IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)

Transcription

1 IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh) CRIMINAL REVISION PETITION NO. 552/2012 Guwhati Sub-Divisional Market Committee, Uparhali, Kamrup, at Guwahati , Assam, represented by its Secretary-in- Charge Sri Muzamul Haque..APPELLANT -Versus- Sri Suresh Sikaria, Director of NU Foods, Guwahati-6. RESPONDENT/OPPOSITE PARTY BEFORE THE HON BLE MR. JUSTICE A. C. UPADHYAY For the Appellant :: Mr. P. Kataki Mr. D. K. Bagchi Mr. D. Chakraborty For the Respondent :: Mr. K R Surana Mr. N. Sarma Mr. A. Choudhury Date of hearing :: Date of Judgment ::

2 2 JUDGMENT AND ORDER (CAV) By filing this revision application, the petitioner has challenged the order dated passed by the learned Chief Judicial Magistrate, Kamrup at Guwahati in C.R. Case No. 5535C/2008 by which the petition filed by the complainant opposite party under Section 294 Cr.P.C was allowed. 2. I have heard Mr. P. Kataki, learned Counsel appearing for the petitioner and Mr. K R Surana, learned counsel representing the respondent. 3. The facts leading to filing of this revision application, may be stated as follows: The complainant-petitioner is a duly constituted Market Committee established by the Government of Assam, in exercise of power conferred under Section 7 of the Assam Agricultural Produce Market Act, Complaint case bearing C.R. Case No. 5535C/2008 was filed by the petitioner Committee, in the Court of the learned Chief Judicial Magistrate, Kamrup at Guwahati, against the opposite party alleging inter-alia that the opposite party firm is dealing with specified Agricultural Produces, namely, wheat products without making payment of any cess, as required under Section 21 of the said Assam Agricultural Produce Marketing Act, The opposite party also engaged itself in the said illegal business, within the prescribed area, without obtaining valid License under Section 13(2) of the said Act. As alleged

3 3 in the complaint, as on 9 th October, 2008, around 400 packets of such wheat, belonging to the opposite party firm was seized, in presence of witnesses and hence they would be liable to pay penalty under Section 39(2) and 39(3) of the said Act. Learned trial Court took cognizance of the offence and issued process for appearance of the accused/respondent. On appearance of the accused/respondent, learned trial Court explained the particulars of the offence under Section 39(2) and (3) of Assam Agricultural Produce Marketing Act, The said complaint case is presently pending in the Court of learned Chief Judicial Magistrate, Kamrup at Guwahati for disposal. 4. In the meantime, on the date fixed for recording evidence of the witnesses of the complainant, the accused/respondents filed an application invoking the provisions of Section 294 of the Code of Criminal Procedure, 1973, along with as many as 30 numbers of different documents, with a prayer for issuing direction to the complainant, petitioner committee to admit the said documents, before the evidence of the complainant was recorded. The petitioner accordingly filed written objection to the application filed by the accused respondent under Section 294 Cr.P.C. The petitioner raised objection on the ground that the right of the accused to produce any document, would accrue to him only after the accused enters the defence and after recording of the evidence by the complainant/prosecution. 5. The learned counsel appearing for the petitioner pointed out that the accused person resorting to the procedure laid down under Section 294 Cr.P.C, by producing documents in his defence even before completion of the recording

4 4 of the evidence of the complainant witnesses is illegal. Learned counsel for the petitioner submitted that the complainant may be asked to admit or deny the documents in defence submitted in terms of Section 294 of CrPC only by the accused after closing of the evidence of complainant s witnesses. 6. Mr. Kataki, learned counsel appearing for the petitioner relying on the decision of Apex Court reported in (2005) 1 SCC 568 (State of Orissa Vs. Debendra Nath Padhi), submitted that the right of the accused in filing the documents during the course of the Trial would accrue only after the accused entered the defence and not prior to that. In the instant case, without examination of the complainant witnesses, the accused person sought to introduce some documents by resorting to the procedure laid down under Section 294 Cr.P.C. 7. In the State of Orissa Vs. Debendra Nath Padhi (Supra), the Apex Court observed that insofar as the accused is concerned, his entitlement to seek order under Section 91 of the Code of Criminal Procedure, 1973 would ordinarily not come till the stage of defence. Summons to produce documents in terms of provision of Section 91 of Code of Criminal Procedure, 1973 can be invoked only at the stage of taking defence evidence. The observation of the Apex Court reads as follows: 25. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may

