2020 (1) TMI 934 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - original postal receipt along with the written envelope misplaced - HELD THAT - The Court should be liberal at the time of granting the permission of adducing the secondary evidence. If it is found that the refusal of aforesaid permission would collapse the entire case of the complainant, then the Court should permit the production of secondary evidence - In the present case, the complainant has filed the complaint under section 138 of the Negotiable Instruments Act. It is mandatory requirement for the aforesaid offence that after receiving the information of dishonour of cheque, notice should be given to the accused for demanding the money. If the accused did not pay the aforesaid money within 15 days from the date of receiving the notice, the complainant may file the complaint. If the postal receipt is proved, then it may be presumed that the notice has been served subject to condition that the service report has not been received within 30 days from the sending of the aforesaid article. Therefore, postal receipt is necessary to prove the sending of notice to the accused. It is also appeared from the record that the accused did not pay any amount to the complainant even after filing the complaint and after receiving the notice of complaint. Therefore, proof of refusal of notice is a mere formality. In view of this Court the revisional Court did not commit any mistake by granting the permission to adduce the secondary evidence of postal receipt and the envelope. Both documents are the important documents and may help the complainant to prove his case. Opportunity of disproving is also available with the petitioners and the right of petitioners has already been protected by the revisional Court - impugned order upheld - petition dismissed.

Summary

Issues Involved:
1. Admissibility of secondary evidence under Section 65 of the Evidence Act.
2. Justification of the revisional court's order allowing secondary evidence.
3. Protection of the petitioners' rights during the admission of secondary evidence.

Issue-wise Detailed Analysis:

1. Admissibility of secondary evidence under Section 65 of the Evidence Act:

The respondent filed an application under Section 65 of the Evidence Act, 1872, seeking permission to prove the misplaced original postal receipt and written envelope via secondary evidence. The trial court dismissed this application, but the revisional court allowed it. The revisional court cited precedents, emphasizing that secondary evidence is admissible when the original documents are lost or destroyed, provided there is a factual foundation establishing the right to give secondary evidence. The court referred to the Supreme Court's observation in Rakesh Mohindra Vs. Anita Beri & Ors., which stated that secondary evidence is permissible if the original documents cannot be produced despite best efforts and is beyond the party's control.

2. Justification of the revisional court's order allowing secondary evidence:

The revisional court justified its decision by noting that denying the opportunity to adduce secondary evidence would collapse the complainant's case, resulting in a gross miscarriage of justice. The court highlighted that the original documents were produced before the trial court at the time of case registration and were returned after comparison with photocopies. The court emphasized that the refusal to permit secondary evidence would make the trial proceedings a mere formality. The revisional court's order was supported by previous judgments, including M.Chandra Vs. M.Thangamuthu and another, which stated that secondary evidence might be adduced if the original is genuinely unavailable through no fault of the party.

3. Protection of the petitioners' rights during the admission of secondary evidence:

The revisional court also protected the petitioners' rights by allowing them to cross-examine witnesses regarding the existence and custody of the original documents and to challenge the documents' authenticity. The court ensured that the trial court would consider such evidence strictly in accordance with the law and prescribed procedures. The High Court affirmed this approach, noting that the revisional court's order did not exhibit any perversity, irregularity, or illegality. The High Court concluded that the revisional court's decision to allow secondary evidence was justified and that the petitioners' rights were adequately protected.

Conclusion:

The High Court dismissed all petitions, upholding the revisional court's order permitting the respondent to adduce secondary evidence of the postal receipt and envelope. The court found that the revisional court's decision was legally sound and protected the petitioners' rights, ensuring a fair trial process.