JUDGMENT : 1. M/s.Nurit Inks (P). Ltd represented by its Managing Director G.Ramachandran is a constituent of the Indian Bank, Mylapore Branch since 1984. On 20.12.1991 Thiru. G.S.Subbaraman as the Chief Manager of Indian Bank, Mylapore Branch purchased a Foreign Cheque bearing No. 79584032 A/c with Union Bank, Switzerland, Zurich for Swizz Franc One Lakh issued by one Ms. Malliga Saravanamuthu payable to NIFE.AB. The cheque was endorsed by the payee to Shri G.Ramachandran of M/s. Nurit Inks (P) Ltd. The proceeds of the cheque was credited into the savings bank account of G.Ramachandran and he had withdrawn the amount subsequently. The cheque so purchased by G.S.Subbaraman and encashed by Ramachandran returned unhonoured on 08.01.1992 for the reason cheque blocked. A sum of Rs.18,63,932/- being the FBP liability was reversed on 14.01.1992. Later, Shri N.Kumar, nephew of G.Ramachandran remitted Rs.12 lakhs on 23.1.1992, Rs.5 lakhs on 24.1.1992 and Rs.2 lakhs on 25.01.1992 totally a sum of Rs.19 lakhs towards this liability and the same was credited into the account of Ramachandran on 04.02.1992 and adjusted towards the PBP liability and interest. 2. Again, on 05.02.1992, G.S.Subbaraman purchased another cheque bearing No. 79584035 issued by Ms. Malliga Saravanamuthu in favour of N.Kumar for a sum of 1 lakh US Dollars in the A/c of Union Bank, Switzerland, Zurich. On the same day, i.e., 05.02.1992, Rs.20 lakhs from the proceeds of the cheque purchased was credited into the account of N.Kumar and remaining balance amount, Rs.5,45,652/- was used to create a short term Fixed Deposit for 46 days in the name of N.Kumar. On 07.02.1992, against the above said short term deposit, loan of Rs.4,09,000/- was sanctioned to N.Kumar and credited into the account of M/s. Nurit Inks (P) Ltd, by the Senior Manager, Subbaraman. 3. The cheque so purchased on presentation for collection, returned on 19.02.1992 with endorsement 'A/c closed'. The cheque was represented on 30.03.1992. Once again the cheque got bounced on 09.04.1992 for the very same reason. A sum of Rs.30,30,303/- was reversed into unpaid account on 02.07.1992, after lapse of 3 months. To secure the foreign Bill Purchase (FBP) liability, the title deed of the house and the building of one Chandrakanthamma situated at Mahalakshmi Street, T.Nagar, Chennai was given to create the equitable mortgage on 07.02.1992. 4. A sum of Rs.30,30,303/- was reversed into unpaid account on 02.07.1992, after lapse of 3 months. To secure the foreign Bill Purchase (FBP) liability, the title deed of the house and the building of one Chandrakanthamma situated at Mahalakshmi Street, T.Nagar, Chennai was given to create the equitable mortgage on 07.02.1992. 4. As per the instruction of AGM, Mr.Raveendiran, Chief Manager in the Regional Office, Madras South inspected the Mylapore Branch and verified the transaction relating to the foreign Bill Purchase presented by Ramachandran and N.Kumar. He reported several irregularities in the two cheques purchased by Subbaraman. The irregularities includes purchase of bills exceeding the limit, non intimation to the higher authorities, discounting the cheques to the customers who did not enjoy the foreign bill purchase facility, delay in reversing the unpaid money, creating equitable mortgage of the property without the consent of the owner, anti-dating the Equitable Mortgage in the EM register. 5. Meanwhile, Tmt.Chandrakanthamma gave a written complaint to the Chairman cum Managing Director of Indian Bank on 08.09.1992 alleging that the title deed of her property was obtained from her by one Ramalingam@M.R.Lingam along with signed papers on false promise and misrepresentation. Later misused to create equitable mortgage for the loan sanctioned to M/s.Nurit Inks(P)Ltd., in connivance with bank officials. 6. After giving opportunity to the bank officials involved in the above said transactions, being primafacie satisfied that Bank officials in connivance with some private individuals had committed offence of cheating, criminal breach of trust, fabrication of accounts and criminal misconduct pursuance of criminal conspiracy, criminal complaint was lodged by the Chief Officer Vigilance attached to Indian Bank, to the Superintendent of Police, CBI, ACB/MAS on 31.05.1993. Same was taken up for investigation and final report filed against (1). Subbaraman, Chief Manager Indian Bank, Mylapore Branch, (2). Mr.R.Venkatesan, Manager, Indian Bank, Mylapore Branch, (3). Tmt. Geetha Officer, Indian Bank, Mylapore Branch, (4). Mr.G.Ramachandran Managing Director of M/s Nurit Ink (P) Ltd, (5) N.Kumar and (6) M.R.Ramalingam. 7. The trial court took cognizance of the complaint, framed charges against the above named accused and tried them for offences under sections 120-B, 420, 477 A of IPC and 13(2) r/w 13(2) of Prevention of Corruption Act, 1988. 8. To prove the guilt of the accused persons, the prosecution examined 16 witnesses, marked 140 exhibits. In defence 11 exhibits were marked. 