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2019 DIGILAW 743 (MP)

SHIVRAJ SINGH YADAV v. PRATEEK JAIN

2019-10-21

RAJEEV KUMAR SHRIVASTAVA

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ORDER : – This petition under section 482 of the Code of Criminal Procedure has been preferred by the applicant against the order dated 19-3-2019 passed by Judicial Magistrate First Class, Gwalior in Case No. 15455/2014 whereby the application under section 65 of the Evidence Act filed by the applicant has been dismissed. 2. The facts leading to filing of present petition are that the applicant filed a private complaint under section 138 of Negotiable Instruments Act before the Court of Judicial Magistrate First Class, Gwalior against the respondent alleging that the respondent had taken the loan of Rs. 2,17,000/- from the applicant and handed over a cheque bearing No. 007165 amounting to Rs. 3,00,000/-. The applicant presented the said cheque in the concerned bank on 21-6-2014 which was returned back on 12-7-2014 as dishonoured due to insufficient balance. A notice dated 2-8-2014 was sent to the respondent by registered post which was duly received by the respondent. 3. During the pendency of the trial, the applicant moved an application under section 65 of the Evidence Act stating therein that when the applicant appeared before the trial Court, then he came to know that he lost the original registry receipt of legal notice and receiving receipt of the same and in spite of his best efforts, the same could not be traced out, hence he sought permission to file the photocopy of the receipts in the Court as secondary evidence. The trial Court vide impugned order dated 19-3-2019 dismissed the aforesaid application preferred by the applicant. Being aggrieved by the impugned order, the applicant has preferred this petition. 4. It was submitted by learned counsel for the applicant that the trial Court has committed illegality and jurisdictional error in dismissing the application filed by the applicant under section 65 of the Evidence Act. Initially, the complaint was registered on the basis of original registry receipt and receiving receipt of the legal notice but thereafter the said documents were misplaced and in spite of his best efforts, the same could not be traced. Therefore, the Court below should have taken the photocopy of the said documents on record as secondary evidence. Hence, the impugned order passed by the trial Court deserves to be set aside. 5. Therefore, the Court below should have taken the photocopy of the said documents on record as secondary evidence. Hence, the impugned order passed by the trial Court deserves to be set aside. 5. To the contrary, learned counsel for the respondent had submitted that no explanation for losing the original registry receipt and receiving receipt of the legal notice was given by the applicant, therefore, no interference in the impugned order is required. 6. I have considered rival contentions of the parties and perused the available record. 7. In the present case, looking to the controversy, following question emerges for consideration : – 1. Whether, the photocopy of any relevant document whose original copy is lost, can be admitted as a secondary evidence? If yes, then under what circumstances, such permission can be given : 8. Section 65(c) of the Indian Evidence Act reads as under : – “(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;” 9. Section 63(2) of the Indian Evidence Act reads as under : – “(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;” 10. This Court in the case of Ranchhod Lal vs. Bheru Lal, 2001 (II) MPWN 13 has held that the original diary maintained by the pleader is not traceable and it is lost. As such, the applicant is entitled to lead secondary evidence to prove relevant entries made in the photostat copy of the diary maintained by the pleader. The trial Court has committed illegality in rejecting the prayer of the applicant for permitting him to produce secondary evidence of the photostat copy of the entries. 11. Similarly, in the case of Dr. Harish Chand Pipariya vs. Mukesh Kumar Kushwaha, 2002 (II) MPWN 81 , this Court has observed that it is well settled by the series of judgment of this Court that a photostat copy is covered under section 63 of the Evidence Act under the head “prepared by mechanical process.” 12. In view of the aforesaid legal position, there is no doubt or hesitation to hold that a photostat copy of original document prepared by mechanical process shall be considered as a secondary evidence. In view of the aforesaid legal position, there is no doubt or hesitation to hold that a photostat copy of original document prepared by mechanical process shall be considered as a secondary evidence. It comes within the purview of “secondary evidence” as provided in section 63(2) of Evidence Act. 13. Now the question is, under what circumstances a document in the form of photo-stat copy can be permitted to lead as a secondary evidence in place of original document which is lost. 14. The Supreme Court in the case of J. Yashoda vs. K. Shobha Rani, 2007 5 SCC 730 has held that 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 proved 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. 15. In view of the aforesaid case law, first of all it is must for the party who seeks permission to lead the secondary evidence to prove prima facie that there was an existence of the original and the same has been lost or destroyed and other original copy is also not in existence. Thereafter, the party concern is also required to establish prima facie that the photocopy has been prepared from the relevant original document by mechanical process. In this regard it has to be explained as to what was the circumstances under which the photostate copy was prepared and who was in possession of the original document at the time when photostate copy was prepared, and by whom or under whom direction and presence it was prepared. The party may seek permission with a view to establish prima facie the aforesaid facts and submit an affidavit or other relevant document for satisfaction of the Court and the Court after considering the affidavit or other relevant document on satisfaction may allow the photostate copy of original document as secondary evidence. The party may seek permission with a view to establish prima facie the aforesaid facts and submit an affidavit or other relevant document for satisfaction of the Court and the Court after considering the affidavit or other relevant document on satisfaction may allow the photostate copy of original document as secondary evidence. In absence of aforesaid satisfaction or reasonable suspicion about the genuineness of the photocopy of the original document the Court may disallow the prayer. 16. Here, it is also clear that a photocopy of the original document is not admissible as secondary evidence. It requires comparison with the original copy of the document as provided in section 65 of the Act, as it cannot be treated as a secondary evidence in view of the provision of section 63(2) and Illustration (b) of Evidence Act. 17. In the aforesaid background of the legal position, it is seen that whether in the present case, the applicant is entitled to lead secondary evidence as a photostat copy of the lost original document. On perusal of the record, it appears that the original registry receipt and receiving receipt of the legal notice have been lost and this fact has also been mentioned in the application itself; therefore, so far as requirement of section 65(c) of the Evidence Act is concerned, in this case, the applicant has fulfilled or prima facie established the fact that the original registry receipt and the receiving receipt were lost. In the aforesaid circumstances he should be permitted to lead secondary evidence and in this regard he should be allowed to summon the witnesses or to call the record from the authority i.e. post office. If his prayer is refused then he will not be able to produce relevant evidence before the Court and apparently it would amount to miscarriage of justice. In this regard, order of the learned Lower Court is contrary to law and apparently, illegal, improper and unjustified. 18. In view of the discussion, in the interest of justice, the impugned order dated 19-3-2019 passed by the lower Court is hereby set aside and the applicant is directed to file the photocopy of the receipts in the Court below as secondary evidence subject to payment of Rs. 1,000/- as cost. However, it is made clear that in case he fails to file the documents, this order will automatically stand cancelled. 1,000/- as cost. However, it is made clear that in case he fails to file the documents, this order will automatically stand cancelled. The applicant shall appear before the trial Court along with the certified copy of this order on the next date fixed in the matter. 19. With aforesaid directions, this petition is accordingly disposed of.