Madhya Pradesh High Court
Sailendra Jain vs Jinesh Jain on 3 December, 2015
MCRC-14354-2014
(SAILENDRA JAIN Vs JINESH JAIN)
03-12-2015
Shri R.P. Mishra, counsel for the applicant.
Heard on admission.
The applicant has challenged the order dated 21.6.2013
passed by JMFC, Chhindwara in Criminal Case No. 937/2008
whereby the application under Section 65 of the Evidence Act
filed by the complainant was accepted by the trial Court. The
applicant has also challenged the order dated 15.3.2014
passed by Special Judge and First Additional Sessions Judge,
Chhindwara in Criminal Revision No. 177/2013 whereby the
revision filed by applicant was dismissed.
Facts of the case, in short, are that a complaint was filed
against the applicant that he issued a cheque which was dishonoured. Thereafter, the applicant called the complainant for negotiation and in scuffling the cheque was torn and, therefore, the complainant moved the application under Section 65 of the Evidence Act to produce the photo copy of the cheque and to lead the secondary evidence. The application was allowed and revision filed by the applicant was dismissed.
After considering the submissions made by the learned counsel for the applicant, it appears that the allegation of learned counsel for the applicant appears to be incorrect that no opportunity of hearing was given to the applicant while deciding the application because in Para-2 of the order dated 15.3.2014 of the revisionary Court, it would be apparent that the applicant has filed a reply to the application under Section 65 of the Evidence Act and, therefore, it cannot be said that no opportunity of hearing was given to him. Secondly, if cheque was torn prior to its submission before the Bank then certainly no case under Section 138 of the Negotiable Instruments Act would have constituted but when cheque was placed before the Bank and it was dishonoured and thereafter during negotation, if it was torn by the applicant or it was destroyed due to any other reason then certainly the original cheque was produced before the Bank and there is document to show that such cheque was issued and sent to the Bank for its encashment. Under these circumstances, it is a good case in which secondary evidence could be led to prove the contents of the cheque by filing its photo copy. If the cheque was found to be torn after getting it back from the Bank then it cannot be said that the complainant has no case.
Both the Courts below did not commit any illegality or perversity while accepting the application under Section 65 of the Evidence Act filed by the complainant. There is no reason to entertain the present petition under Section 482 of the Cr.P.C. in favour of the applicant.
In absence of any reason, petition under Section 482 filed by the applicant is hereby dismissed at motion stage.
(N.K. GUPTA) JUDGE