8. To prove the guilt of the accused persons, the prosecution examined 16 witnesses, marked 140 exhibits. In defence 11 exhibits were marked. After trial, the court below held them guilty and sentenced them as under: Rank of the Accused Conviction under Section Sentence imposed by the Trial Court A1 1. Under Section 120-B r/w 420, 477 A IPC and 13(2) r/w 13(1) (d) of PC. Act2. under Section 13(2) r/w 13(1)(d) of PC. Act 1. To undergo 1 year R.I and to pay a fine of Rs.10,000/- in default 3 months S.I2. To undergo 1 year R.I (2 counts) and to pay a fine of Rs.10,000/-each, in default 3 months S.I. Total Rs.30,000/- A2 Under section 477 A IPC To pay a fine of Rs.20,000/- in default 3 months S.I A3 Under section 477 A IPC To pay a fine of Rs.5,000/-, in default 3 months S.I A4 1. Under section 120-B r/w 420, 477 A IPC and 13(2) r/w 13(1)(d) of PC. Act 2. Under section 109 IPC r/w 13(2) r/w 13(1)(d) of PC. Act 1. To undergo 1 year R.I and to pay a fine of Rs.10,000/-, in default 3 months S.I2. To undergo 1 year R.I and to pay a fine of Rs.20,000/-, in default to undergo 3 months S.I. Total fine Rs.30,000/- A5 1. Under Section 120-B. 420, 477 A IPC and 13(2) r/w 13(1)(d) of PC. Act 2. Under section 109 r/w 13(2) r/w 13(1)(d) of PC. Act 1. To undergo 1 year R. Iand to pay a fine of Rs.10,000/- and in default 3 months S.I2. To undergo 1 year R.I and to pay a fine of Rs.20,000/- in default 3 months S.I. Total fine of Rs.30,000/- A6 1. Under section 120-B, r/w 420, 477A IPC and 13(2) r/w 13(1)(d) of PC. Act 2. Under section 420 IPC 1. To undergo 1 year R.I and to pay a fine of Rs.10,000/- and in default 3 months S.I2. To pay a fine of Rs.20,000/- in default to undergo 3 months S.I. Total fine of Rs.30,000/- Also directed the complainant/CBI to proceed under Criminal Law Amendment Act, 1944 to recover the amount due to the bank from A-1, A-4 to A-6. 9. Aggrieved by the judgment of conviction and sentence and the direction to CBI to proceed under Criminal Law Amendment Act. A-1, A-4 to A-6 have preferred appeals. 9. Aggrieved by the judgment of conviction and sentence and the direction to CBI to proceed under Criminal Law Amendment Act. A-1, A-4 to A-6 have preferred appeals. Pending appeal A-4 Ramachandran died on 17.12.2011. Memo filed to the effect and same recorded. Hence appeal Crl.A.No.448 of 2010 is abated. 10. The appeals filed by the respective accused are Crl.A.No.445 of 2010 - Appellant Thiru. Subbaraman (A-1); Crl.A.No.438 of 2010-Appellant Thiru. N. Kumar (A-5) and Crl.A.No.479 of 2010 - Appellant Thiru. N. Ramalingam (A-6). For the sake of convenience, the appellants are referred by their respective ranking before the trial court. 11. The learned counsels appearing for the appellants would submit that the trial Court judgment is liable to be set aside for multiple reasons. Primary attack on the legality of the trial court judgment is on admitting the photocopies of the documents in spite of objection and without any justification on the part of the prosecution for not producing the primary documents. Further, admission of photocopies of documents which are entries found in banker' book without certificate by the competent authority of the bank renders it in-admissible. Inspite of objection raised by the defence while marking those photocopies on the ground that it is against the Bankers Book Evidence Act, the trial court has taken those in-admissible documents as exhibits. Further, relying upon the inadmissible documents, the trial court had held the appellants guilty of the charges. The reasoning given by the trial court to over-rule the objection for marking the secondary evidence without satisfying the conditions of section 65 of Evidence Act is contrary to law and for that reason itself the trial court judgment is liable to be set aside. 12. Further, the learned Senior Counsel appearing for the appellant in Crl.A.No.445 of 2010 who was the Chief Manager, would submit that the power and limit of the Manager to purchase foreign bills is not restricted to Rs.3.5 lakhs as spoken by the witnesses for prosecution. The limit prescribed is only of advisory in nature, based on the credibility of the account holder, the Branch head can exceed the limit prescribed and intimate the same to the higher authorities. In this case, M/s. Nurit Inks (P) Ltd being a valued customer who has brought substantial foreign deposits was extended the facility of discounting the bills. In his explanation dated 28.08.1992 and 19.10.1992 marked as Ex.P-6, Ex.P-9 respectively. In this case, M/s. Nurit Inks (P) Ltd being a valued customer who has brought substantial foreign deposits was extended the facility of discounting the bills. In his explanation dated 28.08.1992 and 19.10.1992 marked as Ex.P-6, Ex.P-9 respectively. The appellant has given the reasons for the purchase of foreign bills. The trial court instead of taking it as plausible explanation, had taken it as admission of crime. 