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Judgment
Rule heard forthwith with consent of counsel for the rival
parties.
By the present petition, the petitioner has impugned the
order dated 03.10.2016 (Annexure P-6) passed by learned Special Judge,
CBI Court, Chandigarh by which the application dated 07.09.2016
(Annexure P-4) filed for leading secondary evidence after the petitioner
examined as many as 34 defence witnesses, was dismissed.
It is not in dispute that the investigation began in the year
1999 and prosecution took number of years for examination of the
witnesses. Therefore, the delay cannot be attributed to the petitioner
alone. The petitioner has also examined large number of defence
witnesses namely 34 witnesses. The case is one of disproportionate
assets.
Learned trial Judge in paras 14 and 19 of his order recorded
the reasons that the petitioner was not entitled to secondary evidence in
the form of photocopies of the ledgers and that the photocopies of the
alleged ledgers are not public documents and they could not be allowed
as secondary evidence.
I have seen the documents which are sought to be filed by
way of secondary evidence from pages 16 to 20. Upon perusal of these
documents, I find that they seem to be the photocopies of the ledger
maintained by the Bank of Rajasthan Limited. It is not necessary that for
the purpose of leading secondary evidence only public documents are
admissible under Section 65 of the Evidence Act. In my opinion, the
prayer for leading secondary evidence of these documents should have
been granted, since there is no point in denying the opportunity to lead
secondary evidence. The mere filing of photocopies of those documents
cannot prejudice any of the parties to the trial. Since by mere filing of
the documents, the same does not become an evidence. The prosecution
is always at liberty to question in the cross-examination and also to show
that the documents are not genuine. Therefore, there is no prejudice to
any of the parties, particularly because the documents looked by me
appears to be photocopies of some ledgers. What is the evidentiary value
of these documents would be decided only after the documents undergo
the test of cross-examination.
At any rate, learned counsel for the petitioner states that he
would not hereafter file any application for any additional evidence and
this would be the last witness to be examined. The statement is accepted.
In view of the statement the apprehension about delay in
trial is taken care of. The counsel for the petitioner also states that only
on one date the witness would be examined. This statement is also
accepted.
In that view of the matter, the petition is allowed. The order
dated 03.10.2016 (Annexure P-6) is set aside. The trial Court is directed
to give one opportunity to the petitioner to lead secondary evidence as
aforesaid. The trial Court shall thereafter proceed further in accordance
with law. The trial Court may issue summons if found expedient on
21.03.2017 to the concerned witness(es) to be named by the petitioner.