Karnataka High Court
Sri Vinay Kumar C.H vs Sri Shivashankar B on 26 June, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.4184 OF 2023
BETWEEN:
SRI. VINAY KUMAR C.H.,
S/O LATE H.CHANDRASHEKAR BHAT,
AGED ABOUT 38 YEARS,
R/O NO.29, 5TH CROSS,
PATALLAPA LAYOUT, NAGASHETTI HALLI,
BENGALURU - 560 094.
... PETITIONER
(BY SRI.S.H.RAGHAVENDRA., ADVOCATE)
AND:
SRI. SHIVASHANKAR B.,
S/O SRI. BHAKTHVATSALA,
AGED MAJOR,
R/O NO.1166,
MOODALAGINI, 1ST FLOOR,
2ND CROSS, 6TH BLOCK,
HMT LAYOUT, VIDYARANYAPURA,
BENGALURU - 560 097.
WORKING @
OFFICE OF ASSISTANT EXECUTIVE ENGINEER,
PWD OFFICE, PRE-SOUTH SUB-DIVISION,
1ST FLOOR, ZP BUILDING, BHANASHAKARI,
BENGALURU - 560 011.
2
PERMANENT ADDRESS
NO.24, 3RD CROSS,
PALACE GUTAHALLI,
BENGALURU - 560 020.
... RESPONDENT
(BY SRI.L.SRINIVASA, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 21.04.2023
PASSED ON THE APPLICATION FILED U/S 65 OF EVIDENCE ACT IN
C.C.NO.12540/2020 PASSED BY THE HONBLE XVIII A.C.M.M,
COURT AT BENGALURU VIDE ANNEXURE-A.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 13.06.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court calling in question order dated 21-04-2023 passed by the XVIII Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.12540 of 2020 allowing an application filed by the respondent/accused under Section 65 of the Indian Evidence Act, 1872 ('Evidence Act' for short).
32. Heard Sri S.H. Raghavendra, learned counsel appearing for the petitioner and Sri L.Srinivasa, learned counsel appearing for the respondent.
3. The facts in brief germane are as follows:-
The petitioner is the complainant and respondent is the accused. The two have a transaction and in furtherance of which the accused is said to have issued a cheque in favour of the complainant. The complainant when presents the cheque for realization, was dishonoured for want of sufficient funds. This leads the complainant to cause a legal notice upon the accused/ respondent and takes further proceedings by registering a complaint invoking Section 200 of the Cr.P.C. before the concerned Court. The learned Magistrate takes cognizance of the offence and issues summons to the accused. The issue in the lis, does not concern with the merit of the matter. What drives the petitioner/complainant to this Court is an order passed by the concerned Court on 21-04-2023 on the application filed by the accused under Section 65 of the Evidence Act. In the proceedings at the time when the evidence was on, the accused files an application 4 before the concerned court under Section 65 of the Evidence Act to produce the loan agreement dated 9-10-2018 in a photo copy form
- a notarized photo copy. The concerned Court, after considering the application averments and the objections, allows the application and directs production of photo copy of the loan agreement as sought by the accused. It is therefore, the petitioner/complainant is before this Court challenging the said order.
4. The learned counsel appearing for the petitioner/ complainant would contend that the accused had no case against the petitioner. Knowing full well that the original of the loan agreement was not in possession of the accused, the accused seeks to produce a photo copy of the loan agreement as secondary evidence. It is his submission that such secondary evidence cannot be taken into consideration, as, such document would be in complete violation of law, notwithstanding the fact that the document is notarized.