5 5 move the court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. Insofar as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it, whether police or accused. If under Section 227, what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by court and under a written order an officer in charge of a police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof. 26. Reliance on behalf of the accused was placed on some observations made in the case of Om Parkash Sharma v. CBI. In that case the application filed by the accused for summoning and production of documents was rejected by the Special Judge and that order was affirmed by the High Court. Challenging those orders before this Court, reliance was placed on behalf of the accused upon Satish Mehra case1. The contentions based on Satish Mehra case1 have been noticed in para 4 as under: (SCC p. 682) 4. The learned counsel for the appellant reiterated the stand taken before the courts below with great vehemence by inviting our attention to the decision of this Court reported in Satish Mehra v. Delhi Admn.1 laying emphasis on the fact that the very learned Judge in the High Court has taken a different view in such matters, in the decision reported in Ashok Kaushik v. State. Mr Altaf Ahmed, the learned ASG for the respondents not only contended that the decisions relied upon for the appellants would not justify the claim of the appellant in this case, at this stage, but also invited, extensively our attention to the exercise undertaken by the courts below to find out the relevance, desirability and necessity of those documents as well as the need for issuing any such directions as claimed at that stage and consequently there was no justification whatsoever, to intervene by an interference at the present stage of the proceedings. 27. Insofar as Section 91 is concerned, it was rightly held that the width of the powers of that section was unlimited but there were inbuilt, inherent limitations as to the stage

6 6 or point of time of its exercise, commensurate with the nature of proceedings as also the compulsions of necessity and desirability, to fulfil the task or achieve the object. Before the trial court the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accused. The application filed by the accused under Section 91 of the Code for summoning and production of document was dismissed and order was upheld by the High Court and this Court. But observations were made in para 6 to the effect that if the accused could produce any reliable material even at that stage which might totally affect even the very sustainability of the case, a refusal to look into the material so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable judicia1/ public time, these observations are clearly obiter dicta and in any case of no consequence in view of conclusion reached by us hereinbefore. Further, the observations cannot be understood to mean that the accused has a right to produce any document at the stage of framing of charge having regard to the clear mandate of Sections 227 and 228 in Chapter 18 and Sections 239 and 240 in Chapter However, learned counsel appearing for the respondent relied on the decisions of the Panjab and Haryana High Court reported in 1987 CRI. L. J. 1335, Vinodkumar and others Vs. State of Haryana, which reads as follows: 3. Undeniably the trial of a warrant case on a police report commences when the accused appears or is brought before a Magistrate. The first step to be taken by the Magistrate in this regard is to satisfy himself that the provisions of Section 207 i.e. with regard to the supply of the documents mentioned therein, have been complied with. The next step is to apply mind on the police report and the documents sent along therewith. Simultaneously, he has been given the power to examine the accused at that stage as thought necessary and then the prosecution and the accused have also the right to an opportunity of being heard. Now when an opportunity of being heard is conferred as of right on the accused, it has to be seen whether there are any regulating factors in the Code by which such opportunity is to be availed of. One such pointer is Section 294 of the Code, which is applicable to

7 7 all trials inclusive of warrant case trials. It is ex facie patent that the prosecution while presenting the police report can support the same with documents and they are required to be considered at the time of the framing of charge. It does not hold to any reason that the accused cannot at that stage produce his documents. This seems to be the reason for such a provision under Section 294 of the Code subject of course to the accused's documents being genuine. And at that stage the documents sought to be introduced by the accused are required to be included in a list and the prosecutor can be called upon to admit or deny the genuineness of each such document. This right is not merely conferred on the accused, but a corresponding right is also vested in the prosecution. Even the documents submitted along with the report under Section 173 of the Code relied upon by the prosecution can be put to the accused and he can be asked to admit or deny the genuineness of each such document. This does away with the formal necessity of proving the genuineness of the document and such document can thereafter be read in evidence without proving of the signature of the person to whom it purports to be signed. The joint effect of the aforesaid two provisions is to put at par the prosecution and the accused so far as the documentary evidence is concerned. One cannot be allowed to score over another by taking shelter in procedural wrangles and tactical gimmicks. Thus, I am of the considered view that the learned Magistrate in suggesting to postpone admission of these documents at this stage on the ground that the complainant was not before him, tended to thwart the rights of the accused to have his documents admitted at that stage so as to be considered while considering the question of charge. Thus, in the interest of justice, it becomes essential to quash his impugned order and regulate the trial by suitable directions. 9. In the case of Md. Akbar and another Vs. State of Andhra Pradesh reported in 2002 Cri. L.J. 3167, Andhra Pradesh High Court while discussing the provision of Section 294 of CrPC observed as follows :

