Bhima Jewellery and Diamonds (P) Ltd v. O. Sandeep Kumar

**CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 24TH DAY OF JUNE 2020 / 3RD ASHADHA, 1942** ## **OP(C).No.2797 OF 2019** **IN OS 159/2013 OF SUB COURT, KANNUR** ## **PETITIONER/PLAINTIFF:** **BHIMA JEWELLERY AND DIAMONDS (P) LTD 28/809 A, ABHIMAN , TP KUMARAN ROAD, CHEVAYOOR, KOZHIKODE, REPRESENTED BY ITS DIRECTOR GIRIRAJAN BALACHANDRA KIRAN, S/O BHEEMA BHATTER GIRIRAJAN, AGED 48 YEARS, RESIDING AT ABHIMAN, CHEVAYOOR, KOZHIKODE.** **BY ADVS. SRI.ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH) SRI.PRAJIT RATNAKARAN SRI.E.MOHAMMED SHAFI** ## **RESPONDENT/DEFENDANT:** **O.SANDEEP KUMAR AGED 28 YEARS S/O SATHYAN, RESIDING AT VASANTHAM, P.O KIZHUNNA , THOTTADA, KANNUR- 670 007** **R1 BY ADV. SRI.P.K.RAVISANKAR** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No.2797 OF 2019** **2** - **CR-** ## **J U D G M E N T** The law permits to either side in every trial - civil or criminal - opportunity to contradict a witness during cross examination and this has its hypostasis on Section 145 of the Indian Evidence Act. 2. Though the word is not so used, in usual paralance this is achieved by “confronting” a witness with a document or other relevant material while being subjected to cross examination. 3. This is what the petitioner herein - the plaintiff in O.S.No.159/2013 on the files of the Sub Court, Kannur - attempted by confronting the defendant, while he was deposing as a witness for his defence, with a new document; but which met with express disapproval from the Court, thus refusing to allow him to do so for the reason that the said document had not been produced on record earlier. 4. The petitioner assails the approach of the Trial Court as being contrary to law and unlawful; thus praying that the said Court be directed to “allow the petitioner to confront the **OP(C).No.2797 OF 2019** **3** document sought to be produced during cross examination of the respondent and permit the petitioner's counsel to ask questions based on the documents so produced” (sic) 5. As is perspicuous from the afore factual narration, the relevant aspects for evaluation by this Court is whether the Trial Court could have refused to allow the counsel for the petitioner to contradict the witness for the defendant with new documents never before produced before it; and whether the said documents ought to have been marked in evidence. 6. I have heard Sri.Mohammed Shafi, learned counsel appearing for the petitioner and Sri.P.K.Ravisankar, learned counsel appearing for the respondent. 7. The primary contention of Sri.Mohammed Shafi, which is also available from paragraph 2 of this original petition, is that the petitioner/plaintiff was legally competent to confront the witness for the defendant with documents in his possession, but never formally produced; asserting that, by doing so, the witness would have been compelled to speak the truth, on account of the surprise element regarding its contents. The averments in paragraph 2 of this original petition, therefore, **OP(C).No.2797 OF 2019** **4** certainly require to be read, for which purpose, I extract it below: “2. After settling the issue, the Court commenced evidence on 27.8.2019. The plaintiff's evidences were already over and the defendant's evidence was started on 16.10.2019. The defendant submitted proof affidavit and was ordered to be cross examined by deputing advocate commissioner. The cross examination was started on 16.10.2019 itself and continued the next day on 17.10.2019. In the process of cross examining defendant as DW1, the petitioner's counsel tried to ask certain pertinent questions with reference to a document in a bid elicit certain material aspects touching the contentious issues as well as to prove the veracity and integrity of the witness by showing the said document to witness that was not produced earlier along with the plaint or by separate IA for receiving additional documents. The attempt was to bring in evidence with reference to a document not produced before the court but falling under the scope and ambit of order 13 Rule 3 CPC.” 8. Sri.Mohammed Shafi, then proceeded to argue that Order XIII Rule 3 of the CPC, permits confrontation of a witness with a document not produced in Court, as per the mandate of Rule 1 of the said Order, at the time of cross examination of a witness and that the Trial Court has egregiously erred in not permitting his client to do so. Explaining the facts involved, he submitted that initially, the Court had deputed an Advocate Commissioner to examine the witness and that when one **OP(C).No.2797 OF 2019** **5** document, which had not been earlier produced in Court, was attempted to be marked by the petitioner/plaintiff by confronting him, it was objected to by the learned counsel appearing for the defendant and therefore, that the Commissioner stopped the cross examination and placed the matter before the Trial Court for appropriate orders. He says that this is evident from pages 11 and 12 of the deposition, a copy of which has been appended to this Original Petition as Ext.B3; and that, thereafter, the witness was again sworn by the Court for further cross examination, during which also such an endevour was made, but stopped by it, recording that “since the document is not produced before the Court answer is not recorded”.