2015 (4) TMI 1317 - HC - Indian Laws

Dishonor of Cheque - adducing the photostat copy of cheque as secondary evidence - the complainant did not establish the facts that the cheque sought to be marked is the photostat copy of the original cheque and that the original cheque was lost - Section 65 of the Evidence Act - HELD THAT - Since the trial Court will not number the criminal case without production of original cheque at the time of filing the case, it can be presumed that original cheque must have been filed into Court. Further, as per the observation of learned Metropolitan Sessions Judge, it was not the contention of the accused before him that the original cheque was not filed at all into Court. So, by this count also it can be held that original cheque was indeed filed into Court. Then, at the time of withdrawing original cheque concerned Court staff will return the original cheque only on comparison of original with photostat copy. Therefore, the photostat copy now available in the Court can be presumed as exact copy of original cheque. Then loss of cheque is concerned, no doubt, except the affidavit of complainant he has not produced any supporting evidence or affidavit of his previous counsel. In the considered view of this Court, that is not the big lapse to reject his request. As rightly argued by learned counsel for 2nd respondent/complainant the document sought to be produced is not brought forth all of a sudden, but is available in the Court itself. Therefore, the Courts below were right in permitting him to adduce the secondary evidence. Therefore, the contention of the accused that original cheque was not filed into Court and its loss was not proved cannot be appreciated. The next contention of the petitioners/accused is that photostat copy of the cheque is easily tamperable by mechanical process and if the same is allowed to be marked as exhibit, accused may not be able to send the document for comparison to FSL to establish their defence plea - HELD THAT - The burden is on the complainant to prove the contents of the cheque. It is only after the complainant discharges his evidentiary burden then the onus shifts to accused. The accused can establish their defence by various other means which are legally permissible to them. So, merely on the apprehension that the accused will loose the opportunity to send the document to FSL, the complainant cannot be restrained from establishing his case by producing the secondary evidence. Therefore, this contention also cannot be accepted. There are no merits in the Criminal Petition - petition dismissed.

Summary

Issues:
Petition to quash order allowing secondary evidence of a photostat copy of a cheque in a case under Section 138 of the Negotiable Instruments Act.

Analysis:
1. The complainant filed a case under Section 138 of the Negotiable Instruments Act and sought to mark a photostat copy of a lost original cheque as secondary evidence. The trial court allowed this, leading to the petitioners seeking to quash this order.
2. The petitioners argued that the complainant failed to establish the loss of the original cheque and the authenticity of the photostat copy, emphasizing the need for primary evidence under the best evidence rule.
3. The respondents contended that the original cheque was lost, and the photostat copy in court records was a valid replacement for the lost original. They argued that the courts rightly permitted the use of secondary evidence.
4. The main issue was whether the complainant satisfactorily established the loss of the original cheque and the authenticity of the photostat copy to warrant the use of secondary evidence.
5. The court referred to Section 65(c) of the Evidence Act, which allows secondary evidence when the original is lost. The Apex Court's decision in a similar case emphasized the need to prove the loss of the original document for admissibility of secondary evidence.
6. The court found that the complainant had likely filed the original cheque in court, and the photostat copy was a valid replacement based on court procedures. The loss of the cheque was accepted as true, allowing for the use of secondary evidence.
7. The petitioners' concern about the tamperability of the photostat copy and the inability to send it for forensic examination was dismissed, as the burden of proof lay with the complainant, and the accused had other legal avenues for defense.
8. The court distinguished cited cases that did not align with the current situation and concluded that there were no merits in the petition to quash the order allowing secondary evidence.
9. The Criminal Petition was dismissed, and any related pending petitions were closed as a result of the judgment.