13. The equitable mortgage of the property offered by Tmt. Chandrakanthamma is a genuine and valid. PW-5 who conducted enquiry on the complaint of Chandrakanthamma has submitted his report Ex.P-96 to the CMD. Where in, he has categorically said that the allegation of Chandrakanthamma that her signatures were obtained in blank papers misrepresenting that it is for Indian Overseas Bank is incorrect, since she has signed in the printed format of Indian Bank. She being a literate, her complaint is only an after thought to save her property from being proceed. The interested PW-11, is an interested witness. She is not the competent witness to speak about the genuineness or otherwise of the documents executed by Chandrakanthamma. The trial had given undue reliance upon the sequences of the entry made in the equitable mortgage register marked as Ex P-131. It is not a contemporaneous document and it is maintained for internal reference and change in sequence in recording the deposit of title deed, is not so material to disbelief the creation of equitable mortgage. 14. Further, the plea in the plaint (Ex.D-1) filed by the Bank in the civil suit for recovery of money against the borrower and others is contrary to the allegation in the criminal complaint. In the plaint the bank admit the creation of equitable mortgage and its validity, whereas, in the criminal prosecution it is contended that the Equitable mortgage is not a valid mortgage and it was anti-dated by fabrication of records. This inconsistent plea by the bank clearly exposes the lacunae in the prosecution which was not taken note by the trial court. 15. The two cheques of foreign origin was purchased by A-1 on the instruction of Zonal Manager. The practise of oral instructions from higher authorities to purchase bills was in vogue at the relevant point of time. This fact is admitted by the prosecution witnesses also. 15. The two cheques of foreign origin was purchased by A-1 on the instruction of Zonal Manager. The practise of oral instructions from higher authorities to purchase bills was in vogue at the relevant point of time. This fact is admitted by the prosecution witnesses also. Before framing charges, to prove his innocense, the Fund Book maintained by the bank was sought to be produced by A-1. That petition was not entertained by the court below. During the trial before examination of witnesses, applications for production of funds book for the current account, over draft and foreign bills purchase for the period November 1991 to September 1992 along with monthly audit report, the delivery book was sought by the appellant but not produced by the prosecution stating not available with them. By withholding these documents the prosecution has deprived the opportunity to establish that he had purchased those two cheques as per oral instruction of the Zonal Manager and same was intimated to the superior officer. Further, the returned cheque was received by his subordinate V.S.Narayanan (PW-13) who kept in his custody but not brought to his knowledge. 16. Per contra, the Special Public Prosecutor would submit that the purchase of foreign bills beyond the permissible limit is a fact admitted by A-1. The foreign bill purchase facility was not provided to Ramachandran of M/s.Nurit Ink (P) Ltd or N.Kumar, however A-1 in abuse of his official position purchased the first cheque dated 13.12.1991 which was drawn by Ms. Malliga Saravanamuthu @ Anitha in favour of third party, got endorsed in favour of G.Ramachandran (A-4) and the second cheque (Ex.P-41) dated 27.1.1992 drawn in favour of N.Kumar without obtaining permission of or information to the higher official. That apart, before the cheque Ex.P.127 could be realised a sum of Rs.18,3,932/- credited into the bank account of Ramachandran, which he withdrew immediately. Likewise, before the second cheque could be realised, a sum of Rs.25,77,320/- was debited into the account of N.Kumar (A-5) form which he transferred a sum of Rs.20 lakhs into the account of Ramachandran (A-4) and created a short term deposit for Rs.5,45,652/- in the name of N.Kumar (A-5). From out of this FD, loan of Rs.4,09,000/-granted to A-5 by A-1. 17. Both the cheques purchased by A-1 against the banking norms, were dishonoured. From out of this FD, loan of Rs.4,09,000/-granted to A-5 by A-1. 17. Both the cheques purchased by A-1 against the banking norms, were dishonoured. While a sum of Rs.19 lakhs was later paid by A-5 in the name of Malliga Saravanamuthu to clear the debit entry occurred due to the purchase of the first cheque (Ex.P-127). The debit occurred due to the purchase of second cheque (Ex.P-41) was not repaid till date. The bank could later realise only a part of the debt by adjusting the FD's and for the balance amount had initiated suit for recovery of money. 