(sic) 9. Sri.Mohammed Shafi asserts that this stand of the Trial Court is contrary to Order XIII Rule 3 of the CPC and therefore, that the said Court must be directed to permit the petitioner to confront the witness again with the documents; and he cited the judgment of the Hon'ble High Court of Allahabad in **Smt.Manorama Srivastava and another V. Smt. Saroj Srivastava [AIR 1989 Allahabad 17]** in substantiation of this **OP(C).No.2797 OF 2019** **6** plea. 10. Sri.P.K.Ravisankar, learned counsel appearing for the respondent, in response, vehemently contested the submissions of Sri.Mohammed Shafi, both on facts and law, asserting that what has been attempted to be done by the petitioner before the Trial Court is a clear mischief, which is contrary to the prescriptions of Order XIII of the CPC. Sri.Ravisankar submitted that even a plain reading of the provisions of the said Order would make it indubitable that any document which is sought to be marked through a witness in cross examination must be produced in Court in the manner as is legally permitted and that the only difference between the manner of production of a document as per in Rules 1 and 3 of Order XIII of the CPC is that in the former case, the originals of the documents, sought to be marked, ought to be produced before the issues are settled under Order XIV Rule 1 of the CPC; while under the latter Rule, a document can be produced later, even at the time of the cross examination of a witness, provided leave is granted by the Court. 11. Sri. P.K. Ravisankar, further says that, in the case at **OP(C).No.2797 OF 2019** **7** hand, what was attempted by the learned counsel for the defendant, both before the learned Commissioner and the Trial Court, was to whip out a document from his possession and to confront the witness and thus seek it to be admitted and marked in evidence. He says that this attempt was clearly illegal, unlawful and therefore, that the Trial Court was without error in having rejected it. He thus prays that this original petition be dismissed. 12. Before I answer the legal aspects raised by the learned counsel for the petitioner, I must certainly notice that, through this original petition, the petitioner does not choose to challenge any order of the Trial Court but only prays that the cross examination of DW1 be ordered to be reopened, so as to have certain documents marked through him by confrontation. I am not sure whether he would obtain any benefit, as he expects, at this time even if this request is acceded to, since the witness is now aware of the document; but the legal question, whether the petitioner is entitled to do what he tried before the Trial Court, survives for this Court's evaluation. 13. To answer this, one will certainly need a glance **OP(C).No.2797 OF 2019** **8** ## through Order XIII Rules 1 of the CPC, to enable which, they are ## reproduced below: “1.Original documents to be produced at or before the settlement of issues.- (1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with plaint or written statement. (2) The Court shall receive the documents so produced; Provided that they are accompanied by an accurate list thereof prepared in such from as the High Court directs. (3) Nothing in sub-rule (1) shall apply to documents- (a) produced for the cross-examination of the witnesses of the other party; or (b) handed over to a witness merely to refresh his memory. _”_ 14. The afore are not the only provisions in the CPC in this regard because Order VII Rule 14, as also order VIII Rule 1A also contain additional but similar prescription from the angle of the plaintiff and the defendant respectively. These provision therefore, will have to read along with Order XIII and are consequently extracted and shown below: **OP(C).No.2797 OF 2019** **9** ## Order VII Rule 14 “14. **Production of document on which plaintiff sues or relies** - (1) where a plaintiff sues upon a document or relies upon document int his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. (2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it