920-*Cri-WP-175-2024.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 175 OF 2024 Shri Vyankatesh Developers, Through its Partner, Shri Mohan s/o Vyankatrao Deshmukh, Age: 54 years, Occupation: Business, R/o. Kevalyanagar, Hirapur Road, Chalisgaon, District Jalgaon … PETITIONER (Original Complainant) VERSUS Dr. Gulabsing s/o Devsing Patil Age: 61 years, Occupation: Medical Practitioner/Business, R/o. Baherpura, Near Aathwade Bazar, Pachora, District Jalgaon … RESPONDENT (Accused) .… Mr. N. S. Shah, Advocate for the Petitioner Mr. Niranjan V. Dhake, Advocate h/f Mr. G. V. Wani, Advocate for the Respondent .… CORAM : Y. G. KHOBRAGADE, J. DATE : 31.01.2025 ORDER :- 1. Rule. Rule made returnable forthwith and heard finally with the consent of both the sides. 1 of 7 2025:BHC-AUG:3220 (( 2 )) 920-*Cri-WP-175-2024 2. By the present Petition under Article 226 and 227 of the Constitution of India, the Petitioner takes exception to the order dated 14.07.2022, passed by the learned Judicial Magistrate First Class (Court No.3), Chalisgaon in Summary Criminal Case No.422 of 2016, thereby rejecting the present Petitioner’s prayer for exhibiting the receipt. 3. The Petitioner is the original complainant and the respondent is the original accused in SCC No.422 of 2016 instituted for the offence under Section 138 of the Negotiable Instruments Act. After service of summons, the Respondent / accused duly appeared in the matter. The learned trial Court recorded the plea of the accused. Thereafter, the Petitioner filed Exh.47 evidence affidavit. The Petitioner/complainant also produced documents and led further examination-in-chief. The Petitioner underwent cross examination conducted on behalf of the Respondent/accused. 4. The Petitioner examined PW2 Mr. Sujit Bhimrao Wagh, who filed evidence affidavit Exh.77. The P.W. 2 underwent cross examination conducted on behalf of the Respondent / accused. After the evidence is over, the Petitioner/complainant filed the Pursis and 2 of 7 (( 3 )) 920-*Cri-WP-175-2024 closed his evidence. It is not in dispute that, during the course of evidence, the learned trial Court exhibited documents i.e. cheque Exh.67, bank memo Exh.68, mandatory notice Exh.69, reply to the notice Exh.71. However, the loan receipt (mluokj ikorh) was marked as an article. 5. After the evidence is over, the Petitioner/complainant filed Exh.100 and prayed for exhibiting the loan receipt (mluokj ikorh). On 14.07.2022, the learned Judicial Magistrate First Class, passed the impugned order holding that the Petitioner/ complainant examined CW2 Sujit Bhimrao Wagh at Exh.77 and the receipt dated 05.07.2011 was shown to the said witness. The CW2 Sujit Wagh admitted his handwriting and signature appearing on the receipt dated 15.11.2011, but said receipt was not exhibited, due to an objection raised by the Respondent/accused. According to the Respondent/Accused the loan receipt is not registered under the provisions of Section 17 of the Indian Registration Act. Therefore, the trial Court kept the issue regarding the admissibility of the receipt dated 15.07.2011 open and decided to address it at the time of final arguments. 3 of 7 (( 4 )) 920-*Cri-WP-175-2024 6. Since the Petitioner/complainant felt that, the receipt dated 15.07.2011, marked as an article during the course of trial, therefore, the said document may not be considered by the Court. Therefore, the complainant filed Exh.100 and prayed for exhibition of the said receipt. 7. The learned counsel for the Petitioner placed reliance on the case of Ezumalai Vs. Venkatesa Gounder, 2018 DGLS (Madras) 1050, wherein the Madras High Court in paragraphs 9 and 10, held as under:- “9. Ex.A.1 receipt when carefully seen, the original encroacher one Mr.Kannan has received Rs.2,000/- from the Plaintiff and another one Mr.Kannan for leaving his possessory right to be enjoyed by the Plaintiff and the said Mr.Kannan. The entire reading of the receipt Ex.A.1 clearly indicates that it is only a receipt for giving up his possession in the suit property and executed a receipt for a sum of Rs.2,000/-. It is to be noted that Section 18 of the Indian Registration Act deals with the documents of which registration is optional. Section 18(b) reads as follows: 18(b) instruments acknowledging the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; 10. The above provision makes it clear that any receipt or acknowledgment in respect of payment of consideration 4 of 7 (( 5 )) 920-*Cri-WP-175-2024 relating to creation of declaration or assignment or limitation or extinction of any such right, title or even interest, such instrument, registration is not mandatory only in optional. Ex.A.1 is merely a receipt showing the payment consideration for giving up his right in the property. Therefore, this Court is of the view that the above instrument evidencing the consideration does not require any registration. Since the above document is not created right in presenti. Whereas Ex.A.1 is only a receipt. It is to be noted that the Plaintiff has not claimed his possession only based on the Ex.A.1. Ex.A.1 has been filed to show the circumstance under which he came into the possession of the suit property and thereafter he was enjoying the property continuously. Therefore, the contention of the learned counsel for the Appellant that Ex.A.1 is inadmissible and hit by Section 17(1) of the Indian Registration Act cannot be countenanced. Accordingly the First substantial Question of law is answered against the Appellant.” 8. Per contra, the learned counsel for the Respondent accused submitted that after the evidence is over, the Petitioner/ complainant filed a pursis and closed his evidence. Thereafter, the Petitioner filed an application and prayed for exhibition of the document, which is already marked as Article in his evidence. The provisions of the Code of Criminal Procedure and the Evidence Act does not contemplate for issuance of direction for exhibition of document unless contents of documents are proved. Therefore, prayed for dismissal of the Petition. 5 of 7 (( 6 )) 920-*Cri-WP-175-2024 9. Needless to say that, in case-in-hand, the Petitioner has filed Exh.100, an application seeking exhibition of document i.e. loan receipt (mluokj ikorh) dated 15.07.2011 which is un-registered. Therefore, the learned trial Court marked the said receipt being Article for identification and kept the issue open about admissibility of said receipt. 10. As per the procedure contemplated under Section 59 and 60 of the Evidence Act, the contents of documents required to be proved by oral evidence. The oral evidence must be in direct form. Chapter 4 and 5 of the Evidence Act deals with the primary, secondary and admissibility of evidence. In case-in-hand, the Petitioner/complainant filed his evidence affidavit and also entered into witness box and proved the contents of documents by oral evidence. Therefore, those documents are exhibited, except the loan receipt (mluokj ikorh), which is not registered under the provisions of Section 17 (c) of the Registration Act. 11. It is submitted that, the Petitioner / complainant prayed for direct exhibition of the loan receipt (mluokj ikorh) dated 15.07.2011 without proving it’s contents, signatures of the executant 6 of 7 (( 7 )) 920-*Cri-WP-175-2024 and witnesses, hence, the said receipt marked as Article. There is no provision contemplated under the Code of Criminal Procedure or the Evidence Act to exhibit any document without / in absence of substantial evidence. On 14.07.2022, the learned trial Court passed the impugned order and held that, the alleged loan receipt (mluokj ikorh) required registration and in the absence of registration it is not admissible. Therefore, in my view, the impugned order does not suffer from any irregularities or illegalities. 12. In view of above discussions the Writ Petition is dismissed. Accordingly, Rule discharged. [ Y. G. KHOBRAGADE, J. ] SMS 7 of 7