5. On the other hand, the learned counsel appearing for the respondent/accused would submit that the issue lies in the loan 5 agreement. Therefore, the loan agreement is placed on record in the form of photo copy which is notarized. He submits that mere production of photo copy of the loan agreement by itself would not prove the case of the accused, as he has to prove the contents of the document. Therefore, no prejudice would caused to the petitioner, if the document is permitted to be marked as secondary evidence. He would seek dismissal of the petition.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
7. The afore-narrated facts are not in dispute. The transaction between the parties is a matter of record. While the trial was on, in a proceeding under Section 138 of the Negotiable Instruments Act, 1881, the respondent/accused files an application to produce a photo copy of the loan agreement under Section 65 of the Evidence Act. It was his contention in the application that the loan agreement is a photocopy, as the original is with the complainant. He seeks production of the said loan agreement 6 before the Court for the purpose of marking of the document as secondary evidence. This is seriously objected to by the petitioner before the concerned Court. The concerned Court, by its order dated 21-04-2023, considers entire spectrum of facts that led the accused seeking to place on record secondary evidence and allows the same. The reason so rendered by the concerned Court to allow the application is as follows:
".... .... ....
07. The learned counsel for the complainant has vehemently argued that the accused without following the provisions of Notary Act has notarized the document and produced Notarized copy of the agreement along with application even though he was not possessed the original of the said agreement. He argued that the accused himself contended that the original of the agreement with the complainant, then how he has notarized the xerox copy without producing the original for verification of the Notary. The said conduct of the accused shows that he has created the said document and produced for wrongful gain. In support of his submissions he has relied on judgment reported in AIR 1992 BOMBAY 149 in the case of Prataprai Trumbaklal Mehtha Vs Jayanth Nemchand Shah and anr and the judgment of Punjab and Hariyana in CRM- M 29700/2008 in the case M/s Sri. Manohar International Vs Neelam Rani Jain. I have gone through the said judgments. The facts of the said judgment is not applicable to the present case. No doubt the notary public who has notarized the xerox copy of the agreement has violated the notary rules without verifying the original has notarized the document. But the said reasons is alone is not sufficient to refused the permission to lead secondary evidence. At the time of hearing the accused has produced xerox copy of the alleged agreement dated 9.10.2018. Whether the said document is a forged one or not has to be looked into at the time of final disposal of the case. At this stage 7 it is not appropriate to give findings on the said document. As referred above section 65 of the Evidence Act give an opportunity to lead secondary evidence if necessary requirements are complied.
08. The learned counsel for the complainant further argued that permission to lead secondary evidence under section 65 of Evidence Act can be permitted if complied the requirements under section 63 of Evidence Act. But in the present case the accused has not complied any requirements mandated under section 63 of Evidence Act. As such it is not permissible to mark a xerox copy of the agreement. He further argued that xerox copy of the document is not the secondary evidence of the original which is not permissible under section 63 of Evidence Act. On the other hand the learned counsel for the accused has relied on the judgment in the case of Jagmail Singh and anr Vs Karmjeeth Sing and anr reported in 2020 volume -V SCC 178 and argued that the Hon'ble Supreme Court in the said judgment has permitted to lead secondary evidence. I have gone through the said judgment. In the said judgment the Hon'ble Supreme Court has given permission to lead secondary evidence in respect of the lost will and permitted the party to produce xerox copy of the will to prove it in accordance with law. The said judgment is aptly applicable to the present case also. Further, section 63 (2) of Evidence Act is applicable to the xerox copy of the document as such it is permissible to produce a xerox copy of the document with a permission to lead secondary evidence. Hence, in view of the law laid down by the Hon'ble Supreme Court in the aforesaid judgment a permission has to be accorded to the accused to lead secondary evidence in respect of the agreement dated 9.10.2018 by producing the xerox copy of the same. Needless to observe that merely the admission in evidence and marking exhibit of a document does not prove it automatically unless the same has been proved in accordance with law. Therefore, mere production of xerox copy of the agreement and marking it as exhibit is not sufficient to prove the due execution of the agreement. The execution of the agreement has to be proved in accordance with law. Accordingly. I proceed to pass the following:
8ORDER Application filed by the accused under Section 65 of Indian Evidence Act is allowed.
