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2024 DIGILAW 818 (ALL)

Ishwar Sharan Tripathi v. State of U. P.

2024-03-14

NALIN KUMAR SRIVASTAVA

body2024
JUDGMENT : Nalin Kumar Srivastava, J. 1. Present criminal appeal has been filed on behalf of the appellant Ishwar Sharan Tripathi against the judgment and order dated 27.9.2021 passed by Additional Session Judge, Court No.4/Special Judge, N.D.P.S. Act, Gorakhpur in Criminal Appeal No.18 of 2018 (Ashok Chand Vs. Ishwar Sharan Tripathi) arising out of Complaint Case No.20 of 2013 (Ishwar Sharan Tripathi Vs. Ashok Chand) under Section 138 Negotiable Instrument Act, Police Station Cantt. District Gorakhpur. 2. As per the factual matrix of this matter, a Complaint Case No.20 of 2013 (Ishwar Sharan Tripathi Vs. Ashok Chand) under Section 138 Negotiable Instrument Act was filed by the complainant Ishwar Sharan Tripathi, the present appellant, wherein after trial, the accused/present respondent no.2 was convicted by the Court of Additional Chief Judicial Magistrate-I, Gorakhpur under Section 138 Negotiable Instrument Act and sentenced for simple imprisonment for a period of 2 years alongwith fine of Rs.2,40,000/-with default sentence. The said conviction order was challenged by accused Ashok Chandra in Criminal Appeal No.18 of 2018 wherein the Appellate Court of Additional Sessions Judge, Court No.4/Special Judge, N.D.P.S. Act, Gorakhpur allowed the criminal appeal and by setting aside the judgment and order dated 31.1.2018 recorded acquittal of the accused/present respondent no.2, feeling aggrieved to which the present criminal appeal has been preferred by the complainant of the said complaint case. 3. The facts mentioned in the complaint disclose the complete story. It has been narrated in the complaint that due to some business need, the accused Ashok Chandra borrowed Rs.80,000/-on 25.11.2011 and Rs.60,000/-on 2.12.2011 from the complainant, but the same was not returned and subsequently a cheque valuing Rs.10,000/-was given to the complainant, which was encashed. Subsequently, another cheque bearing no.500096 amounting to Rs.20,000/-relating to Bank of Baroda, Branch University Chauraha, Gorakhpur was also given by the accused to the complainant on 30.9.2012, which was dishonoured on 4.12.2012 and was returned by the Bank due to insufficiency of fund in the account. Subsequently, on 15.11.2012, again a cheque no.694010 amounting to Rs.1,20,000/-was given by the accused to the complainant, but the same was again returned back by the Bank on account of insufficiency of fund in the bank account. Subsequently, on 15.11.2012, again a cheque no.694010 amounting to Rs.1,20,000/-was given by the accused to the complainant, but the same was again returned back by the Bank on account of insufficiency of fund in the bank account. On 10.12.2012, a legal notice was sent by the complainant, which was served and reciprocated by the accused by a reply notice dated 21.12.2012, but the borrowed money of the complainant was never returned by the accused and was usurped by him and the two cheques, which were given by the accused in lieu of the borrowed money, were dishonoured by the Bank due to insufficiency of fund in the bank account of the accused. 4. After filing of the complaint under section 138 Negotiable Instrument Act, the accused was summoned and after exhausting due procedure, judgement was delivered by the Court of Additional Chief Judicial Magistrate-I, Gorakhpur on 31.1.2018 and the accused Ashok Chandra was convicted as here-in-above mentioned. 5. Heard learned counsel for the appellant, learned A.G.A. for the State as well as learned counsel for the respondent no.2 and perused the record. 5. It is submitted by the learned counsel for the appellant that the Appellate Court did not appreciate the evidence on record in proper and legal manner whereas there was concrete and credible evidence disclosing the complicity of the accused/respondent no.2 in the commission of alleged offence. The original cheque and bank report was provided by the complainant to the Court which after perusal were returned back to the complainant by the Court and this fact finds place in the order-sheets of the case as well. The original documents, which the appellant possessed, were provided to the Court, but the learned Appellate Court made it a material ground for disbelieving the case of the complainant. The learned Appellate Court totally ignored this fact that the debt liability was admitted by the respondent no.2 himself and he had also shown his willingness to repay this amount in question, which fulfills the legal requirement and essential ingredients to establish an offence under section 138 Negotiable Instrument Act. The learned Appellate Court recorded the findings which are against the evidence on record and did not appreciate the argument advanced from the appellant's side in proper manner. On this ground, a prayer to set-aside the judgment passed by the Appellate Court in Criminal Appeal No.18 of 2018 dated 27.9.2021 has been made. The learned Appellate Court recorded the findings which are against the evidence on record and did not appreciate the argument advanced from the appellant's side in proper manner. On this ground, a prayer to set-aside the judgment passed by the Appellate Court in Criminal Appeal No.18 of 2018 dated 27.9.2021 has been made. 6. Per contra, learned A.G.A. and learned counsel for the respondent no.2 vehemently opposed the appeal and it has been urged that the grounds taken by the learned Appellate Court in deciding the appeal were absolutely in consonance with the evidence on record. Since the original papers were not filed by the complainant and he had made some material contradictions in his deposition before the Court, the Appellate Court did consider it, as required by law and ultimately by setting-aside the conviction judgment, recorded the acquittal of respondent no.2, which was a legal and proper order. On these grounds, a prayer for dismissal of criminal appeal has been made. 7. A perusal of the impugned judgment reveals that main reason for recording the acquittal of the accused in the said complaint case was that it was based on some photo copies of documents which were relevant in view of the complainant’s case but were inadmissible in evidence. 