8 8 The documents produced with the petition are certified copies of Order of Civil Court, pahanies and F.I.R., which are all public documents within the meaning of Section 74 of Evidence Act. As per Sec. 76 of the Evidence Act, certified copies of public documents can be issued to any body, and as per Sec. 77 of the Evidence Act certified copies of public documents can be produced in proof thereof. Sub-Section [3] of Section 294 Cr.P.C. applies to private documents, but not to public documents since question of proof of signatures in the certified copies of public documents does not arise. If documents, which are not public documents, are sought to be relied on by the prosecution only, question of proof of those documents and signatures therein would arise. In this case since all the three documents produced by the prosecution are public documents within the meaning of Sec. 74 of the Evidence Act, strictly speaking no formal proof thereof is necessary and so they can be admitted in evidence by virtue of Sec. 77 of the Indian Evidence Act. So I find no merits in this petition. However, in the instant case, there is no indication that the documents submitted by the defence are public documents within the meaning of Section 74 of Evidence Act. Therefore, the decision of the Andra Pradesh High Court in Md. Akbar (supra) would not apply. 10. Mr. P. Kataki, learned counsel appearing for the appellant by referring to the decision of the Hon ble Supreme Court in Orissa Vs. Debendra Nath Padhi (Supra), submitted that the Supreme Court, while discussing the rights of an accused under Section 91 CrPC to produce documents in his possession to prove his defence in clear terms, has observed that the provision of law pre-supposes with reference to the stage when a prayer is made for production of such documents. The width of power of that Section was unlimited, but there were inbuilt, inherent limitations as to the stage or point of time of its exercise, commensurate with the nature of proceedings as also the compulsions of necessity and desirability, to fulfill the task or achieve

9 9 the object. Before the trial court, the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accused. 11. Apparently, in terms of the provision of Section 294 of CrPC, if any document is necessary or desirable for the defence of the accused, the question of invoking the provision of Section 294 CrPC, would not arise at any stage unless the stage is set for the accused to take his defence. The section begins with the sentence where any document is filed before any Court by the prosecution or the accused, the particulars of every such documents shall be included in the list and the prosecution on the accused, as the case may be shall be, or their pleader shall be called upon to admit or deny the genuineness of each such documents. 12. Though there is no indication of the stage at which the provisions of Section 294 can be resorted to, but by adopting the principle laid discussed by the Apex Court in Debendra Nath Padhi (Supra), it will have to be contrived that inherent limitations as to the stage or point of time of its exercise, commensurate with the nature of proceedings as also the compulsions of necessity and desirability, to fulfill the task or achieve the object. Before the trial court the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accused. Therefore, before the accused enters into his defence, the complainant has to adduce evidence to establish the charge, then only question of submitting documents in defence on behalf of the accused, would arise. I would hasten to add here that the accused cannot be denied the right to introduce any

10 10 documents in his defence during cross-examination of the prosecution witness. 13. In view of above discussion, this Court is of the view that the decision of the High Court of Punjab and Haryana, in Vinod Kumar (supra) cannot be pressed into service in the instant case. 14. In a criminal trial, the burden is on the prosecution to prove the accusations against the accused beyond reasonable doubt. Both prosecution and the accused would follow the procedure prescribed under the code of Criminal Procedure 1973 during trial. Accordingly, an accused after framing of a charge or explaining of the offence alleged has to wait for the next stage to follow. Skipping the steps by jumping the procedure provided under the law, however, would not be legally permissible. After the charge is framed or the offence alleged is explained to the accused in a criminal trial, the prosecution is called upon to establish the charge by adducing its evidence. At this stage, the defence will have every right to cross examine the prosecution witnesses in support of its defence stand. It is needless to emphasize and point out the scope of cross-examination of a witness on behalf of the accused facing the charges. On the conclusion of the recording of the evidence of the prosecution witnesses, the trial Court shall as per provision of Section 313 Code of Criminal Procedure 1973, examine the accused and record his statement of defence by putting all such incriminating materials arising against the accused. At this stage of the trial, if the accused has any defence

