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2017 DIGILAW 1633 (RAJ)

Chandra Kumar v. State Of Rajasthan

2017-07-24

PUSHPENDRA SINGH BHATI

body2017
JUDGMENT ORDER Pushpendra Singh Bhati, J. - The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C., 1973 against the order dated 03.06.2017 passed by learned Special Judge (Prevention of Corruption Cases), Udaipur in sessions case No.73/2017 in criminal regular case No.19/2008 pending trial in the court below whereby learned Special Judge dismissed the application filed by the petitioner under section 65 of the Indian Evidence Act for producing documents as secondary evidence. 2. The facts as noticed by this Court are that whether the photo copy of the carbon copy of the original document is admissible under Section 63 read with section 65 of the Indian Evidence Act. 3. Learned counsel for the petitioner has relied upon the judgment of Pappu Singh @ Laxmansingh vs. The State of Rajasthan reported in 2002(1) Cr.L.R. (Raj.) 566 in which the following precedent law has been laid down. "24. As per Section 63 of the Evidence Act, copies of a copy taken out by mechanical process or compared with the original are secondary evidence. 25. In the present case, Ex.P/11 is not a copy, but a photo copy of carbon copy and, therefore, from every point of view, it would be secondary evidence of the original. 26. The Court is aware that generally speaking copy of a copy is not admissible as secondary evidence but here Ex.P/11 is photo copy of carbon copy of the original and the same has been proved by the same person, who has prepared the original. Therefore, Ex.P/11 can be taken out by mechanic process and not only this, it has also been certified as true copy of original carbon copy from office file. Therefore, from every point of view, if Ex.P/11 has been taken on record or exhibited, no question arises that it was wrongly taken into evidence. 27. For the reasons stated above, it is held that from every point of view Ex.P/11, if not treated as primary evidence for the sake of argument, would be covered by the term ''secondary evidence'' and reliance can be placed on it. It further held that PW-11 Dr. Kamlesh has proved the contents of that injury report Ex.P/11." 4. Thus, this Court has already taken the view that if a photo copy of carbon copy is to be considered then it would be considered as secondary evidence of the original. 5. It further held that PW-11 Dr. Kamlesh has proved the contents of that injury report Ex.P/11." 4. Thus, this Court has already taken the view that if a photo copy of carbon copy is to be considered then it would be considered as secondary evidence of the original. 5. Learned counsel for the petitioner states that the original bill in the cash memo is normally not available and it is issued to the customer. 6. Learned Public Prosecutor vehemently opposed the prayer stating that the provisions of Section 65 of the Evidence Act is amply clear and the carbon copy by no means of imagination can will fall within the purview of Section 63 of the Evidence Act. 7. After hearing learned counsel for the parties and perusing the record of the case along with precedent law cited at bar, this Court is of the opinion that though the secondary evidence permits any copy of the original but in such cases where the carbon is retained as original copy, the evidence should be considered as secondary evidence. The Section 63 & 65 of the Evidence Act reads as under: "63. Secondary Evidence.- Secondary evidence means and includes- (1) certified copies given under the provisions hereinafter contained; (2) copies made from the original by mechanical processes 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. 65. 65. Cases in which secondary evidence relating to documents may be given.-Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:- (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 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 against whom it is proved or by his representative-ininterest; (c) when the original has been destroyed or lost or when the party offering evidence of its contents cannot, for any other reason not arsing 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 originals consists 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. In case (a), (c) and (d), any secondary evidence of the contents of the documents is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents." 8. The precedent law cited also categorically lays down that the photo copy of the carbon copy amounts to be secondary evidence of original. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents." 8. The precedent law cited also categorically lays down that the photo copy of the carbon copy amounts to be secondary evidence of original. The learned court below has strictly construed Section 63 & 65 of the Evidence Act but have not considered that in the given facts and circumstances when the original is not retained by the shopkeeper then the carbon copy would be available and has to be treated at par with original in such circumstances where the originals copy are issued to customer and carbon copy is retained by the shopkeeper. Moreover, fact that the copy of carbon copy is admitted as secondary evidence shall not prejudice the case of the prosecution as it is a material fact which has to be brought on record and the petitioner has a right to bring it on record as secondary evidence. 9. The petition is accordingly allowed and the order dated 03.06.2017 passed by learned Special Judge (Prevention of Corruption Cases), Udaipur in sessions case No.73/2017 is quashed and set aside and the application filed by the petitioner under Section 65 of Evidence Act is allowed and the photocopy of carbon copy of medical bill is ordered to be taken on record as secondary evidence.