18. While none of these averments are denied by the appellants, the only contention raised by appellants is that there was no intention to cheat at inception, there was no meeting of mind between them to commit any illegal act or legal act through illegal means to constitute criminal conspiracy. However, the prosecution had proved beyond doubt that from the inception of purchasing the foreign bills in excess of Rs.3.5 lakhs which is the permissible limit for A1, allowing A-4 and A-5 to withdraw the money immediately after the same being credited into their account before realisation of those cheques, non intimation of return of cheque purchased, belated debit entry put together cumulatively proves the ill-design of the accused persons to do the illegal act by illegal means and thereby cheating of the bank a tune of Rs.44,41,252/-. 19. The entry in the page No 46 (Ex.P.136) of the Equitable Mortgage Register (Ex.P.131) on the face of it reveals interpolation and fabrication of record. To substantiate the fabrication, Tmt. Chandrakanthamma who is the mortgagor had also denied the execution of equitable mortgage by deposit of title deed, to secure the loan availed by Ramachandran. Therefore the plea of the appellants that the said entries in the EM register marked as Ex.P.136 is genuine does not hold water, more particularly, when it is proved beyond doubt by the prosecution that on 27.2.1992, the day on which the alleged deposit of deed was made in the presence of A-2(Venkatesan), he was not in Chennai but was at Mumbai in connection with RBI training. Therefore, the facts elucidated through the witnesses and the facts admitted by the accused persons suffice to hold them guilty. 20. Heard the counsels for the appellants and the Special Public Prosecutor representing the CBI. Therefore, the facts elucidated through the witnesses and the facts admitted by the accused persons suffice to hold them guilty. 20. Heard the counsels for the appellants and the Special Public Prosecutor representing the CBI. Points for consideration Whether the prosecution case discloses any criminal intention to cheat the Bank and whether the trial court erred in admitting secondary evidence of documents not properly certified under the Banker's Book Evidence Act and whether reliance of those documents had resulted in miscarriage of justice.? 21. The criminal law was set into motion pursuance to the complaint Ex P-2 dated 31.05.1993 given by (PW-2) P.Gopalakrishnan, Vigilance department of Indian Bank. In his chief examination PW.2 admits the basis of his complaint is the concurrent audit report done by K.Ramakrish & Co., Chartered Accountant. The said audit report dated 18.07.1992 is marked as Ex P-3. marking of this document was objected by the defence being a photocopy and same has been marked with objection. On receipt of the concurrent audit report, the General Manager (I&V) had deputed Shri.V.Krishnamurthy of Inspection department to conduct vigilance inspection of the branch. Accordingly V.Krishnamurthy has caused inspection and had submitted his report dated 23.07.1992. The report is signed by Krishnamurthy and one Sashidar, both not examined and the report is marked with objection as Ex.P-4, is again a photocopy. To the show cause notice, A-1, has given his explanation vide Ex P-6. Meanwhile, the bank has received a complaint from Smt. Chandrakanthamma on 12.09.1992 alleging, by misrepresentation the title deed of her house was obtained by A-6 and misused to create equitable mortgage without her consent and knowledge. For the said allegation, explanation has been sought from A-1 and he has given his explanation (Ex.P-9) on 19.10.1992. 22. Based on the complaint given by Smt.Chandrakanthamma the bank has investigating the matter by deputing PW.5 Ravindeeran. He has gone in detail about the purchase of foreign bills and discounting the same, in the light of the allegation made by Chandrakanthamma regarding creation of equitable mortgage over her house property. The said report is marked as Ex.P.10(= Ex P-96). In this report, PW-5 has categorically said that, the complaint of Chandrakanthamma alleging her signatures were obtained in blank white papers is false. She has signed in the approved printed format of the bank having the India Bank logo and the Bank name at the top. The said report is marked as Ex.P.10(= Ex P-96). In this report, PW-5 has categorically said that, the complaint of Chandrakanthamma alleging her signatures were obtained in blank white papers is false. She has signed in the approved printed format of the bank having the India Bank logo and the Bank name at the top. Further, before creating equitable mortgage, the bank has obtained legal opinion from the penal lawyer Mr.T.V.Ravikumar Advocate and he has opined that Chandrakanthamma have valid and marketable title over the property and she can create a valid equitable mortgage. 