11 11 to take, he may do so by stating his defence stand to the trial Court. Though, Section 294 CrPC do not specify the stage of the trial at which the provision can be resorted to by filing such documents on behalf of the accused for admission by the prosecution but such a stage would be apparent only when the incriminating materials are established by the prosecution evidence against the accused. However, there is no bar in showing and confronting any documents in defence of the accused, to the prosecution witnesses, during cross-examination. More so, allowing the defence to introduce its documents in defence for admission by the prosecution under Section 294 of CrPC, at any stage of the proceeding, would also unnecessarily entail delay in disposal of the lis. 15. In view of the above discussion, this Court is of the view that the accused cannot be permitted to file documents as per provision of Section 294 CrPC in his defence, at any stage of a proceeding, calling upon the prosecution to admit such documents before adducing the prosecution evidence and without taking his own defence stand. An application under Section 294 CrPC can be submitted on behalf of the accused on the conclusion of the recording of the prosecution evidence and after recording of the statement of the accused in terms of the provision of Section 313 CrPC. However, it must be made clear that the accused, may, if so advised, confront the prosecution witnesses with the documents so submitted by him during trial at the appropriate time. Nevertheless, the accused after giving his own reply to the incriminating materials appearing against him, in the case by giving his own defence stand, will be at liberty to file application under Section 294 CrPC, with a prayer for a

12 12 direction by the Court to call upon the prosecution to deny or admit the genuineness of the documents in his defence. 16. In view of the above, the impugned order dated passed by the learned trial Court is set aside and the matter is remitted to the trial Court with a direction to consider application under Section 294 of CrPC, filed by the respondent/opposite party, only after recording his statement under Section 313 CrPC. However, the respondent/opposite party shall not be debarred from using those documents indicated in his application under Section 294 CrPC, during cross-examination of the complainant s witnesses. 17. With the above observations and directions, this revision petition is disposed of. JUDGE Pratibha/TDR

13 13 IN THE SUPREME COURT OF INDIA Criminal Appeal Nos. 157, 179 and 224 of 2007 Decided On: Appellants: Sidhartha Manu Sharma Vs. Respondent: State (NCT of Delhi) In any case, both Section 293 and Section 294 of the Code which dispense with formal proof of documents under certain circumstances make it abundantly clear that the documents sought to be relied upon must be the originals. MANU/MH/0391/2006: Peacock Industries Ltd., Mr. Daud Ali Dawood, Manging Director of Peacock Industries Ltd. and Mr. Munwar Hussain working at Peacock Industries Ltd. and Ors. etc. ect. Vs. Respondent: Budhrani Finance Ltd. and State of Maharashtra and Ors. etc. etc. Equivalent Citation: 2006(2)ALD(Cri)26, IV(2006)BC302, 2006(5)MhLj Keeping the present scenario, in so far as cases under Section 138 of the Act are concerned, in view and considering the request of all the learned Counsel for the parties, I deem it appropriate, in order to accomplish the underline object of the Act, to pass the following guide-lines/directions: (a) The directions passed by the Division Bench in KSL and Industries Ltd.'s case must be followed scrupulously by all the courts dealing with cases undersection 138 of the Act. The Courts should also bare in mind