its. (3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. (4) Nothing in this rule shall apply to documents produced for the cross examination of the plaintiff''s witnesses, or, handed over to a witness merely to refresh his memory. ## Order VIII Rule 1A “1A. **Duty of defendant to produce documents upon which relief is claimed or relied upon by him -** (1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a **OP(C).No.2797 OF 2019** **10** copy thereof, to be filed with the written statement. (2) Where any such document is not in the possession or power of the defendant he shall, wherever possible, state in whose possession or power it is. (3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. (4) Nothing in this rule shall apply to documents (a) produced for the cross-examination of the plaintiff's witnesses, or (b) handed over to a witness merely to refresh his memory.” 15. As is perspicuous from the afore stipulations, Order VII Rule 14(1) and Order VIII Rule 1A (1) mandates that the plaintiff and defendant must produce the documents they intend to rely on by entering them in a list and delivering them, along with a copy, when the plaint and written statement respectively are filed in Court. 16. Going forward, Order VII Rule 14(3) and Order VIII Rule 1A (3) requires that a document not produced as above, be not received in evidence on the side of the party producing it, at the hearing of the suit, without the leave of the Court. **OP(C).No.2797 OF 2019** **11** 17. After the afore stipulations are so placed, Order XIII Rule 1(1) contains the common mandate applicable to either side and requires that the parties or their pleaders all documentary evidence in the original before settlement of the issues, in the suit, provided copies of such had been filed along with the plaint and the written statement. After postulating so, an exception to the above is carved out through Order VII Rule 14(4) Order VIII Rule 1A (4), and Order XIII Rule 1(3), whereby, in two circumstances alone documents are allowed to be used during trial, even though not produced earlier. These three provisions, which are identical in their tenor and phraseology employed, state that nothing in the main Rule shall apply to documents: a) Provided for the cross examination of the witness of the other party b) Handed over to a witness merely to refresh his memory. (to speak aside, there is a mistake in Order VII Rule 14(3) because instead of the “defendant's” witness it is incorrectly stated the “plaintiff's” witness therein. This was noticed by the Hon'ble Supreme Court in **Salem Advocate Bar Association,** **OP(C).No.2797 OF 2019** **12** **T.N. v. Union of India [2005 (6) SCC 344]** and it is ordered therein that until necessary and suitable amendment is brought in by the legislature, the word 'plaintiff's' in this Sub Rule will be read as 'defendant's”), 18. The law thus indubitably entitles a party to contradict a witness for the opposite side with a document not produced earlier or included in the list filed along with the plaint or the written statement respectively. This is rendered irrefragable since Order VII Rule 14(4), Order VIII Rule 1A (4) and Order XIII Rule 1(3)(a) carves an express exception to documents produced to cross examine the witness on the rival side. 19. The afore liberty is apodictically edificed on Section 145 of the Indian Evidence Act which reads as under: **“145. Cross-examination as to previous statements in writing -** A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.” 20. This Section permits the contradiction of a witness by **OP(C).No.2797 OF 2019** **13** confronting him with a previous statement made by him or reduced into writing, by calling his attention to it or its parts intended to be used for such purpose. 21. When the whole purpose is to contradict a witness, it becomes unnecessary to expatiate that the element of surprise is crucial. Axiomatically, it will be incongruous to even suggest that a document or statement used for such must be produced earlier, since the witness certainly will then modulate his response to it by pre-preparation. The very object of Section 145 of the Indian Evidence Act would be lost by it. 22. In derivation thus, the contention of the respondent/defendant, that only a document which is earlier produced in Court by a party can be used by him to contract witness for the opposite side, can evidently find no jural support. 