High Court of KeralaSingle Judge2019-08-22Partially Allowed

M/S Nibon Adhesive Private Ltd. v. M/S Mylaady Ware Housing (P) Ltd & Others

Case / Petition Number:Crl.MC.No.2599 OF 2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Mary Joseph
Judgment Date: 2019-08-22
Court Decision / Holding: Crl.M.C stands allowed in part. The evidence of the complainant, already closed, is permitted to be re-opened solely for the purpose of marking the photocopy of the agreement dated 26-06-2012 terminating the lease arrangement, which was produced along with the complaint.
Final Disposition: Partially Allowed

Parties to the Case

Appellants / Petitioners

M/S NIBON ADHESIVE PRIVATE LTD.

Respondents

M/S MYLAADY WARE HOUSING (P) LIMITED
MRS. MARYKUTTY BABY
BENJITH BABY
STATE OF KERALA represented by Public Prosecutor

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri Biju Abraham

Counsels for Respondents

• Adv. Sri Dinesh R. Shenoy (for R1-3)
• Public Prosecutor C.K. Prasad (for R4)

Case Synopsis & Summary

The Kerala High Court hears a Criminal Miscellaneous Case (Crl.MC 2599/2018) challenging a trial court order that dismissed C.M.P 271/2018 in C.C 888/2016 at Aluva. The complainant, M/S Nibon Adhesive Private Ltd., had sought recall of PW1 and marking of five documents that were not marked during trial, arguing their belated production was due to the court’s parallel proceedings (M.C 64/2017) which kept certain documents in safe custody. The trial court had refused, noting the documents were produced belatedly and that Annexure A3 to recall PW1 was filed after the proceedings neared completion. The respondents counter that M.C 64/2017 was disposed of, the disputed documents were already in the complainant’s custody and could have been produced earlier, and that the five documents were marked only with delayed justification and after the examination of the accused under 313(1)(b) Cr.P.C. The High Court, while acknowledging the belated production, allows the petition in part: it permits reopening the evidence solely to mark the photocopy of the lease-termination agreement dated 26-06-2012 produced with the complaint, and declines permission to mark the remaining four documents listed in Annexure 3 due to belated production and lack of reasonable explanation. The court relies on Navas v. Abdul Lathief to explain the original copy/primary evidence concept in this context.

Provisions of Law Cited

Cr.P.C. 313(1)(b)

Legal Doctrines & Maxims

Primary evidence rule; Duplicate/triplicate original copies as original documents (Navas v. Abdul Lathief)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the trial court was unjustified in declining the prayer to recall PW1 and mark documents. Annexure A3 to recall PW1 was belatedly filed, and the five documents listed in Annexure 3 were produced only late in the proceedings; one document, a rent deed, had been kept in safe custody during parallel proceedings (M.C.64/2017). The complainant argues these documents are relevant to a just decision and that the trial court erred in its observations that marking was unavailable merely due to belated production. The petitioner relies on Navas v. Abdul Lathief (2018(1) KLT 661) to assert that original copies or photocopies retained in custody may be admissible, and to support allowing marking of the rent-deed photocopy. The counsel eventually concedes that Annexure 3 marking was filed belatedly.

Contentions of Respondents

The respondents maintain that M.C 64/2017 was disposed of and that the disputed documents were in the complainant’s custody, only produced belatedly after trial began; five documents sought to be marked were produced after the trial had progressed and after closure of the examination under 313(1)(b) Cr.P.C. There was no reasonable justification for the delayed production, and the trial court was justified in denying marking of those documents. They emphasize that Annexure A3 was filed late and that none of the documents were referenced in the complaint, making marking improper. They also point out that the evidence could be re-examined only to the extent necessary to mark the specific document (the lease termination photocopy).