8. The present appellant/the original complainant had earlier filed complaint case no.20 of 2013 (Ishwar Sharan Tripathi Vs. Ashok Chand) under Section 138 Negotiable Instrument Act, Police Station Cantt. District Gorakhpur alleging therein that to meet out the debt liability, the accused issued two cheques in his favour which were dishonoured by the Bank due to insufficiency of amount in the bank account of the accused. Some documentary evidence were also submitted by the complainant besides the oral evidence, which are as follows : (i) Photo stat copy of the Cheque No.694010 dated 15.11.2012 of Rs.1,20,000/-of Punjab National Bank, Branch Ramgarch Tal, Gorakhpur. (ii) Photo stat copy of the report of the Bank regarding dishonour of the cheque on 16.11.2012. (iii) Photo stat copies of the notice dated 10.12.2012 sent by the advocate as well as receiving thereof. (iv) Photo stat copy of the Registry receipt dated 10.12.2012. 9. The aforesaid four documents may be termed as the basis of the claim of complainant. (iii) Photo stat copies of the notice dated 10.12.2012 sent by the advocate as well as receiving thereof. (iv) Photo stat copy of the Registry receipt dated 10.12.2012. 9. The aforesaid four documents may be termed as the basis of the claim of complainant. The learned Magistrate relying upon the oral evidence and photo copy of the documents produced in evidence held that the complainant has successfully proved his case beyond reasonable doubt against the accused and recorded his conviction under section 138 Negotiable Instrument Act and he was sentenced for a simple imprisonment for 2 years along with Rs.2,40,000/-as fine with default clause. In the appeal, the main contention of the convict was that the learned trial court committed a severe illegality in relying upon the photo copies of the documents, which were the basis of the case and also in holding the accused appellant guilty on the basis of such inadmissible documentary evidence. The Appellate Court took into account the admissibility of the documents in evidence, which were not filed in original, but in the form of photo stat copies. 10. It is pertinent here to have a glance upon the specific provisions under the Evidence Act in respect of primary and secondary evidence and also when and under what circumstances secondary evidence can be given. 11. Section 62 of the Indian Evidence Act, 1872 makes a provision that “Primary Evidence means the documents itself produced for the inspection of the Court”. 12. And what the secondary evidence is, we can find the answer under Section 63 of the Indian Evidence Act, 1872, which defines the secondary evidence as follows : "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.” 13. Section 61 of the Indian Evidence Act provides that the contents of documents may be proved either by primary or by secondary evidence. 14. Section 61 of the Indian Evidence Act provides that the contents of documents may be proved either by primary or by secondary evidence. 14. It is to be noted that to produce primary evidence with an object to prove the case is not a must always. The facts can be proved on the basis of secondary evidence as well. There should be no confusion that evidence led in the form of secondary evidence is not always inadmissible. A case can be successfully proved by furnishing secondary evidence in place of primary evidence, but it is not a blanket proposition of law and the conditions are defined in the Evidence Act itself as to under what circumstances secondary evidence may be permitted to adduce to prove the case. 15. The provisions promulgated in Section 65 of the Evidence Act are relevant in this context, which are as follows : “65. 15. The provisions promulgated in Section 65 of the Evidence Act are relevant in this context, which are as follows : “65. Cases in which secondary evidence relating to document 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 consist 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 documents is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of 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.” 16. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of 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.” 16. So far as the case in hand is concerned, nowhere it is elucidated by the appellant/complainant before this Court that the original documents including the impugned cheque were lost or destroyed or were out of his reach or the original was a public document or otherwise it was not possible to produce it before the Court and this omission indubitably denudes the case of the appellant/complainant and he fails to draw his case within the purview of relaxations provided under Section 65 of Evidence Act. 17. As may be found in the judgment of the Magistrate Court dated 31.1.2018, the complainant of the said case never clarified as to why he did not produce original documents before the Court and even he could not assign any reason for the same. It is a matter of common sense that when the cheque was dishonoured and the complainant was intimated by the bank for the same, he must have received the original cheque which was deposited by him in the bank, but surprisingly he did not bother to produce it in original before the trial court. Not only this, but the information of dishonour of cheque provided by the bank in writing to him was not produced in its original form. Legal notice sent by the complainant along with a receipt thereof and registry receipt were also produced in photo stat form. It was nowhere clarified or explained by the complainant as to why he withheld the original documents with him and what prevented him to produce the originals in the court. It is pertinent to mention here that the accused/respondent no.2 in the present appeal had nowhere admitted that he had issued a cheque amounting to Rs.1,20,000/- to the complainant. Hence it was not a case of admission on the part of the accused/respondent no.2 that he ever issued a cheque for Rs.1,20,000/-in favour of the complainant. 