23. This being said, I am fully cognizant that Sri.P.K.Ravisankar, learned counsel for the respondent is relying on the word “produced” appearing in Order VII Rule 14(4), Order VIII Rule 1A (4) and Order XIII Rule 1(3)(a) to predicate that this means that the document used for cross examining the witness must also be filed in Court as per the usual procedure. **OP(C).No.2797 OF 2019** **14** He attempted to draw a distinction between the two exception clauses in these Orders, one which allows handing over a document to a witness to refresh his memory and the production of one to confront him during cross examination. Based on this distinction in the words used in these orders, he argued that only a document used to refresh the memory of a witness can be shown to him, while to contact him in cross examination, the same will have to be first produced in Court, albeit, even at the time of trial. 24. There can be no argument that the words “handing order” and “production” are used in the exception clauses in the afore Orders of the CPC. The reason for this, in my definite view, is not as contended by Sri.Ravisankar but because contradiction of a witness during cross examination and refreshing of his memory remain on totally different footing. In the former, the document is marked and entered in evidence, subject to its relevance and admissibility; while in the latter it is not. 25. When I say as afore, this Court becomes enjoined to declare what is meant by “production” used in the afore Rules, because Courts sometimes, like in this case, appear to think this **OP(C).No.2797 OF 2019** **15** means that the document will have to be produced in the manner as provided in Rule 28 of the Civil Rules of Practice, before it can be put to the witness. 26. As noticed in the main provisions of Order VII Rule 14, Order VIII Rule 1A and Order XIII Rule 1 of the CPC, the parties are to produce the documents they rely on, entering them in a list, along with the plaint or written statement and, in any event, before the settlement of issues for trial. However, the Sub Rules carving the exception to this make it limpid that nothing contained in main Rule will apply to a document produced for cross examination of the witness for the other side. Therefore, even though the word “produced” is used commonly in both the main Rules and the Sub Rules carving the exception, its tenor will have to be differently interpreted. 27. This is undoubtedly so since the main Rules speaks of production of documents by parties on which they intend to rely, which normally, would be to mean those which are sought to be led into evidence through their own witness. In contradistinction, a document used to cross examine or contradict a witness for the other side can be put to such witness only based **OP(C).No.2797 OF 2019** **16** on his/her testimony. Logically, therefore, such a document cannot be produced earlier, but will have to be put to the witness during cross examination to obtain a contradiction of his earlier statement. This is why the element of surprise is vital. 28. In such confines, the production of a document under Order VII Rule 14(4), Order VIII Rule 1A (4) and Order XIII Rule 1(3)(a) of the CPC, axiomatically, will have to be construed to happen when it is physically put to the witness during cross examination and when the Court then receives it on record. Hence no Court can refuse a document being put to a witness during cross examination merely for the reason that it had not been produced earlier or not produced as per the manner in which it ought to have been normally produced. 29. The afore so concluded, an adjunct question arises as to how the Trial Court should deal with a document produced at the cross examination of a witness. The answer to this is fairly easy when the witness admits the document - the Court then will mark it and admit it in evidence, subject to its relevance and probative value. 30. But, if the witness denies the document, then what **OP(C).No.2797 OF 2019** **17** happens? Should the document be returned to the party which produced it or should the Court retain it?. This, again, is not to difficult to answer because the document certainly will have to be marked, though not admitted to evidence, and retained on file so as to enable the Court to subsequently, identify it, with reference to the question put to the witness when it was produced, while assessing the evidence and finally deciding the suit. This is more because, it is now too well settled for restatement that the mere marking of a document as an exhibit, be that by use of alphabets or numbers, is only for the purpose of its identification and has no relation with its proof. 31. My views as above are in conformity with the holdings of the Hon'ble Alahabad High Court in **Manorama Srivastava** (supra) cited by Sri.Mohammed Shafi, learned counsel for the petitioner and am aware that the Delhi High Court has also spoken on the same lines in **Subhash Chander v. Shri Bhagwan Yadav** (CM(M) No.171/2009) 32. The forensic opinion of this Court being declared as afore, which is in favour of the contentions of the petitioner, I will now see whether the petitioner would, even then, obtain any **OP(C).No.2797 OF 2019** **18** benefit, as has been prayed for by him in this original petition. 