Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 1263 (RAJ)

Abdul Mutlib v. State of Rajasthan

2012-05-14

MAHESH BHAGWATI

body2012
ORDER : Mahesh Bhagwati, J. Challenge in this Criminal Misc. Petition is to the order dated 12th May, 2009, whereby the learned Additional Chief Judicial Magistrate, CBI Cases, Jodhpur permitted the complainant non petitioner no.2 Ram Arora to file the photostat copies of certain documents as secondary evidence. 2. Shorn of unnecessary details, the facts of the case are that one complaint for the offence under Section 138 of Negotiable Instruments Act came to be filed by the non petitioner no.2-complainant Ram Arora against the accused petitioner Abdul Mutlib in the court of ACJM, CBI Cases, Jodhpur. During the trial, the complainant Ram Arora filed photostat copies of the bills in the court imploring that this photostat copy should be treated as secondary evidence under Section 65 of Indian Evidence Act. 3. The trial court after hearing the parties allowed the prayer and permitted the complainant to file the photostat copies of the bills as secondary evidence. 4. Having heard the learned counsel for the parties and carefully scanned the relevant material on record including the provisions of law, a very short question springing for consideration in the instant petition is as to whether the photostat copy of a carbon copy of a bill is a secondary evidence within the meaning of Secondary Evidence defined under Section 63 of Indian Evidence Act? 5. At the very out-set, it is relevant to record that the said photostat copies are found to be copies of carbon copies of bills. It is stated that there was a partnership firm in the name and style of 'The Watches of the World'. The petitioner accused purchased watches and made the payment through cheque. The original bill was given to the buyer and carbon copy of the bills remained in the Bill Book. This partnership firm later-on got dissolved, but the bill book probably either was left with the partner of the firm when the account was tallied or it is misplaced. However, its production was not possible. The photostat copies of the carbon copies are genuine documents, the genuineness of which cannot be questioned at this stage. 6. Learned counsel for the petitioner canvassed that a photostat copy of a carbon copy, if not compared with the carbon copy does not fall within the definition of Secondary Evidence under Section 63 of Indian Evidence Act. The photostat copies of the carbon copies are genuine documents, the genuineness of which cannot be questioned at this stage. 6. Learned counsel for the petitioner canvassed that a photostat copy of a carbon copy, if not compared with the carbon copy does not fall within the definition of Secondary Evidence under Section 63 of Indian Evidence Act. Sub-section (2) of Section 63 of Indian Evidence Act mandates that copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies, are the secondary evidence. In the instant case, the photostat copies are not compared with the carbon copies, hence, they are not admissible as secondary evidence. He cited two judgments in support thereof. 7. E Converso, the learned counsel for the non petitioner no.2 complainant contended that the impugned order rendered by the trial court is just and proper, which warrants no intervention for the simple reason that the complainant before dissolution of the partnership firm got a photostat copy done from the carbon copy of the bill, but since that bill book is not traceable, there is no ground to cast any doubt upon their genuineness. Hence, in view thereof, this criminal misc. petition deserves to be dismissed. 8. In the case of Raja Mahadeva Royal Y.B. v. Raja Virabasava Chikka Royal and Other reported in AIR (35) 1948 PC 114, the Privy Council albeit adjudged that the documents being merely copies of copies, the originals not having been satisfactorily accounted for, were inadmissible in evidence and they need to be rejected, but quoting the famous dictum of Lord Mansfield, the Privy Council also observed as under:- "famous dictum of Lord Mansfield that it is safer to admit a document the legality and the admissibility of which is in question rather than to shut it out from the evidence." 9. It is undeniably and un-disputably a settled proposition of law that a photostat copy of the copy of a document, the original not having been satisfactorily accounted for, is not admissible in evidence and such evidence should be rejected. 