23. The equitable mortgage register which is marked as Ex.P.131 and the relevant entry of the equitable mortgage in respect of the property of Chandrakanthamma which is found in page 46 of the said register indicates the title deed was deposited on 27.02.1992. It has been deposited by C.K.Chandrakanthamma in the presence of R.Venkatesan-A-2 (Bank Official). The Trial Court taking note of the entries found in the page 45 which is dated 16.04.1992 and the entries found in the page 47 which is dated 08.05.1992, has come to a conclusion that the disputed entry found in page 46 is anti-dated, therefore, it is an interpolation inserted in between, which amounts to falsification of the documents. To verify whether such a conclusion is correct, this Court gone through the entries made in Ex.P.131(the equitable mortgage register) and it is found that for the reason best known, several pages in between are left unwritten. The entries so made are not essentially in seriatim as per dates. for instance, while the entry in page 27 is in respect of the deposit of title deed in the name of Mrs. K.Hema on 06.09.1991 and the entry in page 28 is in respect of deposit of title deed in the name of K.Subaramaian on 06.12.1991, the entry found in next page 29 is dated 14.11.1991 in respect of deposit of title deed in the name of B.Ramakrishnaprasad. This court is bound to point out that when the bank internal Vigilance itself has found that Chandrakanthamma has knowingly signed the documents to create equitable mortgage and same has been recorded in the equitable mortgage register. Just because the jumble in the sequence of dates found in the entries, it cannot be termed as false entry. It is a fact that original title deed of Chandrakanthamma had been given to the Indian bank. Just because the jumble in the sequence of dates found in the entries, it cannot be termed as false entry. It is a fact that original title deed of Chandrakanthamma had been given to the Indian bank. Based on the title deed, legal opinion has been obtained and for internal purpose the creation of equitable mortgage has been recorded in Ex.P.131 register and the relevant entry is marked as Ex.P.136. 24. No doubt, the prosecution has established through witnesses that (A2) Venkatesan was not in Chennai on 27.02.1992 and he was on training at Mumbai. But it does by itself make the entries in the equitable mortgage a false entry. Venkatesan (A2) during the relevant point of time had been serving as Manager of the Branch and his name has been written in the register as the bank officer who was present at the time of depositing the title deed. Except reference of his name against the said printed column, there is no material to arrive at a conclusion that the entire entry found in Page 46 which is marked as Ex.P.136 in the equitable mortgage register (Ex.P.131) is a false entry. Therefore the charges against the appellants and other accused that the creation of equitable mortgage of the property in the name of Chandrakanthamma is a fabricated event is not correct. 25. To make out the case of cheating, the ingredient of deception at the inception is required. As far as this case is concerned, except the excessive exercise of discretion by extending the facility of discounting foreign bills on a bonafide belief that they are genuine transaction, this Court could not find out any element of culpability on the part of A1 who in his explanations which is marked as Ex.P.6 and Ex.P.9 has placed before his higher officials how and under what circumstances he extended the facility to the M/s.Nurit Inks (P).Ltd, Managed by A4 and A5. 26. Yet another charge against A1 is delay in reversing the returned cheque value of Rs.1 lakh US Dollars purchased by A-1 and discounted in favour of A5. 26. Yet another charge against A1 is delay in reversing the returned cheque value of Rs.1 lakh US Dollars purchased by A-1 and discounted in favour of A5. In his explanation letter Ex P-6, A1 had recorded that Ramachandran A4 who had been a long time customer had canvassed for the branch foreign currency deposits to tune of 60,000/- US Dollars and considering his financial credential, he exercise his discretion to purchase cheque of 1 lakh US dollars and credited the proceeds in the SBI account of N.Kumar (A5). Having realized that the cheque was returned unpaid with the reason of A/c closed immediately additional collateral security (property of Chandrakanthamma) had been obtained after getting the legal opinion. Further, Ramachandran (A4) and N.Kumar (A5) represented that the cheque had been returned by mistake and requested to represent the same. So, he (A1) again represented the cheque without reversing the entry made in foreign bill purchase, hoping that this time the cheque will be honoured, which did not happened. He has admitted that, in the anxiety to get foreign deposits, he had purchased the cheque for an amount in excess of his powers, without getting permission of the higher authority. In view of his action taken by securing adequate security for the recovery of money, he has sought for condonation of his lapse. However, Ex.D.1 the plaint copy reveals that M/s.Nurit Inks (P). Ltd., Ramachandran (A5) and N.Kumar (A6) has not repaid the loan and for recovery of the same proceeding has been initiated. 