JUDGMENT R.B.DEO - Heard Mr. Masood Sharif, the learned counsel for the applicant and Mr. B.N. Mohta, the learned counsel for non-applicants 1 and 2. 2. The applicant is the complainant in Summary Criminal Case 24928 of 2011 instituted under section 138 of the Negotiable Instruments Act, 1881, in which the non-applicants are arraigned as accused. 3. The applicant, who shall be referred to as the complainant hereinafter, is aggrieved by the order dated 16.9.2016 whereby the learned Magistrate rejected the application Exh. 58 preferred by the complainant seeking permission to adduce secondary evidence. 4. Few facts may be noted. 4.1. The complainant and the accused went to trial. The complainant filed an affidavit in lieu of oral examination-in-chief of Mr. Sunil Jamankar (PW 1) in addition to several documents. 4.2. During the course of the examination-in-chief of Mr. Sunil Jamankar, the learned counsel for the accused raised certain objections to the admissibility of the documents. 4.3. The accused moved an application Exh. 45 calling upon the learned Magistrate to decide the objections. The said application Exh. 45 was rejected by the learned Magistrate, who inter alia observed that mere marking as exhibits do not make the documents admissible unless the documents are proved in accordance with the provisions of the Indian Evidence Act. 4.4. The accused approached this Court in Criminal Application (APL) 80/2014 which came to be allowed vide judgment dated 30.1.2015. 4.5. The operative part of the judgment dated 30.1.2015 reads thus: "The order passed on 26.12.2013 below Exh. 45 is hereby quashed and set aside. The trial court is directed to decide the application (Exh. 45) afresh in the light of the observations made here in above. The parties to appear before the trial Court on the date already fixed in the matter. Liberty is given to the complainant to lead its further examination-in-chief, if required. Application is disposed of accordingly". 4.6. The learned Magistrate decided application Exh. 45 afresh vide order dated 17.8.2015 and upheld the objections to the exhibiting of the documents, inter alia on the ground that Mr. Sunil Jamankar has not proved his authority to depose. 4.7. In view of the observations of the learned Magistrate, the complainant preferred application Exh. 58 seeking permission to adduce secondary evidence. Paragraphs 5, 6 and 7 of the application read thus: "5. Sunil Jamankar has not proved his authority to depose. 4.7. In view of the observations of the learned Magistrate, the complainant preferred application Exh. 58 seeking permission to adduce secondary evidence. Paragraphs 5, 6 and 7 of the application read thus: "5. It may incidentally be stated that the original minutes book of the complainant since incorporation, incorporating the board meeting, were required to be submitted by the complainant to the CBI, New Delhi, in connection with the ongoing investigation being carried out by the CBI with respect to the allotment of the Coal Blocks. The said Original Minutes Book submitted to the CBI also contains the board resolution concerning the instant proceeding, the certified extracts of which are already placed on record and marked exhibits. 6. It is submitted that the original of the minutes book containing the resolution in question is submitted by the complainant to the CBI. The complainant has placed on record the document containing the acknowledgment dated 22.5.2015 with respect to the receipt of the original documents including the Original Minutes Book of complainant since incorporation, by the CBI. It is submitted that the complainant had tried its level best to secure back the original minutes book of the complainant company from the CBI. However, in view of the pending investigation by the CBI with respect to the allotment of Coal Blocks, which has commenced pursuant to the directions of the Hon'ble Apex Court, the complainant is unable to secure back the original minutes book from the CBI. 7. It is submitted that in view of the said development, the complainant proposes to lead secondary evidence in relation to the original documents which are presently in the custody of the CBI which documents also includes the Original Minutes Book containing resolution passed by the complainant with respect to the subject matter of the instant proceeding. The complainant is unable to place on record the original documents for the reasons stated above and the same is beyond the control of the complainant. The complainant is unable to produce the originals on record, for the reasons stated hereinabove and is relying upon the office copies/the certified extract of the board resolutions filed on record by the complainant. The complainant intends to lead secondary evidence in relation to the documents placed on record by it". 4.8. The complainant is unable to produce the originals on record, for the reasons stated hereinabove and is relying upon the office copies/the certified extract of the board resolutions filed on record by the complainant. The complainant intends to lead secondary evidence in relation to the documents placed on record by it". 4.8. The application to adduce secondary evidence was strongly opposed by the accused, who contended that the reasons pleaded do not satisfy the parameters of section 65 of the Indian Evidence Act and that no case for grant of permission to adduce secondary evidence is made out. 4.9. The learned Magistrate dismissed the application for adducing secondary evidence with a cryptic order which reads thus: "Perused the application and say filed thereon. Heard both the learned advocate at length. The present application is filed by the complainant to lead secondary evidence on the Board Resolution dt. 30.9.2011, 6.2.16 which are already exhibited. The objections to exhibit them also decided i.e. Exh. 45 by my learned predecessor. The objection taken by the learned advocate for the accused is on record. Considering the same it is not justifiable to allow the application as the application to lead secondary evidence is made thereafter i.e. recording the objections by my learned predecessor. Accordingly I do not found substance in the application. Hence the application is rejected". 5. The order dated 16.9.2016 reproduced supra makes a most unsatisfactory reading. The learned Magistrate failed to appreciate that while directing that the learned Magistrate consider Exh. 45 afresh, this Court permitted the complainant to adduce further evidence. In any event, that the objections to admissibility of documents are upheld cannot be a ground to reject the application seeking permission to adduce secondary evidence. Au contraire, it is precisely because the objections to exhibiting the documents are uphold inter alia on the ground that Mr. Sunil Jamankar did not have the authority to depose, that the complainant sought permission to adduce secondary evidence. 6. The learned counsel for the accused Mr. B.N. Mohta is right in the submission that unless the foundational facts as would bring into play the contingencies envisaged by section 65(a) to (g) are established, it would not be permissible to adduce secondary evidence. The learned counsel Mr. Masood Sharif fairly has no quarrel with the said submission. However, Mr. 6. The learned counsel for the accused Mr. B.N. Mohta is right in the submission that unless the foundational facts as would bring into play the contingencies envisaged by section 65(a) to (g) are established, it would not be permissible to adduce secondary evidence. The learned counsel Mr. Masood Sharif fairly has no quarrel with the said submission. However, Mr. Masood Sharif would submit that after the evidence is adduced, it would always be open for the learned Magistrate to ascertain whether the foundational facts as would entitle the complainant to adduce secondary evidence are brought on record satisfactorily, and that the complainant cannot be prevented from adducing evidence and satisfying the Court of the existence of the foundational facts. 7. In my considered view, it would not be necessary to inquire into the prima facie merits of the justification pleaded in support of the application seeking permission to adduce secondary evidence. Whether the complainant is in a position to demonstrate that the conditions envisaged by section 65 do exist, is a question of fact which the Magistrate may address after the conclusion of the evidence. Every contention of the accused, particularly, the contention that the foundational facts as would warrant bringing on record secondary evidence do not exist, can be kept expressly open for the learned Magistrate to decide. 8. In the light of the discussion supra, the order impugned is quashed. 9. The learned Magistrate is directed to permit the complainant to adduce evidence, which shall be composite. 10. Every contention of the accused qua the entitlement to adduce secondary evidence is kept expressly open. 11. The learned Magistrate shall decide the objection to the admissibility of the documents inter alia the objection to the entitlement to adduce secondary evidence, at the stage of final hearing. 12. The learned Magistrate shall decide Summary Criminal Case 24928 of 2011, as expeditiously as possible, and in any event, within nine months from the date of production of this judgment.