9911796707
TMI Blog2015 (4) TMI 1317X X X X Extracts X X X X X X X X Extracts X X X X ..... oubt, 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, merel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the cheque sought to be marked is the photostat copy of the original cheque and that the original cheque was lost. He contended that as per best evidence rule, the primary evidence has to be adduced for appreciation of Court and secondary evidence can be adduced only in very limited and exceptional circumstances as narrated in Section 65 of Indian Evidence Act and party who proposed to lead secondary evidence must cogently and convincingly establish the existence of circumstances narrated in Section 65. In the instant case, he argued, the complainant utterly failed to establish that there existed original cheque which was filed into Court and later it was replaced by photostat copy by his counsel and the same was lost in his office. The complainant has neither examined the advocate nor produced his affidavit in proof of such plea but still the Courts below on presumptions and assumptions accepted the alleged loss of cheque and permitted him to produce the copy of the cheque purported to be the photostat copy of the original. He vehemently contended that by the orders of the Courts below, great prejudice is caused to the defence of accused inasmuch as their plea before the tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing cases:- (a) x x x (b) x x x (c) when 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. So, one of the enabling circumstances for adduction of secondary evidence is the loss or destruction of original evidence. 8. The Apex Court in the decision reported in Kaliya v. State of Madhya Pradesh happened to discuss about what has to be established by a party to seek production of secondary evidence under Section 65(c) of the Evidence Act. In that case which was a bride burning and death case, the original dying declaration recorded in the hospital could not be traced and upon the evidence of concerned doctors about misplacement of original dying declaration, a carbon copy of the dying declaration was allowed to be produced by the Courts below and approved by the Apex Court. In that context, Apex Court observed as follows: 10. Section 65(c) of the Act 1872 provides that secondary evidence can be adduced relating to a document when the original has been destroyed or lost, or when the party offering evidence of its conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by his counsel was misplaced and lost in his hands. Hence, the questions are whether the complainant could satisfactorily establish firstly, that he in fact, filed the original cheque in Court and secondly, that the said cheque was replaced with an exact copy by his counsel and taken return of the same and lost. 10. Regarding above questions, 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 evid ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