27. The learned counsel appearing for the first accused also pointed out that when application to produce documents was filed during trial, the prosecution failed to produce the following documents which are very vital to prove his innocense. (i). File relating to the permission given by the Zonal office, Indian Bank to Nutrit Ink Co, to open an account with Bank of Baroda. (ii). FBP Register for the period November 1991 to September 1992. (iii). Allocation Register from November 91 to September 1992. (iv). Funds Book for current account, over draft and FBP for the period November 1991 to September 1992. Monthly Audit Report (AUM) for the period November 1991 to June 1992. 28. The above documents were not produced by the prosecution. Non-production of these documents by the prosecution has caused grave prejudice to the accused. (iv). Funds Book for current account, over draft and FBP for the period November 1991 to September 1992. Monthly Audit Report (AUM) for the period November 1991 to June 1992. 28. The above documents were not produced by the prosecution. Non-production of these documents by the prosecution has caused grave prejudice to the accused. Further, it is contended by the learned counsel for the first accused that that if the fund book of the Current Account, over draft facility and foreign bills for the period of November 1991 to September 1992 had been produced, through these documents he could have clearly proved that the purchase of foreign bills beyond the limit of Rs.3.5 lakhs is within the discretion of the Chief Manager and normally foreign bills purchase in excess of the said limit given post ratification by the Regional Office. This will be reflected in the fund book which has been withheld by the prosecution. 29. This contention requires serious consideration in view of the fact that the monthly Audit Report has been forwarded to Regional Office regularly. In case of any serious violation in the action of A1 it would have been noticed by the audit and would have been reflected in the monthly Audit. 30. On the part of A-4 and A-5, the Learned counsel content that they had no intention of cheating the bank at any point of time. When the cheque of Ms.Malliga Saravanamuthu @Anitha was presented, they bonafidely believed it will be honoured since it was their commission towards canvassing deposits. Only later they realised that they were duped by the said Malliga Saravanamuthu. Therefore, they went to Malaysia embassy along with PW-12 (K.T.Solaiappan) and lodged complaint. They came to know that, the said Malliga Saravanamuthu had cheated 300 to 400 people. These facts are deposed by the prosecution witness PW-12. So they cannot be held criminally liable for default in payment of due which is purely a civil action. The bank having resort to recovery of due through civil suit on a different set of facts, the prosecution with facts contra to the plaint pleading is not sustainable. 31. Broadly on assessing the facts as discussed above, foreign bills purchase without permission, non reporting of return of the cheques with endorsement 'account closed' are all obviously violation of the Banking Rules. The violation may be in pursuance to any criminal intention also. 31. Broadly on assessing the facts as discussed above, foreign bills purchase without permission, non reporting of return of the cheques with endorsement 'account closed' are all obviously violation of the Banking Rules. The violation may be in pursuance to any criminal intention also. Likewise, the discount of foreign cheque, withdrawal of the amount immediately, non payment of the due arising out of dishonour of the cheque all makes to hold A-4 and A-5 guilty of the charges. However, this court is unable to venture further in this case, based on the documents which are mostly the photocopies of the entries in the Bankers Book, Reports and the communication between the parties, marked without satisfy the basic conditions laid down in the Law of Evidence for admitting secondary evidence. The photocopies which are marked as exhibits where objected by the defence at the inception during the introduction itself and same had been taken on file with objection. 32. The photocopies of the documents which had been admitted in evidence on objection are copies mechanically taken from the original. The prosecution has not disclosed through its witnesses why the originals were not placed before the Court, where the original documents are and under whose custody it is. To introduce a secondary evidence the first and foremost requirement is that the person who rely upon the secondary evidence of a document should first disclose the where about of the original and reason to introduce the secondary evidence. In this case nothing of such sort been done by the prosecution. 