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Karnataka High Court · body

2009 DIGILAW 672 (KAR)

Himatsingka Seide Ltd. v. Shambappa

2009-08-27

SUBHASH B.ADI

body2009
Judgment :- Petitioners are accused Nos.1 to 5 in C.C.No.22346/2001 pending on the file of 10th Addl.C.M.M., Bangalore City. 2. Respondent has filed a private complaint under Section 200 of Cr.P.C. for an offence punishable under Sections 323, 341, 342, 365, 387, 417, 419, 420, 426, 440, 506B r/w Sections 24, 25, 26 and 34 of the IPC. 3. The learned Magistrate after recording sworn statement and considering the material produced by the complainant, ordered for issue of summons and now posted for evidence. 4. Complainant had filed an application under Section 91 of Cr.P.C. interalia seeking direction to the accused No.1 or its M.D. to produce the Memorandum of Understanding (M.O.U.) entered into between the first accused and complaint on 16.4.1994. The learned Magistrate by his order dated 21.2.2007 rejected the said application and directed both the parties to go on with the matter on the day to day basis. The said order was called in question before the IV Addl. City Civil and Sessions Judge, Mayo Hall Unit, Bangalore, in Criminal Revision Petition No.25051/2007. The learned Sessions Judge by his order dated 3.1.2009 confirmed the order of the learned Magistrate. 5. Complainant is examined as PW1 and in his evidence, he sought for marking M.O.U. as a secondary evidence. However, an objection was raised by the learned counsel for the accused for marking alleged secondary evidence, interalia alleging, without proving the existence of the original, the question of marking secondary evidence does not arise. The learned Magistrate over ruled the objection and permitted the complainant to lead secondary evidence by producing the xerox copy of the M.O.U. subject to proof of existence of original. At this stage, this petition has been filed. 6. The learned senior counsel appearing for the petitioners accused submitted that, when an application was filed under Section 91 of Cr.P.C. seeking summoning the alleged M.O.U. from the accused No.1 the said application was rejected with an observation that; ‘when the accused do not have such document, question of directing the accused persons to produce the said documents does not arise and also on the ground that, the accused cannot be directed to produce the Memorandum of Understanding to prove the case of the complainant.’ This observation is also reiterated by the revisional Court in its order at paragraph 8 of the order. 7. 7. The learned senior counsel submitted that, such observation was also not warranted. He further submitted that, when the existence of document itself is not proved by the complainant, question of marking of xerox copy as secondary evidence is per se illegal. 8. He relied on the provisions of Sections 63 and 65 of the Evidence Act and submitted that, Section 65 of the Evidence Act and submitted that, secondary evidence may be given of the existence, condition or contents of a document subject to, when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it and when, after the notice mentioned in Section 66, such person does not produce it. The secondary evidence could be led in evidence. In this case, nothing shows as regard to existence or otherwise as required under Section 65 of the Evidence Act, still the learned Magistrate has permitted the production of Xerox copy of alleged original. 9. He submitted that, the existence of original is must. If the existence of the original itself is not proved, allowing of marking the secondary evidence would be contrary to Section 65 of the Evidence Act. 10. In support of his case, he relied on the judgment of the Apex Court reported in AIR 2007 SC 1721 in the mater of Smt. J. Yashoda –vs- Smt. K. Shoba Rani and submitted that, the Apex Court on considering the provisions of Sections 63 and 65 of the Evidence Act, has held that, the secondary evidence as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible, through failure of the party who fails to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. 11. If the original itself is found to be inadmissible, through failure of the party who fails to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. 11. At para 9 Supreme Court observed as under; The rule which is the most universal namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by our, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. 12. He further submitted that, when primary evidence could not be given, the secondary evidence is given, and that could be done only on fulfillment of the requirement of the provisions of Section 65 of the Evidence Act. 13. He also relied on another judgment reported in AIR 2004 SC 4082 in the matter of Smt. Dayamathi Bai Vs. K.M. Shaffi and submit that, the objection has to be raised when the document is taken on record and no objection could be raised at a later stage. It is in this context, he submitted that, when the complainant in the witness box has submitted that, he wants to produce secondary evidence and mark it, the objection has been raised by the accused. 14. Law requires that, best available evidence to be produced. If the primary evidence is available, it should be given first. In the absence of the primary evidence, the secondary evidence may be given. 14. Law requires that, best available evidence to be produced. If the primary evidence is available, it should be given first. In the absence of the primary evidence, the secondary evidence may be given. It is also well settled law that documents have to be proved by primary evidence. Some documents are admissible, some required to be proved according to the law. However, when the document itself could not be produced, secondary evidence could be produced. 