The Accused is permitted to adduce secondary evidence in respect of agreement dated 9.10.2018.
Further Chief of DW1 by 25.5.2023"
(Emphasis added) The concerned Court considers the contention of the complainant that when the accused asserts that the loan document is with the complainant, then how a notarized photo copy could be produced without the notary verifying it in the original form and holds that mere production of the said document would not amount to its proof as it will still have to be proved and permits the same.
8. The petitioner/complainant has rushed to this Court contending that such secondary evidence should not be permitted to be marked as it would be contrary to law. He would seek to place reliance on the judgments rendered by the High Court of Bombay and High Court of Punjab and Haryana of the years 1991 and 2009.
Though the Courts have held that secondary evidence though notarized, when they were not verified at the time of notarization, should not be permitted to be produced as evidence. In the 9 aforesaid circumstances, it becomes necessary to notice Sections 63 and 65 of the Evidence Act. They read as follows:
"63. Secondary evidence.--Secondary evidence means and includes--
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.
... ... ...
65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition or contents of a document in the following cases--
(a) when the original is shown or appears to be in the possession or power--
of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any 10 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 91[India], to be given in evidence;92
(g) when the originals consist 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."
Section 63 deals with secondary evidence and Section 65 deals with cases in which secondary evidence relating to documents may be given. The interpretation of Sections 63 and 65 need not detain this Court for long or delve deep into the matter. The Apex Court in the 11 case of RAKESH MOHINDRA v. ANITA BERI AND OTEHRS1 has held as follows:
".... .... ....
9. As averred in the application, the defendant has summoned the record of General Land Register from the office of DEO, Ambala, who is the custodian of the record. It is the defendant's case that at the time of sanction of the mutation with regard to the suit property he had filed the original affidavits of the co-sharers including affidavits and original letter of disclaimer of late Justice Shri Tek Chand with one photostat set of the same in the office of DEO, Ambala. On the basis of the original letter of disclaimer and affidavits, mutation of the suit property was sanctioned in favour of the deponent. The official concerned produced the original record in the court on 4-7-2013 except the letter of disclaimer executed by late Justice Shri Tek Chand on 24-8-1982, in favour of Shri Harish Chandra Dhanda and Smt Vijaya Kumari, the mother of the applicant. The original disclaimer letter is supposed to be in the said office but the official concerned made statement on oath in the court that the original is not in their office and their office has photostat copy of the original, and therefore, he produced the photostat copy of the letter. According to the defendant, despite his efforts, the original of DW 2/B was not traceable and has been misplaced/lost from the office of DEO, Ambala. In reply to the application, it was denied that the letter of disclaimer ever existed or photostat of the same was ever made. It has been pleaded that late Justice Shri Tek Chand never executed disclaimer letter and the photostat copy was a forged one.
10. Allowing the application of the defendant and granting leave of the court to lead secondary evidence qua document, Ext. DW 2/B, the trial court observed that:
"The photocopy, Ext. DW 2/B has come from the custody of DEO, Ambala and the applicant has been able to comply with the provision of Section 65 of the Evidence Act 1 (2016) 16 SCC 483 12 as it has come in evidence that the original document i.e. letter of disclaimer, Ext. DW 2/B was handed over by the applicant to DEO, Ambala. In view of the aforesaid, this court is satisfied that the original document stands misplaced and the applicant is allowed to lead secondary evidence with respect to the document, Ext. DW 2/B as envisaged under Section 65(c) of the Evidence Act and both these issues are decided in favour of the applicants and against the respondents."
11. The learned Single Judge of the High Court in the civil revision preferred by the plaintiff-Respondent 1 set aside the aforesaid order of the trial court.
12. Hence, this appeal by special leave by the defendant.
13. As a general rule, documents are proved by leading primary evidence. Section 64 of the Evidence Act provides that documents must be proved by the primary evidence except in cases mentioned in Section 65 of the Evidence Act. In the absence of primary evidence, documents can be proved by secondary evidence as contemplated under Section 63 of the Act which reads as under:
"63. Secondary evidence.--Secondary evidence means and includes--
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.13
Illustrations
(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine copy of the original, is secondary evidence of the original."