33. Chapter-V of the Indian Evidence Act deals with Documentary Evidence. Section 61 of the Act provides that contents of documents may be proved either by primary or by secondary evidence. Section 62 defines primary evidence as meaning the document itself produced for inspection of the Court. Section 63 defines Secondary evidence as meaning and including among others certified copies given under the provisions of the Evidence Act. Section 64 provides that documents must be proved by primary evidence except in the cases mentioned in the subsequent sections. Section 65 deals with cases in which secondary evidence relating to documents may be given. 34. For easy reference the relevant sections of Indian Evidence Act and Bankers Book Evidence Act are extracted below; before proceeding further. Section 63 of the Indian Evidence Act 1872. 63. Section 65 deals with cases in which secondary evidence relating to documents may be given. 34. For easy reference the relevant sections of Indian Evidence Act and Bankers Book Evidence Act are extracted below; before proceeding further. Section 63 of the Indian Evidence Act 1872. 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 insure 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. Illustrations (a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. (b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. (c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original. (d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original. (d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original. Section 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 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 representative 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 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 cases (a), (c) and (d), any secondary evidence of the contents of the document 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. Bankers' Books Evidence Act, 1891 Section: 2 Definitions. 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. Bankers' Books Evidence Act, 1891 Section: 2 Definitions. In this Act, unless there is something repugnant in the subject or context, (3) bankers' books include ledgers, day-books, cash-books, account-books and all other records used in the ordinary business of the bank, whether these records are kept in written form or stored in a micro film, magnetic tape or in any other form of mechanical or electronic data retrieval mechanism, either onsite or at any offsite location including a back-up or disaster recovery site of both; (8) certified copy means when the books of a bank, (a) are maintained in written form, a copy of any entry in such books together with a certificate written at the foot of such copy that it is a true copy of such entry, that such entry is contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business and that such book is still in the custody of the bank, and where the copy was obtained by a mechanical or other process which in itself ensured the accuracy of the copy, a further certificate to that effect, but where the book from which such copy was prepared has been destroyed in the usual course of the bank's business after the date on which the copy had been so prepared, a further certificate to that effect, each such certificate being dated and subscribed by the principal accountant or manager of the bank with his name and official title; and (b) consist of printouts of data stored in a floppy, disc, tape or any other electro-magnetic data storage device, a printout of such entry or a copy of such printout together with such statements certified in accordance with the provisions of section 2A.] [(c) a printout of any entry in the books of a bank stored in a micro film, magnetic tape or in any other form of mechanical or electronic data retrieval mechanism obtained by a mechanical or other process which in itself ensures the accuracy of such printout as a copy of such entry and such printout contains the certificate in accordance with the provisions of section 2A.] Section 4 of the Bankers' Bokks Evidence Act, 1891 4. Mode of proof of entries in bankers books. Subject to the provisions of this Act, a certified copy of any entry in a bankers books shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise. 35. In this case, it is very unfortunate to point out that, most of the vital documents such as cheques Ex.P.41 and Ex.P.127 which were alleged to have been purchased by A-1 contrary to banking guidelines, the communications between the Foreign Bank and the Overseas Branch of Indian Bank, the Statement of Bank accounts in which the money had been credited and later withdrawn are not originals but the photocopies. The photocopies which are exhibited are not public documents. They are all communications between parties and accounts maintained by the bank. Therefore, Section 65(e) does not apply. The documents which fall under Section 65(f) should carry certificate as mandated under section 