15. Secondary evidence is defined under Section 63 of the Evidence Act, which reads as under: Section 63: Secondary evidence means and includes: (1) certified copies given under the provision hereinafter contained; (2) copies made from the original by mechanical process which in themselves ensure the accuracy of the copy, and copies compared with such copies; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them; (5) Oral accounts of the contents of a document given by some person who has himself seen it. 16. In this case, the party has sought to produce the Xerox or photo copy of the alleged M.O.U. the xerox or photo copy by itself will not become secondary evidence, unless it shown that, it is accurate copy of the original. 17. In case of xerox or photo copy, Section 63 of the Evidence Act requires that, the said copy must itself ensure that it is accurate copy, such as competent authority certifying the copy as accurate copy of the original. Hence, the photo copy by itself may not be admissible, but if it is proved that it is made from the original, it is admissible. 18. Section 65 of the Evidence Act deals with cases in which the secondary evidence could be given. Secondary evidence could be given of existence, condition or contents of a document. Secondary evidence could be given in the following manner. 18. Section 65 of the Evidence Act deals with cases in which the secondary evidence could be given. Secondary evidence could be given of existence, condition or contents of a document. Secondary evidence could be given in the following manner. (a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court or of any person legally bound to produce it, and when after the notice mentioned in Section 66, such person does not produce it; (b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representation in interest; (c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) When the original is of such a nature as not to be easily movable; (e) When the original is a public document within the meaning of Section 74; (f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in (India), to be given in evidence; (g) When the original consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection. 19. Contents of document could be given by secondary evidence under Section 65 (a) (c) and (d), inasmuch as when the document is in possession or power which cannot be produced through process of the Court or person is not legally bound to produce, or when original is destroyed or original cannot be moved from the place. However, if condition or contents are admitted, secondary evidence could be given. 20. In case the document is public document or certified copy as permitted by law or by the evidence of person who has examined and who is skilled in the examination of document. 21. To prove the secondary evidence, the party must adduce evidence in terms of Section 65 of the Evidence Act. However, in this case, such stage has not reached. 21. To prove the secondary evidence, the party must adduce evidence in terms of Section 65 of the Evidence Act. However, in this case, such stage has not reached. The learned Magistrate has only permitted to produce the xerox copy of the M.O.U. subject to proof of existence of the original. 22. Undisputedly, the application filed by the complainant as regards to summoning of the document from the accused has been rejected and thereafter the complainant has entered into the witness box. During the course of evidence, the complainant has stated that, M.O.U. be permitted to be marked as secondary evidence. At that stage, the Court has passed the following order. “Objections raised by the accused for marking of xerox copy of M.O.U. is hereby rejected. The complainant is permitted to lead secondary evidence by producing xerox copy of M.O.U. subject to proof of existence of original M.O.U.” 23. From the order dated 23.5.2009 what appears is that neither the complainant has produced the xerox copy of the M.O.U. nor the original has been produced. At this stage, order has been passed. The learned Judge has taken care to mentioned that the xerox copy to be produced subject to existence of the original M.O.U. In this case, even before the Xerox copy is produced and even before the complainant has made effort to prove the existence of original M.O.U., this Criminal Petition has been filed. The Apex Court in a judgment relied by the learned senior counsel for the accused held that, the existence of the original is must i.e. existence in terms of Section 65 of the Act. There cannot be disputed that the existence of the original has to be there, otherwise there cannot be any secondary evidence. No secondary evidence is exists without the original. Only under the circumstances when it is not possible to produce the original for the reason stated under Section 65(a) to (g) of the Evidence Act. In this case, the learned Magistrate has only permitted that complainant to produce the Xerox copy subject to existence of the original. If there is no original, if the original itself is not in existence, it is for the complainant to produce the original to show from the evidence the condition and contents of the document by establishing one of the circumstances under Section 65 of the Act. 24. If there is no original, if the original itself is not in existence, it is for the complainant to produce the original to show from the evidence the condition and contents of the document by establishing one of the circumstances under Section 65 of the Act. 24. In this case, so far, neither the Xerox copy is produced nor any document is marked. From the order of the learned magistrate, it is clear that, the burden is on the complainant to produce evidence to show the existence of the original, only if the existence is shown, the further question of marking arises. It is needless to mention that, every secondary evidence has to be proved in accordance with the provisions of Sections 63 and 65 of the Evidence Act. Since that stage has not reached nor that document is produced, in my opinion, this petition is pre-matured. In the light of the above observations, this petition fails and same is dismissed.