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Navas v. Abdul Lathief	(2018(1) KLT 661)	Positive	Cited to justify marking of a document kept in custody and to apply the principle that original copies constitute primary evidence when appropriate; the court uses the duplicate/triplicate original copies concept to evaluate admissibility.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY, THE 22ND DAY OF AUGUST 2019 / 31ST SRAVANA, 1941** ## **Crl.MC.No.2599 OF 2018** **AGAINST THE ORDER IN C.M.P.NO.271/2018 IN CC 888/2016** **DATED 21-03-2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, ALUVA** ## **PETITIONER/PETITIONER/COMPLAINANT:** **M/S. NIBON ADHESIVE PRIVATE LTD. XI/24 A, PURANCHAL ROAD, P.R.R.NAGAR, MANJUMMEL PO, NEAR MUTTAR BRIDGE, ERNAKULAM-683501, REP. BY ITS DIRECTOR MR.LARGUS K.I, S/O K.J IYPE, AGED 59 YEARS.** ## **BY ADV. SRI.BIJU ABRAHAM** ## **RESPONDENTS/RESPONDENTS/ACCUSED:** **1 M/S. MYLAADY WARE HOUSING (P) LIMITED POTTAKUZHY CROSS ROAD, KALOOR P.O, COCHIN-17,REPRESENTED BY ITS MANAGING DIRECTOR, MARYKUTTY BABY.** - **2 MRS. MARYKUTTY BABY MANAGING DIRECTOR, M/S MYLAADY WARE HOUSING (P) LTD, W/O LATE. BABY THOMAS, RESIDING AT MYLADDY HOUSE, 4A-SKYLINE PRIME ROSE, LFC CROSS ROAD, KALOOR, COCHIN-17.** - **3 BENJITH BABY, DIRECTOR, M/S MYLAADY WARE HOUSING (P) LIMITED, S/O BABY THOMAS, RESIDING AT MYLADDY HOUSE, 4 A-SKYLINE PRIME ROSE, LFC CROSS ROAD, KALOOR, COCHIN-17.** - **4 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA-31.** **R1-3 BY ADV. SRI.DINESH R.SHENOY** ## **PP C.K.PRASAD FOR R4** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.2599 OF 2018** 2 ## **O R D E R** ## **Dated this the 22nd day of August 2019** The complainant in a prosecution initiated by him as C.C. No.888/2016 before the Judicial First Class Magistrate Court, Aluva (for short 'the trial court') is now before this Court in the Crl.M.C on hand seeking to set aside the order passed by the trial court on 21.3.2018 dismissing C.M.P.No.271/2018. By the above order, the prayer of the petitioner to re-call and re-examine him was dismissed by the trial court for the reason that the documents sought to be marked are produced before the court belatedly. Aggrieved by the said order the petitioner has approached this Court. The copies of the order and C.M.P No.271/2018 are produced alongwith the petition on hand as Annexures A8 and A3 respectively. 2. It is contended by Sri.Biju Abraham, the learned counsel for the petitioner that the trial court is highly unjustified in declining the prayer of the petitioner. According to him, in Annexure A8 the trial court is erred in observing that the marking of the documents sought was already rejected. According to him the document is produced for the first time before the trial court **Crl.MC.No.2599 OF 2018** 3 alongwith C.M.P.No.271/2018 and therefore, there is no basis for observing so. It is contended that the first document sought to be marked was kept in safe custody of the court in view of M.C.No.64/2017 initiated by the trial court suo motu and therefore its marking was not facilitated during trial. It is also contended by the learned counsel that five documents proposed to be marked, alongwith Annexure 3, though produced were misplaced and traced out only at the relevant time when they were sought to be marked. According to him, the documents sought be marked are relevant for the purpose of arriving at a just decision in the prosecution on hand and therefore the trial court ought to have allowed the application and permitted marking of those. The learned counsel has conceded the factum that Annexure 3 application to re-call PW1 and mark documents was filed belatedly. 3. Sri.Dinesh Shenoy, the learned counsel on behalf of the respondents have contended that M.C.No.64/2017 was initiated by the trial court in the prosecution not for the purpose as stated by the petitioner but pursuant to Crl.M.P.No.190/2017 moved by the petitioner before that court alleging some mal practice on the part of the staff of the court in re-placing the original documents produced by her with a photocopy of the document. M.C. **Crl.MC.No.2599 OF 2018** 4 No.64/2017 was disposed of on 13.3.2017 accepting the apology paid by the complainant/petitioner therein and upon a warning not to file affidavit of the nature in future. According to the learned counsel it is true that the disputed document, which necessitated the filing of Annexure A3 was in the safe custody of the court. But, M.C was disposed of as early as on 13.3.2017. It is also pointed out by the learned counsel on the basis of the oral evidence tendered by PW1 that when the witness was confronted with his authority to file the prosecution and represent the complainant company, the answer given was in the negative. According to the learned counsel one among the five documents sought to be marked is the alleged authorisation of PW1 to