JUDGMENT 1. Leave granted. CRIMINAL APPEAL NO.628/2022 Heard the appeal finally at the stage of admission by consent of the learned Counsel for the parties. 2. The present appeal is filed being aggrieved by the order dtd. 09/09/2009 in Criminal Case No.1775/2002 passed below Exhibit 1, Exhibit 52 and Exhibit 59 by the Judicial Magistrate, First Class, Yavatmal, thereby dismissing the complaint of respondent no.1 and also the application of appellant to lead secondary evidence and allowing the application of respondent no.1 for dismissal of complaint, thereby respondent no.1 is being acquitted for the offence punishable under Sec. 138 read with Sec. 142 of the Negotiable Instruments Act, 1881. 3. The appellant is a co-operative society registered under the Maharashtra State Co-operative Societies Act, 1960 and 100% shares of appellant society is owned by Government of Maharashtra. The appellant is engaged in various purchases of agriculture produce from farmers in entire State of Maharashtra and as such, it has offices spread over entire State at every district place. The respondent no.1 runs a shop which sells fertilizers, pesticide seeds and other agriculture equipment. The respondent no.1 purchased various fertilizers from its Yavatmal Office. The respondent no.1 used to repay the amount by issuing cheques to appellant federation. There was outstanding amount towards the purchase of fertilizers against respondent no.1. The respondent no.1 issued a cheque for an amount of Rs.2, 23, 547.00 dtd. 30/06/2022 drawn on Canera Bank, Yavatmal bearing No.NCCH 8945266. The appellant deposited the said cheque in its account at Yavatmal District Central Co-operative Bank on 05/07/2002. The banker of respondent no.1 informed that the said cheque is dishonored for "Insufficient Funds". Therefore, notice was issued on 06/07/2002 through an advocate to respondent no.1 thereby calling upon the respondent no.1 to pay the said amount of cheque. Despite receipt of said notice on 10/07/2002, respondent no.1 failed to pay amount within stipulated period of 15 days. The appellant filed complaint before the learned Judicial Magistrate First Class, Yavatmal on 01/08/2022 which was registered as Summary Criminal Case No.1775/2002. 4. After verification of the complainant Shri Sahebrao Jadhav, who was the then District Marketing Officer, the learned Judicial Magistrate First Class, Yavatmal passed an order issuing process on 13/09/2022. Then the matter was fixed for evidence and filing of evidence affidavit in August, 2008. 4. After verification of the complainant Shri Sahebrao Jadhav, who was the then District Marketing Officer, the learned Judicial Magistrate First Class, Yavatmal passed an order issuing process on 13/09/2022. Then the matter was fixed for evidence and filing of evidence affidavit in August, 2008. Meanwhile an Accountant Shri Bhagwan Dagwar and Shri Bhimrao Prabodhankar, District Marketing Officer were given authority to appear and lead evidence before the learned Trial Court. However, said District Marketing Officer was taking the documents to the office of counsel on 12/09/2008 including original cheque, original written memo and other relevant papers and same were fell on the road in transit. Therefore, immediately on the same day, then District Marketing Officer filed a complaint with Police Station, Yavatmal. Similar complaint regarding loss of cheque was also given to then District Central Co-operative Bank, Yavatmal on the same day. Thereafter, when the matter was fixed for evidence on 04/10/2008, an application on affidavit for permission to lead secondary evidence (Exh.52) was filed on behalf of appellant as original cheque and written memo were lost. Admittedly, photocopies of those documents were already filed by the appellant before the learned Trial Court at the time of filing of the complaint. 5. The respondent no.1 opposed the said application for permission to lead evidence by submitting its reply on 18/10/2008 and stated that the reasons mentioned in the application are not true and proper and alleged that those original documents were never possessed by the complainant and complaint of loss of documents is a false story. Thereafter, respondent no.1 filed an application on 17/12/2008 for dismissal of the complaint on the ground that the notice which was issued cannot be termed to be demand notice because it does not convey any specific demand of any particular cheque amount and on that ground, sought dismissal of the complaint. 6. The learned Trial Court on 09/09/2009 heard the parties in respect of Exhibit 52, the application for permission to lead secondary evidence and also on Exhibit 59 the application for dismissal of complaint filed by respondent no.2 and rejected the application of the appellant to lead secondary evidence and further allowed the application of respondent no.1 for dismissal of complaint which resulted into acquitted of respondent no.1. 