9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (6) TMI 866 - HC - Indian LawsDishonor of Cheque - legally enforceable debt or not - admissible evidence or not - primary or secondary evidence - section 138 of the Negotiable Instruments Act, 1881 - HELD THAT - There is no dispute that respondent No.2 filed a complaint under Section - 200 of the Code for the offence under Section - 138 of the Act, 1881 against the petitioners herein and others and it is also not in dispute that respondent No.2 herein has filed original documents as mentioned in the list of documents appended to the complaint. In the Photostat copy of the certified copy of the said complaint, it is specifically mentioned that the original documents filed in the Court along with complaint returned to respondent No.2 herein on 19.06.2012. In view of the law laid down by the Division Bench in KRISHNAPATNAM PORT COMPANY LTD. VERSUS CARGILL INDIA PVT. LTD. AND ORS. 2018 (7) TMI 2188 - TELANGANA HIGH COURT , respondent No.2 has filed original documents along with the complaint and the same were returned to it after verification of the same upon obtaining an undertaking from respondent No.2 to the effect that it would produce the same at the time of trial. On verification of the same only, the learned Magistrate has taken the cognizance of the offence under Section - 138 of the Act, 1881 vide C.C. No. 5 of 2019. The learned Magistrate then issued summons to the petitioners herein and other accused. There is an endorsement to the said effect in the complaint itself. Respondent No.2 has filed an application under Section 65 (c) of the Act, 1872 which was signed by its GPA Holder, specifically contending the aforesaid facts. Just because respondent No.2 has not lodged any complaint with the police concerned about lost of original documents, the said application cannot be thrown away. There is no reason as to why the petition filed by respondent No.2 signed by its GPA holder and Authorized Signatory stating that the originals were misplaced cannot be believed. According to this Court, respondent No.2 has laid down a factual foundation by filing an application under Section 65 (c) of the Act, 1872 - the learned Magistrate has rightly allowed the application filed by respondent No.2 under Section 65 (c) of the Act, 1872. Petition dismissed.
Issues Involved: Quashing of the order allowing secondary evidence under Section 65(C) of the Indian Evidence Act, 1872 in a case involving Section 138 of the Negotiable Instruments Act, 1881.
Issue-wise Detailed Analysis: 1. Legality of the Magistrate's Order Allowing Secondary Evidence: The petitioners sought to quash the order dated 11.02.2020, passed by the II Special Magistrate at Hyderabad, which allowed the respondent to file Photostat copies of documents as secondary evidence under Section 65(C) of the Indian Evidence Act, 1872. The respondent had initially filed original documents along with the complaint, which were returned after verification by the Magistrate with an undertaking to produce them at trial. The originals were subsequently misplaced, and the respondent sought permission to use Photostat copies. 2. Petitioners' Contentions: The petitioners argued that Photostat copies are inadmissible as secondary evidence, citing the Supreme Court's decision in U. Sree v. U. Srinivas [(2013) 2 SCC 114]. They contended that the respondent failed to prove the loss of originals beyond a reasonable doubt and did not lay a factual foundation for the misplacement. They also argued that the application under Section 65(C) was not maintainable, as the Act, 1872 bars secondary evidence except for certified copies, referencing the Allahabad High Court's decision in Ganesh Prasad v. M/s. Badri Prasad Bholanath [AIR 1980 ALL 361]. 3. Respondent's Submissions: The respondent maintained that the original documents were filed and verified by the Magistrate, who returned them with an undertaking for production at trial. Despite best efforts, the originals were misplaced. The respondent argued that the application under Section 65(C) itself laid the factual foundation for the misplacement and that the Magistrate rightly allowed the application based on the principle laid down in Krishnapatnam Port Co. Ltd. v. Cargill India Pvt. Ltd., 2018 (5) ALD 13 (DB). 4. Court's Finding: The court found no dispute regarding the filing and verification of original documents by the respondent. The respondent's application under Section 65(C) was signed by its GPA Holder and stated that the originals were misplaced. The court referred to the Division Bench's decision in Krishnapatnam Port Co. Ltd., which dealt with the scope of Section 65 and the necessity of affidavits affirming the loss of documents. The Division Bench had held that Photostat copies could be admitted as secondary evidence, considering the probative value and the factual foundation laid by the affidavit. 5. Analysis of Secondary Evidence Admissibility: The court noted that the Division Bench in Krishnapatnam Port Co. Ltd. had permitted the admission of Photostat copies, emphasizing the need for a factual foundation and the probative value of documents. The respondent had laid such a foundation by filing an application under Section 65(C), signed by its GPA Holder, and stating the misplacement of originals. The court found no reason to disbelieve the respondent's claim and held that the Magistrate rightly allowed the application. 6. Conclusion: The court concluded that the Magistrate's order allowing the application under Section 65(C) was reasoned and based on the principle laid down by the Division Bench in Krishnapatnam Port Co. Ltd. The petitioners failed to establish any ground for interference under Section 482 of the Code of Criminal Procedure, 1973. Consequently, the criminal petition was dismissed, and miscellaneous petitions, if any, were closed.
|