14. Section 65 of the Act deals with the circumstances under which secondary evidence relating to documents may be given to prove the existence, condition or contents of the documents. For better appreciation, Section 65 of the Act is quoted hereinbelow:
"65.Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases--
(a) when the original is shown or appears to be in the possession or power--
of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, 14 and when, after the notice mentioned in Section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(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;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is 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 consist 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."
1515. The preconditions for leading secondary evidence are that such original documents could not be produced by the party relying upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non- production of primary evidence. Unless, it is established that the original document is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot be accepted.
16. The High Court in the impugned order [Anita Beri v. Rakesh Mohindra, 2014 SCC OnLine HP 4258 : AIR 2014 HP 63] noted the following: (Anita Beri case [Anita Beri v. Rakesh Mohindra, 2014 SCC OnLine HP 4258 : AIR 2014 HP 63] , SCC OnLine HP para 9) "9. There is no averment about Ext. DW 2/B in the written statement. The written statement was filed on 19- 2-2007. Ext. DW 2/B in fact is only a photocopy. The plaintiffs are claiming the property on the basis of a registered gift deed executed in her favour in the year 1984. It was necessary for the defendant to prove that in what manner the document dated 24-8-1982 was executed. The defendant while appearing as AW 1 has admitted in his cross-examination that except in his affidavit, Ext. AW 1/A, he has not mentioned in any document that the letter of disclaimer was executed by Justice late Shri Tek Chand in his presence. The statement of DW 2 does not prove that Ext. DW 2/A, ever existed. DW 2 Shri Gurcharan Singh, has categorically admitted in his cross-examination that he has not brought the original of Ext. DW 2/B. He has also admitted that on Ext. DW 2/B, the signatures of P.C. Danda were not legible. Volunteered that, those were not visible. The learned trial court has completely misread the oral as well as the documentary evidence, while allowing the application under Section 65 of the Evidence Act, 1872, more particularly, the statements of DW 2 Gurcharan Singh and DW 3 Deepak Narang. The applicant has miserably failed to comply with the provisions of Section 65 of the Evidence Act, 1872. The learned trial 16 court has erred by coming to the conclusion that the applicant has taken sufficient steps to produce document, Ext. DW 2/B."
17. The High Court, following the ratio decided by this Court in J. Yashoda v. K. Shobha Rani [J. Yashoda v. K. Shobha Rani, (2007) 5 SCC 730 : (2007) 3 SCC (Cri) 9 : AIR 2007 SC 1721] and H. Siddiqui v. A. Ramalingam [H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 : (2011) 2 SCC (Civ) 209 : AIR 2011 SC 1492] , came to the conclusion that the defendant failed to prove the existence and execution of the original documents and also failed to prove that he has ever handed over the original of the disclaimer letter dated 24-8-1982 to the authorities. Hence, the High Court is of the view that no case is made out for adducing the secondary evidence.
18. The witness DW 2, who is working as UDC in the office of DEO, Ambala produced the original GLR register. He has produced four sheets of paper including a photocopy of letter of disclaimer. He has stated that the original documents remained in the custody of DEO. In cross-examination, his deposition is reproduced hereinbelow:
".......... by Shri M.S. Chandel, Advocate for Plaintiff 2.
