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TMI Blog2021 (6) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... condary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent as required under Section 138 of the Negotiable Instruments Act, 1881 (herein after referred to as 'the N.I. Act') which was neither replied nor payment was made to the petitioner. Thereafter, he filed a complaint under Section 138 of the N.I. Act before the learned Chief Judicial Magistrate on 05.11.2012. Before registration, as required under Section 200 of the Cr.P.C., the petitioner exhibited the documents namely the cheque, cheque forwarding memo and intimation by the bank regarding dishonored of the cheque. Learned trial Court taking cognizance of the complaint issued summons to respondent who appeared before the learned Chief Judicial Magistrate, Dhamtari. 4. During trial of the case, when evidence was being recorded, the original cheque and other relevant documents were lost. The petitioner filed an application on 14.08.2012 for permitting him to submit secondary evidence as provided under Section 65 of the Indian Evidence Act, 1872, mainly contending that he has already submitted photocopy of the cheque, return memo issued by the Central Bank, Branch Dhamtari, memorandum given by the H.D.F.C. Bank with regard to dishonored of the cheque along with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, the writ petition (criminal) assailing the orders passed by the learned Session Judge as well as learned Magistrate First Class is maintainable. 7. The issue raised by the respondent is no more res-integra as the Hon'ble Supreme Court has already concluded the issue in case of Girish Kumar Suneja vs Central Bureau of Investigation 2017(14) SCC 809 and has held in paragraph No. 38 as under :- 38. The Cr.P.C. is undoubtedly a complete code in itself. As has already been discussed by us, the discretionary jurisdiction under Section 397(2) of the Cr.P.C. is to be exercised only in respect of final orders and intermediate orders. The power under Section 482 of the Cr.P.C. is to be exercised only in respect of interlocutory orders to give effect to an order passed under the Cr.P.C. or to prevent abuse of the process of any Court or otherwise to serve the ends of justice. As indicated above, this power has to be exercised only in the rarest of rare cases and not otherwise. If that is the position, and we are of the view that it is so, resort to Articles 226 and 227 of the Constitution would be permissible perhaps only in the most extraordinary case. To invoke t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen 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 consists 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 document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the 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. 10. From perusal of the provisions, it is quite cry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reciate that production of a photocopy was not sufficient to prove that the driver had a valid licence when that fact was challenged by the appellant and genuineness of the photocopy was not admitted by it. Therefore, the judgment and oder passed by the High Court in FAO No. 2368 of 1998 deserves to be set aside. We accordingly, allow this appeal and remit the matter back to the High Court for deciding the said appeal afresh after giving an opportunity of hearing to the parties. 13. In the case of J. Yashoda vs. K. Shobha Rani 2007 (5) SCC 730 Hon'ble Supreme Court has held in paragraphs No. 7,8 and 9 as under :- 7. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. 8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed Photostat copy. Prayer was also made by the appellant that in case respondent no. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the Photostat copy had been filed by the appellant was in the possession of Respondent No. 1. There was also no other material on the record to indicate the original document was in the possession of respondent no.1. The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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