Criminal Application No.3400 of 2006

4th December, 2006

Petitioner Counsel: Mr. R. B. DESHPANDE
Respondent Counsel: Mr. N. V. GAVARE

Cases Cited:
Mst. Bibi Aisha Vs. The Bihar Subai Sunni Majlis Avaqaf, AIR 1969 SC 253 [Para 5,8]
N. Chitaranjan Vs. Jayarajan, 2005(1) DCR 540 [Para 5]
Ashok Dulichand Vs. Madhavlal Dube, AIR 1975 SC 1748 [Para 6,9]
Mst. Sardaran Vs. Sunderlal Baldeo Prasad, AIR 1968 Allahabad 363 [Para 6,9]
Mt. Atra Devi Vs. Ramswaroop Prasad Singh, AIR 1972 Patna 186

JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith. By consent of parties, heard finally.

2. The learned Counsel appearing on behalf of the respondent waives service for the respondent.

3. By way of present application, the applicant has challenged the order dated 28th August, 2006, passed by the Judicial Magistrate (First Class), Ashti, thereby rejecting the application of the present applicant below Exhibit 41 in S.C.C. No.560/2003, which was for permission to lead secondary evidence.

4. The present applicant has filed a complaint against the respondent under Section 138 of the Negotiable Instruments Act, 1881. It is the contention of the applicant that on 17th September, 2003, the original cheque was stolen by the present respondent from the applicant. In this premise, a complaint came to be filed on 18th September, 2003. In the said complaint, initially an application came to be filed before Exhibit 38 seeking a direction to the respondent to deposit the cheque allegedly in his custody. The learned Magistrate vide order dated 4th February, 2006, accepting the contention of the respondent/accused, that the cheque is not in his custody, rejected the application. Thereafter, the present applicant filed an application below Exhibit 41 thereby seeking permission to lead secondary evidence. It is to be noted that it is not stated in the application as to what secondary evidence the applicant desires to lead. However, the learned trial court vide impugned order observed that the xerox copy is not admissible in the secondary evidence. It is further observed that the applicant has not led any evidence to prove that the cheque is lost and, therefore, rejected the application. Being aggrieved thereby, the applicant has filed the present application.

5. Mr. R. B. Deshpande, learned Counsel appearing on behalf of the applicant, submits that what was sought by the present applicant was only permission to lead secondary evidence. He submits that the learned trial court without granting any opportunity has outright rejected the application, thereby depriving the applicant to prove that the cheque was either stolen by the respondent or the applicant has lost it. He submits that this has caused great prejudice to the right of the applicant to prove his case. He further submits that the finding of the trial court, that the xerox copy cannot be read as a secondary evidence, is perverse one. In support of his contention, the learned Counsel for the applicant has relied upon judgment of the Apex Court in case of Mst. Bibi Aisha and others Vs. The Bihar Subai Sunni Majlis Avaqaf and others, reported in AIR 1969 Supreme Court 253. He has further relied upon judgment of Kerala High Court in case of N. Chitaranjan Vs. V. Jayarajan and another, reported in 2005(1) Dishonour of Cheque Reporter 540. He has also relied upon unreported judgment of this Court in Civil Revision Application No.500 of 1991, in case of Naimoddin s/o. Osmanoddin & others Vs. Vijaykishan s/o. Eknath Kabra & others.

6. On the contrary, Mr. N. V. Gavare, learned Counsel appearing on behalf of the respondent submits that there was finding of the learned trial court, that the cheque is not in custody of the respondent/accused. He submits that the said finding is not challenged. He, therefore, submits that no case was made out for grant of permission to lead secondary evidence under Section 65(a) of the Indian Evidence Act. In support of his submission, he has relied upon judgment of the Apex Court in case of Ashok Dulichand Vs. Madhavlal Dube and another, reported in AIR 1975 Supreme Court 1748. He further submits that it is for the applicant who seeks to lead secondary evidence, to establish that the original cheque is lost. He submits that unless that is proved, the secondary evidence cannot be permitted to be led. He has further relied upon the judgment of the Allahabad High Court, in case of Mst. Sardaran and others Vs. Sunderlal Baldeo Prasad and others, reported in AIR 1968 Allahabad 363. He has also relied upon judgment of Patna High Court in case of Mt. Atra Devi and others Vs. Ramswaroop Prasad Singh and others, reported in AIR 1972 Patna 186, in support of the same proposition.