14 14 the judgment of this Court in Bhaskar Sen v. State of Maharashtra and Ors. MANU/MH/0698/2004: 2004(4)MhLj1115 while dealing with the application/s for exemption. Similarly, while recording evidence the procedure laid down by the Supreme Court in Bipin Shantilal Panchal's case must be followed whenever an objection is raised regarding the admissibility of any material or any item of oral evidence. (b) On receiving a complaint under Section 138 of the Act, the Magistrate should apply his mind to the complaint at the very inception and see whether a case is made out against the accused person/s before issuing process to them on the basis of the complaint. The complaint must contain material facts and particulars constituting an offence under Section 138 to enable the Magistrate to make up his mind for issuing process under Section 204 of the Code. (c) The Court must direct the complainant to adopt, all the modes of service of summons as provided for in Section 144 of the Act and need not depend only upon the police machinery. If summons is served on the accused person/s either by speed post or by courier services (as and when they approved by a Court of Sessions) or with the help of police or by as observed in KSL and Industries Ltd. case, the Complainant should file affidavit of service with the proof of service and if the Court is satisfied about the service, such service of summons may be treated as a good service and in that case the Court can proceed with the case without awaiting service of summons through Police. (d) The Magistrate issuing summons to the accused or a witness must direct a copy of summons to be served at the place where such accused or witness ordinarily resides or carries on business or personally works for gain as provided for in Section 144(1) of the Act. (e) It is also open for the Court, in a given case, to use the police staff attached to the Court, outside Court working hours, to serve the summons on accused or witness residing within the jurisdiction of the Court. (f) Where an acknowledgement purporting to be signed by the accused or the witness or an endorsement purported to be made by any person authorised by the postal department or courier services that the accused or the witness refuse to take delivery of summons has been received, the Court issuing summons may declare that the summons has been duly served as provided for in Section 144(2) of the Act. (g) The Complainant while filing the complaint under Section 138 of the Act should avoid adding unnecessary person/s as accused in the case as also making irrelevant/unnecessary averments/statement in the complaint, keeping scope for the accused to dispute the same at initial stages and seek to quash the process either in revision before the Sessions Court or in writ petition in the High Court. (h) The Complainant/s should be more diligent while filing the complaint against a company/firm. Instead of adding all the Directors/Partners of the company/firm as accused, the complaint should be filed only against the person/s "in charge of, and responsible for" the conduct of the business of the company/firm at the time the offence was committed, as contemplated under Section 141 of the Act. He should make a categoric averment in the complaint making it clear that accused was/were in charge of, and responsible for the conduct of the business of the company/firm.

15 15 (i) It is possible, in a given case, the Complainant while filing the complaint was not knowing as to who was/were the person/s in charge of and responsible for the conduct of the business of the company/firm at the time of the offence and may, therefore, add all the Directors/Partners as accused stating that at the relevant time they all were in-charge of and responsible for the conduct of the business of the company/firm. In such case/s, after service of summons on all the Directors/Partners, if the statement is made on behalf of the company/firm supported by a resolution of the Board of Directors or any other authenticate document, or by placing a deed of partnership or a deed of retirement on record, indicating the name/s of such Director/s/Partner/s of the company/firm, the Complainant may delete the name/s of other Directors/Partners from the array of the accused to avoid further proceedings for quashing by such directors/partners to avoid further delay in disposal of the case. The complainant, however, cannot be compelled to do so. (j) The Court, on being satisfied, may give option to the Complainant to delete the name/s of all such accused who was/were not in charge of and was/were not responsible for the conduct of the business of the company/firm and pass order of discharge or acquittal, as case may be, in respect of such accused. (k) Service of summons on the director/s or partner/s at the registered address of the company/firm must be treated as good service that being a place where the accused carries on business for gain as provided for under Section 144(2) of the Act. (l) The complainant should, as far as possible, file copies of all the relevant and necessary documents with the complaint duly attested/endorsed by him or his advocate as true copies and keep originals ready for perusal of the Court at the stage of verification and issue of process. The Courts should, avoid to keep original documents on record at that stage. (m) The Court must call upon the accused or his pleader, as provided for under Section 294 of the Code, to admit or deny the genuiness of the documents, other then the documents which have presumptive value in law. That would help the Complainant to know which of the documents he would have to prove by adopting such mode, as may be advised, during his own or his witnesses' examinations in chief on affidavit. The procedure undersections 294, should be followed before the complainant files his affidavit under Section 145(1) of the Act. (n) The Complainant should avoid filing of unnecessary and irrelevant documents either with the complaint or at any subsequent stage including the stage of evidence being recorded orally or on affidavit. He should, as far as possible, rely upon the documents which have presumptive value and file original documents in support of the averments in the complaint to avoid further proceedings challenging the genuineness and/or admissibility of the documents at the stage when they are produced on record. (o) The documents that may be relevant and necessary to be filed with the Complaint under Section 138 of the Act, would be as follows: dishonoured cheque/s; bank memo of drawer's bank; debit advise of drawee's bank; office copy of the notice endorsed by an advocate or a