7. On 25/02/2010, the appellant under misconception filed Criminal Revision Application before the learned Sessions Judge, Yavatmal. 7. On 25/02/2010, the appellant under misconception filed Criminal Revision Application before the learned Sessions Judge, Yavatmal. The learned Additional Sessions Judge, Yavatmal dismissed the said Criminal Revision Application on 28/08/2018. Hence the appellant is constrained to file present appeal against acquittal. 8. Shri Meghe, learned Counsel for appellants relied on the following judgments: 1) Karthik Gangadhar Bhat Vs. Nirmala Namdeo Wagh and another reported in 2018(1) Mh.L.J. 2) Parasanbai Dhanraj Jain and others Vs. Sunanda Madhukar Jadhav and others reported in 2018(1) Mh.L.J. 3) Filmistan Private Ltd., a Co Appellants Vs. The Municipal Corporation for Greater Bombay reported in AIR 1973 Bombay 66. In support of his contention that no permission of Court is required to lead evidence of any kind. No judge in the subordinate judiciary to the High Court will insist for any such application under any circumstances whatsoever. Learned Counsel also relied on Filmistan Private Ltd (supra) wherein it is held that secondary evidence of documents can be allowed to be led only when original document is proved to have existed but was lost or misplaced. 9. The learned Counsel for respondent vehemently opposed the appeal. 10. I have hard both the parties. Perused order passed by the learned Judicial Magistrate First Class, Yavatmal below Exhibit 52. It appears that learned Judicial Magistrate First Class failed to appreciate this fact while issuance of process. The documents were produced by the complainant and on that basis the process came to be issued after due verification of documents. The learned Judicial Magistrate First Class dismissed the application mainly on the ground that though it is stated that the documents were lost on 12/08/2008 and on the same day, complaint was lodged to the Police Station, Wadgaon Road, Yavatmal. However, the acknowledgment by the police station is of 15/08/2008 that means after the period of three days. In view of the citation Parasanbai Dhanraj Jain (supra), there is no permission of Court is required to lead evidence of any kind. It is held as under: "Either secondary evidence is led or it is not led. Either the provisions of Sec. 65 are met or they are not met. No permission of a Court is required to lead evidence of any kind. No judge in the subordinate judiciary to this High Court will hereafter will insist on any such application under any circumstances whatsoever. Either the provisions of Sec. 65 are met or they are not met. No permission of a Court is required to lead evidence of any kind. No judge in the subordinate judiciary to this High Court will hereafter will insist on any such application under any circumstances whatsoever. In an evidence affidavit under Order 18, a witness may well say of a given document that he cannot prove it by direct evidence and then proceed to adduce the secondary evidence in compliance with Sec. 65 of the Evidence Act. The trial court is to consider that evidence, viz., the reason given for not leading direct evidence, and the secondary evidence led, and is to then decide whether the secondary evidence led is sufficient. That is all. There is absolutely no question of an application, whether styled as an interim application or a 'MARJI' application, for 'permission' to lead secondary evidence. The Court cannot refuse that permission, and it cannot insist on an application for any such permission." 11. Similar is the view taken in Karthik Gandadhar Bhat (supra), as such learned Judicial Magistrate First Class, ought not to have rejected the application of the complainant. In view of the fact that while issuing process, the documents were before the learned Judicial Magistrate First Class. Therefore, after they had lost necessary permission to lead secondary evidence ought to have granted by the learned Judicial Magistrate First Class. However, it appears that learned Judicial Magistrate First Class, rejected the application which was in fact not at all required as per judgment of this Court. The learned Trial Court dismissed the complaint itself by passing the order below Exhibit 52 as well acquitted accused as per order below Exhibit 59. The order passed by the learned Judicial Magistrate First Class is patently erroneous and is liable to be set aside. Hence I proceed to pass the following order: O R D E R i) The criminal appeal is allowed. ii) The order dtd. 09/09/2009 passed by the learned Judicial Magistrate First Class, Yavatmal in Summary Criminal Case No.1775/2002, rejecting the application Exhibit 52 and allowing application Exhibit 59 are hereby quashed and set aside. iii) The learned Judicial Magistrate First Class is hereby directed to consider afresh the application for grant of permission to lead secondary evidence. iv) Parties to appear before the learned Judicial Magistrate First Class on 20/10/2022.