represent the complainant company. It is contended by the counsel that when PW1's specific case during cross examination was that no such authority was for him to represent the company, the document later produced to establish authorisation is irrelevant. It is also contended by the learned counsel that the other four documents sought to be marked were in the custody of complainant and those could be produced on 21.1.2017, when the trial was commenced. The learned counsel has pointed out that Annexure A3 was filed alongwith a list incorporating the documents sought to be marked, only on 19.1.2018 ie. after an **Crl.MC.No.2599 OF 2018** 5 year from the commencement of the trial and for belated production of the documents without any reason, the impugned order is liable to be set aside. It is also contended by the learned counsel that nowhere in the complaint lodged to prosecute the accused, a reference is made about any of these documents. Annexure A3 to recall PW1 and mark the documents was filed after closure of the examination of the accused under Section 313(1)(b) Cr.P.C and after availing several opportunities to adduce evidence and therefore, the trial court is justified in passing the impugned order and interference is totally uncalled for. 4. The prayer of the petitioner is to mark a document, which has been produced alongwith the complaint and was kept in safe custody by the court during proceedings initiated as M.C.No.64/2017. The document was omitted to be marked by the complainant as it was in the custody of the court following the proceedings initiated as M.C.No.64/2017. It is true that the said document is a certified copy of photocopy of a document produced before some other court during some proceedings. According to the learned counsel for the petitioner, it was the photocopy of the agreement executed among the complainant and the accused at the time of vacating the premises taken on rent. **Crl.MC.No.2599 OF 2018** 6 The document being a rent deed, it is unlikely for its copy to be signed by both parties to the agreement. As rightly observed by this Court in **Navas v. Abdul Lathief (2018(1) KLT 661)** only when an instrument is executed in duplicate or triplicate and each party keeps one, each instrument is treated as original and hence each of them is primary evidence. In the case on hand the complainant has no case that the agreement sought to be marked has been executed more than once by the parties. Therefore, it is unlikely for the parties to affix their signature in each of the documents. Whatever be the case, since it was a document originally produced alongwith the private complaint filed to launch the prosecution and omitted to be marked in view of it being kept in safe custody in a parallel proceedings initiated by the trial court, this Court is inclined to allow the marking of that document subject to its relevancy being looked into at the time of hearing by the trial court. The five documents sought to be marked by a list of documents produced alongwith Annexure 3 application, having been produced at a later point of time, after closure of the examination of the accused under Section 313(1)(b) Cr.P.C, and reference not being made about those and also for want of any reasonable reasons to explain the delayed production of those, permission is declined for marking. **Crl.MC.No.2599 OF 2018** 7 In the aforesaid circumstances, the Crl.M.C stands allowed in part. The evidence of the complainant already closed is permitted to be re-opened solely for the purpose of marking the photocopy of the agreement dated 26.6.2012 terminating the lease arrangement, which was produced alongwith the complaint. **Sd/-** **MARY JOSEPH** **JUDGE** ab **Crl.MC.No.2599 OF 2018** 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1 A TRUE COPY OF THE COMPLAINT IN C.C NO.888/2016 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ALUVA.** - **ANNEXURE 2 THE ORDER DATED 13.03.2017 IN CRL.MC 64/2017 IN C.C NO.88/2016 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ALUVA.** - **ANNEXURE 3 A TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER AS C.M.P NO.271/2018 IN C.C NO.88/2016 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ALUVA.** - **ANNEXURE 4 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN C.M.P NO.271/2018 IN C.C NO.88/2016 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ALUVA.** - **ANNEXURE A5 A TRUE COPY OF THE LIST OF DOCUMENT DATED 19-01-2018 IN C.C NO.88/2016.** - **ANNEXURE 6 A TRUE COPY OF THE AGREEMENT BETWEEN THE COMPLAINANT AND ACCUSED 26-06-2012 PRODUCED ALONG WITH THE COMPLAINT AS DOCUMENT NO.3.** - **ANNEXURE 7 A TRUE COPY OF THE MEMORANDUM OF UNDERSTANDING DATED 21-10.2010 EXECUTED BETWEEN COMPLAINANT AND ACCUSED.** - **ANNEXURE 8 THE CERTIFIED COPY OF THE ORDER DATED 21-03-2018 IN C.M.P 271/2018 IN C.C NO.88/2016 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ALUVA.**