16 16 party as true copy with the acknowledgement receipt and/or postal certificate and/or document evidencing despatch of notice; returned envelope, if the notice was refused; reply, if any, to the notice by the accused; office copy of the bills or invoices, if any, with the endorsement of the advocate or the complainant as true copy; original agreement, or other document, if any, executed between the parties reflecting the transaction for which the cheque was issued; etc. (p) The Complainant should file his affidavit in lieu of examination in chief with all the documents to be exhibited in the court. The affidavit should be in the form, as if he is giving oral evidence in the Court, proving all the documents objected to by the accused and it should not be, in any case, in the form of written argument and avoid reproduction of the complaint as it is. The court on the very date shall see that a copy of the affidavit with all the proposed exhibits is served on the accused and then grant a short adjournment, if prayed for, to enable the accused to read it and raise an objection, if any, regarding admissibility of the document/s or any item of evidence. On the adjourned date of hearing the accused should place his written objection, if any, on record which the Magistrate should make note of and mark the objected document/s, (other than the documents which have presumptive value in law) tentatively as exhibits, as observed in Bipin Panchal's case, or mark it for identification where the objection is with regard to the mode of proof, alleging the same to be irregular or insufficient to be decided at the stage of final judgment. If the objection is oral, raised in the course of recording of oral examination-inchief, the Court should note the objected item of the evidence or the document and mark it tentatively as exhibit or for identification, as case may be, to be decided at the stage of final judgment, and direct the accused to cross examine the witness without prejudice to such objections. (q) If the objection is with regard to the mode of proof in respect of any of the document/s (other than the documents which have presumptive value in law) alleging the same to be irregular or insufficient the court should allow the Complainant on his application made under sub Section (2) of Section145, before his cross examination begins, to lead further evidence by stepping into witness box to cure the defect and adopt such mode as would be regular and sufficient. The cases where the Complainant does not make application under section 145(2), the Court should mark it for identification and defer the decision on such objection to be decided at the stage of final judgment. (r) If the accused desires to be a witness for the defence and if he makes an application seeking such permission in writing to the Magistrate as contemplated under Section 315 of the Code he may be allowed to tender his evidence on affidavit. Once the accused is allowed to tender his evidence on the affidavit it would be subject to all just exceptions and the guidelines and the directions passed in this judgment (18)ACR256 IN THE HIGH COURT OF ALLAHABAD Government Appeal No of 1978

17 17 Decided On: Appellants: State of U.P. Vs. Respondent: Smt. Barphi and Ors. Hon'ble Giridhar Malaviya and A.B. Srivastava, JJ. Judges/Coram: It has been contended by learned Counsel for accused Respondent, Shri K.C. Saxena that the report of the document expert and the photographs relied by him, not having been proved in accordance with law, the same is not admissible in evidence to arrive at a conclusion about the identity of the writer of the letters Exhibits 4, 5, 9 and 10 Reference in this regard may, however, be made to Subsection (3) of Section 294 of the Code of Criminal Procedure which says that where the genuineness of any document is not disputed, such document may be read in evidence in any enquiry, trial or other proceeding under the code, without proof of signature of the person 10 whom it purports to be signed. Undisputedly, the genuineness of Exhibit Ka 17, the report with reasons of the expert, and the photo enlargement of the disputed and specimen writings, prepared and utilised by him, was admitted by the defence in the lower Court It is true that the documents were not filed by the prosecution with a list as required in Sub-section (1) of Section 294 Code of Criminal Procedure but, desirable thought it was that the filing should have been with a list of documents, its absence does not go to nullify the admission of genuineness made under Sub-section (3) ofsection 294 Code of Criminal Procedure. There was also not made out any case under the proviso to Section 294 to require the document expert to be examined in the Court to prove his report and other documents.