10. Adverting to the facts of the instant case, it is found that photostat copies in question are nothing, but the photostat copies of carbon copies of bills, which were prepared through a mechanical process. The case of the complainant non petitioner no. 10. Adverting to the facts of the instant case, it is found that photostat copies in question are nothing, but the photostat copies of carbon copies of bills, which were prepared through a mechanical process. The case of the complainant non petitioner no. 2, of-course, falls within sub-section (2) of Section 63 of Indian Evidence Act, but the photostat copies can be treated to be secondary evidence only when these photostat copies are compared with the copies prepared through mechanical process. The photostat copies in question, are not found to have been compared by the complainant-non petitioner no.2 from the copies obtained through mechanical process, which are carbon copies of the original bills. If, in the interest of justice, the famous dictum of Lord Mansfield is adhered to, then it is safer to admit a document, the legality and the admissibility of which is in question, can be adjudicated or adjudged at the stage when the case is finally decided by the court. Mere marking of an exhibit on the document does not dispense with the proof of document or to say mere marking of an exhibit does not prove the genuineness or the contents of the document. If an exhibit is marked on any document, that simply leads the court to read it while appreciating the evidence and the legality, admissibility and the genuineness of the document is yet to be adjudicated, but the objection to admissibility of secondary evidence should be taken before it is admitted in evidence. Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. Where the party against whom the secondary evidence is sought to be admitted, does not object to the admission of the secondary evidence which is a document, and such document is marked exhibit without objection, it shall be deemed that he has waived the objection available to him. It is for the party desiring to produce secondary evidence to prove the loss of the original, and it must do so to the satisfaction of the court. It is for the party desiring to produce secondary evidence to prove the loss of the original, and it must do so to the satisfaction of the court. The question whether the original had been lost is properly to be decided by the trial court, and is treated as depending very much on the discretion of the trial judge. His conclusion should not be overruled, except in a very clear case of miscarriage of justice. The question, whether the non production of the original is due to loss, or any other sufficient reason, not arising from his own default or neglect, is one of fact and cannot be opened in second appeal. 11. Undeniably, the copy of a carbon copy, if not compared, is not admissible in evidence and it should be abandoned outrightly, but this observation is required to be made by the trial court when the case is finally decided. It is for the court to see as to whether the document, which has been tendered in evidence, is a genuine and admissible in evidence or not under the provisions of Indian Evidence Act; whether a document falls within the category of secondary evidence or not; whether the untraceable original book has been satisfactorily accounted for by the party or not? These questions are not required to be adjudicated while invoking inherent jurisdiction by this Court under Section 482 of CrPC. All these questions are left open to the trial court to consider and adjudge them when the occasion arises. It is again made clear that if a photostat copy of the copy of an original document is permitted to be tendered in evidence by the court, it does not mean that the genuineness or the legality of the document stands proved. The fact is that the marking of an exhibit on such document leads the court merely to read that document in evidence, but its legality, admissibility and relevancy shall be adjudged by the court only when the case is finally decided. 12. The fact is that the marking of an exhibit on such document leads the court merely to read that document in evidence, but its legality, admissibility and relevancy shall be adjudged by the court only when the case is finally decided. 12. The upshot of the above discussion is that a photo-stat copy of a carbon copy made from the original by mechanical process is admissible in evidence, provided that it is compared with the carbon copy within the meaning of secondary evidence, as defined under Section 63 of the Indian Evidence Act, but the legality, admissibility and relevancy of the said document may be adjudged by the court only when the case is finally decided. 13. For the reasons stated above, the criminal misc. petition filed under Section 482 of CrPC by the petitioner being bereft of any merit deserves to be dismissed, which stands dismissed accordingly. 14. Consequent upon the dismissal of criminal misc. petition, the stay application, filed herewith, does not survive and that also stands dismissed. 15. However, the learned trial court is expected to adjudge the legality, admissibility and relevancy of the document in question, in accordance with the provisions of Indian Evidence Act, at the stage of deciding the case finally. Petitions dismissed.