33. As indited above, the petitioner prays that this Court call for the records from the Sub Court, Kannur, and allow him to confront the documents sought to be produced, during cross examination of the witness for the defendant; as also to allow his counsel to ask questions based on the same. 34. The afore prayer in the original petition, apart from being very amorphous, also presents a real problem for the petitioner. This is because, even though this Court has found that in normal circumstances, a party will be entitled to whip out a document from his possession and confront the witness during cross examination, this can be allowed only if the rigour of Section 145 of the Indian Evidence Act is satisfied. 35. Going by the facts in this case, the petitioner alleges that the learned Advocate Commissioner, earlier appointed by the Trial Court to record evidence, as also the said Court subsequently, did not permit certain documents to be marked when they were sought to be put to the defendant's witness, for the reason that they had not been produced earlier. **OP(C).No.2797 OF 2019** **19** 36. However, going by the testimony of the witness appended to this original petition as Ext.P3, the question put to him in the presence of the Advocate Commissioner was: “There was no instance of false account prepared in Bhima Jewellery as you say. Are you not lying because Bhima Jewellery has filed another case against you in the Magistrate Court apart from the present suit?”. This question was answered by the witness, saying “No” and immediately thereafter, a document was shown to him. Clearly, the imperative ingredients of Section 145 of the Indian Evidence Act were not attracted at this time and consequently, it is without doubt that the witness could not have been so confronted, though the reason recorded by the learned Advocate Commissioner was in error. 37. Similarly, before the Trial Court, a question was put to the witness to the effect: “Did you not give evidence (before the Criminal Court) that you have purchased gold ornaments worth Rs.5 lakh in connection with your sister's marriage?”. The answer of the witness to this was “yes”. Even though the witness answered so, a document was shown to him, **OP(C).No.2797 OF 2019** **20** apparently purported to be his testimony in the criminal court, which the Court did not agree to be marked, of course, for the reason that it had not been produced earlier. 38. When the Court refused the petitioner such opportunity, a subsequent question was put to the witness as: “what is the value of the gold ornaments purchased for your sister in connection with her marriage?”. The answer of the witness was “I don't remember.” Interestingly, at this stage, the learned counsel for the petitioner showed another document to the witness with a question “Is what is shown to you, the counterfoil of the payslip, as per which, you paid money into the account of Bhima Jewellery”. Even before the witness could answer, the Court refused to mark the document, again stating that it had not been produced earlier. 39. As I have said about the learned Commissioner, it is without doubt, going by the opinion of this Court as afore recorded, that the reason recorded by the Trial Court in disallowing the petitioner from putting the documents to the witness cannot obtain my imprimatur. However, it is also irrefutable that the afore questions of the petitioner to the **OP(C).No.2797 OF 2019** **21** witness for the defendant were clearly not ones from which an opportunity of confronting him with new documents could have arisen as per Section 145 of the Indian Evidence Act, since they had no connection with any previous statement of his. Therefore, even though the reasons recorded are not incorrect, the Trial Court could not have permitted these documents to be put to the witness in this particular case, since by doing so, it would have caused violence to Section 145 of the Indian Evidence Act. For the above reasons, this original petition is dismissed; however, without making any order as to costs. **SD/-** ## **DEVAN RAMACHANDRAN** rp **JUDGE** **OP(C).No.2797 OF 2019** **22** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PLAINT S OS NO. 159/2013 FILED BEFORE THE SUB COURT, KANNUR. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S NO. 159/2013 EXHIBIT P3 TRUE COPY OF THE DEPOSITION OF DWI. EXHIBIT P4 TRUE COPY OF THE CASE STATUS TAKEN FROM THE E- COURT SERVICES.**