4 of the Banker's book Evidence Act. Though the seal and signature of the Manager on those photocopies mention it as 'certified copy', in fact it does not fall within the meaning of certified copy as referred under Section 65(e) or Section 65(f) of the Evidence Act, nor such certificate found on the exhibits satisfies the mandate of Section 4 of the Banker's book Evidence Act. 36. Normally, any party who wants to prove the content of the document is required to lead evidence by production of the original document before the court through its author. Under section 61, the original document can be presented before the Court through the author, who created the document and it can be proved. In alternate, when the content of the document is attempted to be proved by tendering secondary evidence, such document can be tendered under section 63 read with section 65 of the Evidence Act provided the conditions laid down in these sections are satisfied. Section 63(2), permits, copies can be made from original by mechanical processes which in themselves ensure the accuracy of the copy and copies compared with such copies. Section 63(2), permits, copies can be made from original by mechanical processes which in themselves ensure the accuracy of the copy and copies compared with such copies. But, in this case no witness from the prosecution has deposed that the exhibits Ex.P.3 to Ex.P.8, Ex.P.11 to Ex.P.13, Ex.P.15, Ex.P.18, Ex.P.21, Ex.P.22, Ex.P.42, Ex.P.65, Ex.P.85 to Ex.P.89, Ex.P.95 and Ex.P.98 with 'certified copy' seal are photocopies made from original by mechanical processes and he ensure the accuracy of the copy. In alternate some of the witnesses have admitted that they have not seen the original. 37. In Smt.Rekha Rana & Ors. vs. Smt.Ratnashree Jain, Division Bench of Madhya Pradesh High Court in R.V.Raveendran, Chief Justice and Justice Shantanu Kemkar reported in AIR 2006 MP 107 . after referring judgments of Hon'ble Supreme Court as well as High Courts, including the judgment rendered by Roman Catholic Mission Vs. State Of Madras and Another reported in 1966 AIR 1457. Concluded that when the originals were not produced at any time nor was any foundation laid for the establishment of the right to give secondary evidence, copies of original not admissible in the evidence. Further, Production and marking of a certified copy as secondary evidence of a private document (either a registered document like a sale deed or any unregistered document) is permissible only after laying the foundation for acceptance of secondary evidence under Clause (a), (b) or (c) of Section 65. 38. In H.Siddiqui (D) by LRS vs. A.Ramalingam reported in (2011) 4 SCC 240 as observed that; The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decided the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide Roman Catholice Mission of State of Madras, State of Rajasthan vs. Khemraj, LIC vs. Ram Pal Singh Bisen and M.Chandra vs. M.Thangamuthu) 39. In J.Yashoda vs. K.Shobha Rani reported in (2007) 5 SCC 730 Hon'ble Supreme Court has held that; 7. 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 files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. 8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence. 9. 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 you, 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. 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. 40. As a result, of the above said discussion, this Court has come to the irresistible conclusion that the prosecution has miserably failed to prove the charges against the appellants through the best evidence available with them. Relying upon the photocopies of documents not duly certified in the manner known to law, the prosecution has failed to prove the charges beyond reasonable doubt. Consequently, the Criminal Appeals Nos. 445, 448, 438 & 479 of 2010 are allowed. The Judgment of the Trial Court is liable to be set aside. The bail bond executed if any, shall stand cancelled. Fine amount paid, if any, shall be refunded to the appellants. 41. Before parting, this Court wish to add, atleast in future both the prosecution as well as the trial Court shall be careful while receiving photocopies of the documents. The trial Court should ensure whether the conditions laid in Section 65 of the Evidence Act are fulfilled before receiving the Secondary Evidence. In this Case, right from marking of the Ex.P.1, the defence has objected for marking of photocopy document. Neither the prosecution nor the Court had addressed the objection immediately. This has caused miscarriage of justice. This Court hopes that atleast herein after the Court below be abreast of the legal position in admitting the Secondary evidence, especially the photocopies and act accordingly. This Court also hasten to add, the acquittal in the Criminal prosecution shall have no bearing on the departmental enquiry against A1 or the civil proceedings pending for recovery of money.