18. It is pertinent to mention here that the accused/respondent no.2 in the present appeal had nowhere admitted that he had issued a cheque amounting to Rs.1,20,000/- to the complainant. Hence it was not a case of admission on the part of the accused/respondent no.2 that he ever issued a cheque for Rs.1,20,000/-in favour of the complainant. 18. It was also urged by the appellant that an application under section 391 Cr.P.C. to permit him to produce original documents was moved but it was rejected by the Appellate Court. Although the same is not on record, but the consequence is the same that original documents were not on record before the Magistrate Court and the Appellate Court as well. No satisfactory explanation was offered by the present appellant as to how he was prevented to submit original documents before the trial court and in such a situation, he is not entitled to provide the liberty to submit the secondary evidence in this matter. 19. A plea was raised by the learned counsel for the appellant that the photo stat copy of a document may be treated as secondary evidence. 20. Vehemently opposing the aforesaid submission, the learned counsel for the respondent no.2 submitted that a photo stat copy is never admissible in evidence and it has been rightly held by the Appellate Court in this matter. 21. Reliance has been placed upon the decision of the Hon’ble Supreme Court in Smt. J. Yashoda Vs. Smt. K. Shobha Rani, 2007 (3) SCC (Cri) 9 wherein it has been explicitly pronounced that photo stat copy of original cannot be received as secondary evidence in terms of Section 63 of the Indian Evidence Act and it was also reminded in the said law that so long as higher or superior evidence is in possession of a party, the party shall give no inferior proof in relation to it. Further it has been held that essential secondary evidence is an evidence which may be given in the absence of that better evidence, which now requires to be given first, when a proper explanation to its absence is given. 22. The same tone of law is found in Ashok Dulichand Vs. Madahavial Dube and Another, 1975 (4) SCC 664 and in umpteen of cases. 23. Learned counsel for the appellant has also relied upon the case of State of Rajasthan Vs. 22. The same tone of law is found in Ashok Dulichand Vs. Madahavial Dube and Another, 1975 (4) SCC 664 and in umpteen of cases. 23. Learned counsel for the appellant has also relied upon the case of State of Rajasthan Vs. Asharam @ Ashumal (Criminal Appeal No. of 2023 arising out of Special Leave Petition (Criminal) No.2044 of 2022 and Rajesh Kumar @ Pappu Vs. State of U.P. and Anr., 2023 0 AHC 209130, but in the facts and circumstances of the present case, the appellant gets no help from the aforesaid case laws. 24. From the aforesaid discussions, it is summarized that the respondent no.2/accused borrowed a sum of money from the appellant/original complainant and for the repayment of the same, he issued a cheque which was dishonoured on account of insufficiency of fund. When a case under section 138 Negotiable Instrument Act was filed by the complainant/appellant after completing all the formalities of notice etc., he produced some documentary evidence in his case. The said documents formed the basic structure of the claim of the complainant, but the basis and primary evidence in the form of original documents was withheld by the complainant for the reasons best known to him before the Magistrate Court and he relied upon the photo stat copies of the said documents including the impugned cheque, notice etc. and never disclosed before the Court as to what was the reason which compelled him to withhold the original documents, which were very well in his own possession, but the learned Magistrate relied upon the said photo stat copies of the documents and without paying any attention to the legal value and inadmissibility of the photo stat copies, recorded the conviction of the accused. However, subsequently the Appellate Court considered this issue and it was rightly held that photo stat copy of a document is not admissible in evidence and accused was acquitted. Same is the position before this Court. Since the original documents were withheld by the present appellant/complainant himself without assigning any cogent and satisfactory explanation to this omission, this Court is also of the considered view that the appellant/complainant has miserably failed to prove its case. Same is the position before this Court. Since the original documents were withheld by the present appellant/complainant himself without assigning any cogent and satisfactory explanation to this omission, this Court is also of the considered view that the appellant/complainant has miserably failed to prove its case. The Appellate Court of Additional Session Judge, Court No.4/Special Judge, N.D.P.S. Act, Gorakhpur has committed no wrong in allowing the appeal presented by the present respondent no.2/accused vide judgment and order dated 27.9.2021 and this Court also concurs with the same. There is no illegality or perversity in the impugned judgment and order dated 27.9.2021 and the Appeal has no force. 25. Resultantly, the present Appeal is liable to be dismissed and hence is hereby dismissed. 26. Let the trial court record, if summoned, be remitted back to the court concerned. 27. A copy of this judgment be also sent to the concerned court for necessary compliance.