2021 (6) TMI 776 - HC - Indian Laws

Dishonor of Cheque - photocopy of the cheque can be taken as secondary evidence as provided under Section 65 of the Evidence Act or not - Whether, writ petition (criminal) assailing legality and propriety of the order passed by the Revisional Court is maintainable? - HELD THAT - Learned counsel while refuting the said contention would submit that the power exercised by this Court under Article 226 of the Constitution of India and under Section 482 Cr.P.C. are one and the same as both the powers have to be exercised rarely and sparingly to prevent abuse of process of any court or to secure the ends of justice, therefore, the writ petition (criminal) assailing the orders passed by the learned Session Judge as well as learned Magistrate First Class is maintainable - the writ petition (criminal) is maintainable assailing the order passed by the learned Sessions Judge in the criminal revision. Therefore, issue number 1 raised by the respondent goes against him and this Court finds that the writ petition (criminal) is maintainable. Whether, the photocopy of the document can be taken as secondary evidence as provided under Section 65 of the Evidence Act? - HELD THAT - From perusal of Clause 2 and 3 of the Section 63 of the Indian Evidence Act it can be said that by some mechanical process copy of the document may be obtained but the petitioner shall ensure its correctness and accuracy by sufficient placing materials on record. It is pertinent to mention here that there is no whisper in the application filed by petitioner before Trial Court which shall indicate that it has been obtained by mechanical process to ensure its accuracy - In the present application since there is no averment under Section 65 of the Indian Evidence Act that photocopy was compared with the original and it was accurate photocopy of the original and further have not filed with affidavit with regard to person who has obtained the said photocopy. From record it is difficult to hold the hallmark, authenticity and accuracy of the photocopy. The petitioner failed to explain as to what were the circumstances under which photocopy was prepared and who was in possession of the original document at the time of photocopy being prepared. In view of these circumstances, this Court comes to conclusion that no foundation has been laid for leading secondary evidence in the shape of photocopy. Thus, it can be established that photocopy is neither primary evidence nor secondary evidence because the parties are required to prove whether the photocopy taken is the exact copy of the original., therefore, in view of Section 65 of the Indian Evidence Act the Revisional Court as well as the Judicial Magistrate First Class have not committed any error while rejecting the application. The learned Judicial Magistrate First Class and learned Revisional Court have not committed any illegality or irregularities while rejecting the application for permission to lead secondary evidence which warrants interference by this Court exercising power under Article 226 of the Constitution of India - Petition dismissed.

Summary

Issues Involved:
1. Maintainability of the writ petition (criminal) under Article 226 of the Constitution of India.
2. Admissibility of photocopy as secondary evidence under Section 65 of the Indian Evidence Act, 1872.

Issue-wise Detailed Analysis:

1. Maintainability of the Writ Petition (Criminal) under Article 226 of the Constitution of India:

The respondent's counsel raised an objection regarding the maintainability of the writ petition (criminal), arguing that the petitioner should have exhausted the remedies available under the Code of Criminal Procedure (Cr.P.C.), specifically under Section 482 Cr.P.C., instead of filing a writ petition under Article 226 of the Constitution of India. The petitioner’s counsel contended that the powers under Article 226 of the Constitution and Section 482 Cr.P.C. are similar and should be exercised rarely and sparingly to prevent abuse of process or to secure the ends of justice.

The court referred to the Supreme Court's decision in Girish Kumar Suneja vs Central Bureau of Investigation (2017), which clarified that the Cr.P.C. is a complete code in itself. The discretionary jurisdiction under Section 397(2) Cr.P.C. is for final and intermediate orders, while Section 482 Cr.P.C. is for interlocutory orders to prevent abuse of process or to serve the ends of justice. The Supreme Court emphasized that resort to Articles 226 and 227 of the Constitution should be permissible only in the most extraordinary cases.

Based on the Supreme Court's precedent, the court concluded that the writ petition (criminal) is maintainable for challenging the order passed by the learned Sessions Judge in the criminal revision. Thus, the first issue was decided against the respondent, affirming the maintainability of the writ petition.

2. Admissibility of Photocopy as Secondary Evidence under Section 65 of the Indian Evidence Act, 1872:

To address this issue, the court examined Sections 63 and 65 of the Indian Evidence Act, 1872. Section 63 defines secondary evidence, which includes certified copies, copies made from the original by mechanical processes ensuring accuracy, copies compared with the original, counterparts of documents, and oral accounts of a document's contents. Section 65 specifies circumstances under which secondary evidence of a document's existence, condition, or contents may be given, such as when the original is lost, destroyed, or otherwise unavailable.

The court noted that the petitioner failed to provide sufficient material to ensure the accuracy of the photocopy of the cheque. There was no indication that the photocopy was obtained by a mechanical process ensuring its accuracy, nor was there an affidavit from the person who prepared the photocopy. The court highlighted that the accuracy of a photocopy is always in doubt due to the potential for alterations.

The court referred to Supreme Court rulings in United India Insurance Co. Ltd. vs Anbari and Others (2000) and J. Yashoda vs. K. Shobha Rani (2007), which emphasized that secondary evidence is admissible only in the absence of primary evidence and when proper explanations for the original's absence are provided. The petitioner did not adequately explain the circumstances under which the photocopy was prepared or who possessed the original document at the time.

Given these deficiencies, the court concluded that the petitioner did not lay a proper foundation for admitting the photocopy as secondary evidence. Consequently, the court upheld the decisions of the Revisional Court and the Judicial Magistrate First Class, which had rejected the application for admitting the photocopy as secondary evidence.

Conclusion:

The court found no illegality or irregularity in the decisions of the lower courts. Therefore, the writ petition (criminal) was dismissed, and no order as to costs was made.