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2011 DIGILAW 2228 (RAJ)

Lalit Kumar Khamesara v. Prakash Chandra

2011-10-17

SANDEEP MEHTA

body2011
JUDGMENT 1. - This misc. petition has been filed by the petitioner challenging the order dated 8.12.2010, passed by the learned Special Judicial Magistrate [Negotiable Instruments Act Cases] No. 1, Udaipur in Regular Criminal Case No. 931, of 2009, allowing the application filed by the respondent (complainant) Prakash Chandra under Section 65 of the Indian Evidence Act for taking secondary evidence on record. The said order was challenged by the petitioner by way of filing a Revision Petition No. 3 of 2011, [Lalit Khamesara v. Prakash Chandra], against the said order and the said revision too has been dismissed by the learned Additional Sessions Judge No. 3 Udaipur by order dated 22.9.2011 . 2. It is against the said orders this the criminal misc. petition has been filed and arguing on behalf of the petitioner, Mr. Pradeep Shah learned counsel submitted that in this case, there was no justification for the learned Trial Judge to have allowed the coloured Photostat copy of the cheque, on the basis of which, the complaint was filed to be taken on record as secondary evidence. He submits that the essential conditions of Section 65 of the Indian Evidence Act are not satisfied in this case because still the FIR pertaining to the loss of the cheque is pending investigation and unless and until, the report of the police in relation to the cheque being irretrievably lost is received, the secondary evidence in relation thereto cannot be permitted to be given. 3. I have perused the order impugned and have given thoughtful consideration to the impugned orders as well as to Section 65(c) of the Indian Evidence Act. In this case, the complaint is pending since 2005 and the accused petitioner is trying to delay the matter by filing repeated applications on different grounds. The matter was posted for cross-examination of the complainant on 22.2.2007 and on 10.2.2010, the counsel for the petitioner stated to the Court that the original cheque was missing and as such, the Court directed to file the FIR in the matter. From perusal of the order impugned it is revealed that the complainant had filed a certified coloured Photostat Copy of the cheque on the record. From perusal of the order impugned it is revealed that the complainant had filed a certified coloured Photostat Copy of the cheque on the record. The Revisional Court observed that the application filed by the complainant under Section 65 of the Indian Evidence Act was absolutely justified because, as per the provision of Section 65(c) of the Indian Evidence Act, the coloured certified copy of the cheque was justifiably taken on record as secondary evidence.Sec. 65(c) of the Indian Evidence Act is quoted here as under : "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." 4. Thus, it is apparent that the loss of the cheque has been used by the accused in order to delay the proceedings of the case. By virtue of the provision of Section 65(c) there are circumstances to infer that the complainant is being justified in proving the cheque by secondary evidence because the loss of the original cheque is not on count of any act of the complainant. Accordingly, the Trial Court was absolutely justified in permitting the secondary evidence of the cheque by permitting the coloured Photostat Copy to be proved as secondary evidence. The present application filed by the petitioner for contesting the order of the Trial Court and for permitting the secondary evidence to be taken on record is nothing but a dilatory tactics. Accordingly, no abuse of process has been shown from the orders of the Court below. The revision petition is thus dismissed with a cost of Rs. 5,000/- on the petitioner. The petitioner shall deposit the cost with the Trial Court and the same shall be deposited in the Free Legal Aid Scheme. 5. The learned Trial Judge is directed to proceed with the matter expeditiously as directed by the learned Additional Sessions Judge No. 3 Udaipur while deciding the revision filed by the petitioner on 22.9.2011. The petitioner shall be permitted to contest the matter before the Trial Court only after depositing the cost as directed above.Petition Dismissed. *******