7. In the present case, it can be seen that the present applicant even prior to the filing of the complaint, had lodged a Police complaint, that the original cheque was stolen by the present respondent/accused on 17th September, 2003. Thereafter the complaint is filed on 18th September, 2003. In the said complaint, the averment regarding the respondent/accused stealing the cheque also finds place. Thereafter, the applicant has filed an application for direction to the present respondent/accused to produce the said cheque. However, only on the say of the respondent/accused, that it is not in his custody, the said application came to be rejected. In that view of the matter, the application for permission to lead secondary evidence has been filed.

8. In so far as the observation of the learned trial court, that the xerox copy cannot be read as secondary evidence, is concerned, the same appears to be in total ignorance of the provisions of law. Section 63(2) of the Indian Evidence Act, 1872, reads thus :-

"Secodary evidence - Secondary evidence means and includes -

(1) .........................

(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;

(3) .........................

(4) .........................

(5) ........................."

It can be thus seen that a photostat copy is covered by Sub-Section 2 of Section 63 of the said Act. Even otherwise, the contention of the applicant is well supported by the judgment of the Apex Court in the case of Mst. Bibi Aisha and others (supra) wherein it has been held that even plain copy of the document and not necessarily certified copy of document is admissible as secondary evidence.

However, in my view, it was not at all necessary for the learned trial court to go into that aspect at this stage. What the leaned trial court was required to consider is as to whether the applicant has made out a case for grant of permission to lead secondary evidence. Whether the said secondary evidence was to be accepted or not, was a stage which had not yet arrived.

9. In so far as the reliance placed by the learned Counsel for the respondent/accused on the judgment of the Apex Court in Ashok Dulichand's case (supra), and of the Patna High Court in Mt. Atra Devi's case (supra), is concerned, in my view, the said reliance would not be of much assistance to the case of the respondent. In Ashok Dulichand's case, after the evidence was led, the Court had come to the conclusion that the election petitioner had failed to prove that the successful candidate was in possession of the original manuscript and, therefore, secondary evidence could not be led. In case of Mst. Sardaran's case (supra), the Allahabad High Court, so also, in Mt. Atra Devi's case (supra), the Patna High Court, have found that after leading the evidence the party had failed to proved that the original was lost and, therefore, secondary evidence cannot be permitted to be led.

10. In the present case, the application has been thrown out of the court, at the threshold. Whether the secondary evidence which the applicant seeks to lead is to be accepted or not, is a stage yet to arrive. The limited question before the trial court was whether to permit the applicant to lead the secondary evidence or not.

In the unreported judgment of this Court delivered in Civil Revision Application No.500 of 1991 (supra), in almost similar facts, this Court has observed thus :

"There is no dispute that the necessary notice under the provisions of Order 12, Rule 8 of Civil Procedure Code is already given to the defendants and in pursuance of the said notice, the original kararnama is not produced. Prior proceedings between the parties definitely makes out a reference to the transaction which is either named as Isar Pavti or a kararnama and the contention of the petitioners that it was in the nature of a security for loan also finds reference in the earlier proceedings. On the facts and material on record, there is satisfaction of the provisions of Section 65(a) of the Evidence Act and in the context, it will have to be stated that the learned Judge was in error in rejecting the application for permission to lead secondary evidence."

In my view, the observations of this Court in the aforesaid case would support the case of the applicant. The applicant has led the foundation in his Police complaint, so also, complaint under Section 138 of the Negotiable Instruments Act, that the cheque is stolen by the present respondent/accused. Whether that is a matter of fact or not, would be decided only after the applicant is permitted to lead secondary evidence. In that view of the matter, I find that the impugned order is unsustainable in law and is liable to be quashed and set aside.

11. In the result, the Criminal Application is allowed.

The order dated 28.8.2006 passed by the learned Judicial Magistrate (First Class), Ashti, in S.C.C. No.560/2003 below Exhibit 41, is quashed and set aside. The application of the applicant for leading secondary evidence, below Exhibit 41, is allowed. It is needless to state that after permitting the applicant as well as the respondent to lead evidence, the learned trial court would decide whether the secondary evidence which the applicant seeks to lead, is to be admitted or not.

12. Rule is made absolute in the terms indicated above.

Application allowed.