to the suit it is, in their Lordships' opinion an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition."

Supreme Court of India

Gopal, Krishnaji Ketkar vs Mahomed Haji Latif & Ors on 19 April, 1968

Equivalent citations: 1968 AIR 1413, 1968 SCR (3) 862

Bench: Ramaswami, V.

Evidence--Important documentary evidence withheld--Technical
plea of onus of proof cannot prevent adverse inference.

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Whether court can consider documentary evidence at stage of temporary injunction without proof?

The claim of temporary injunction, made by plaintiff needs to be considered by Court in view of the provisions laid down under Order XXXIX, Rules 1 and 2 of Civil Procedure Code. Order XXXIX, Rule 1 of Civil Procedure Code opens with the wording, "Where in a suit, it is proved by affidavit or otherwise, temporary injunction may be granted by the Court." Prima facie case, balance of convenience and irreparable loss are the factors which require to be taken into consideration by the Court while considering the application for temporary injunction. So far material is concerned, the Court can resort to affidavit filed by the party or otherwise. The expression 'otherwise' refers to various other circumstances. In a given case there may be record of rights, various documents of title or transfer of the property or other circumstances. The consideration by the Court to such material at the stage of considering application for temporary injunction is one aspect of the matter and consideration of these circumstances, at the time of trial is different aspect of the matter. At the stage of temporary injunction, Court can refer to documents which are produced on record without formal proof. At that time of the trial Court has to take into consideration the documents which are established in accordance with the provisions of the Indian Evidence Act and proved on formal proof. In other words, formal proof of the documents, which otherwise is necessary at the time of deciding the suit in that strict sense is not necessary while considering the documents concerned at the time of consideration of the prayer for temporary injunction. Public documents can be considered at the time of temporary injunction as well as at the time of disposal of the suit without formal proof and in view of the provisions of the Indian Evidence Act.

Bombay High Court

Shamrao Ganpat Chintamani vs Kakasaheb Laxman Gorde on 19 October, 2007

Equivalent citations: 2008 (2) MhLj 819

 Citation: 2008(2)ALLMR118,

S.B. Deshmukh, J.

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