I have not brought the complete file along with the record. I have only brought those documents which were summoned after taking up the documents from the file. As on today, as per the GLR, Ext. DW 2/A, the name of Rakesh Mohindra is not there. His name was deleted vide order dated 29-8-2011. I have not brought the original of Ext. DW 2/B. It is correct that Ext. DW 2/D does not bear the signatures of Shri P.C. Dhanda. Volunteered: These are not legible. Ext. DW 2/C is signed but the signatures are not legible. On the said document the signatures of the attesting officer are not legible because the document became wet. I cannot say whose signatures are there on these documents. On Ext. DW 2/E, the signatures at the place deponent also appears to have become illegible because of water. Ext. DW 2/F also bears the faded signatures and only Tek Chand is legible on the last page. It is incorrect to suggest that the last page does not have 17 the signatures of the attesting authority. Volunteered:
These are faded, but not legible. The stamp on the last paper is also not legible. There is no stamp on the first and second page. In our account, there is no family settlement, but only acknowledgment of family settlement. I do not know how many brothers Rakesh Mohindra has. It is correct that the original of Ext. DW 2/H does not bear the signatures of Shri Abhay Kumar. I do not know whether Shri Abhay Kumar Sud and Rakesh Mohindra are real brothers. The abovementioned documents were neither executed nor prepared in my presence. It is incorrect to suggest that the abovementioned documents are forged. It is incorrect to suggest that because of this reason I have not brought the complete file."
19. In Ehtisham Ali v. Jamna Prasad [Ehtisham Ali v. Jamna Prasad, 1921 SCC OnLine PC 65 : (1920-21) 48 IA 365 :
AIR 1922 PC 56] , a similar question came for consideration as to the admissibility of secondary evidence in case of loss of primary evidence. Lord Phillimore in the judgment observed:
(SCC OnLine PC) "It is, no doubt, not very likely that such a deed would be lost, but in ordinary cases, if the witness in whose custody the deed should be deposed to its loss, unless there is some motive suggested for his being untruthful, his evidence would be accepted as sufficient to let in secondary evidence of the deed."
20. It is well settled that if a party wishes to lead secondary evidence, the court is obliged to examine the probative value of the document produced in the court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law.
1821. In M. Chandra v. M. Thangamuthu [M. Chandra v. M. Thangamuthu, (2010) 9 SCC 712 : (2010) 3 SCC (Civ) 907] , this Court considered the requirement of Section 65 of the Evidence Act and held as under: (SCC pp. 735-36, para 47) "47. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party."
22. After considering the entire facts of the case and the evidence adduced by the appellant for the purpose of admission of the secondary evidence, we are of the view that all efforts have been taken for the purpose of leading secondary evidence. The trial court has noticed that the photocopy of Ext. DW 2/B came from the custody of DEO, Ambala and the witness, who brought the record, has been examined as witness. In that view of the matter, there is compliance with the provisions of Section 65 of the Evidence Act. Merely because the signatures in some of the documents were not legible and visible that cannot be a ground to reject the secondary evidence. In our view, the trial court correctly appreciated the efforts taken by the appellant for the purpose of leading secondary evidence."
(Emphasis supplied) 19 The said judgment is subsequently followed in the case of JAGMAIL SINGH AND ANOTHER v. KARAMJIT SINGH AND OTHERS2 wherein the Apex Court holds as follows:
".... .... ....
11. A perusal of Section 65 makes it clear that secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after notice mentioned in Section 66 such person does not produce it. It is a settled position of law that for secondary evidence to be admitted foundational evidence has to be given being the reasons as to why the original evidence has not been furnished.
12. The issue arising out of somewhat similar facts and circumstances has been considered by this Court in Ashok Dulichand v. Madahavlal Dube [Ashok Dulichand v. Madahavlal Dube, (1975) 4 SCC 664 : (1976) 1 SCR 246] , and it was held as under : (SCC pp. 666-67, para 7) "7. ... According to clause (a) of Section 65 of Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the court of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given."
2(2020) 5 SCC 178 20
13. In the matter of Rakesh Mohindra v. Anita Beri [Rakesh Mohindra v. Anita Beri, (2016) 16 SCC 483 : (2018) 1 SCC (Civ) 526] this Court has observed as under : (SCC p. 488, para 15) "15. The preconditions for leading secondary evidence are that such original documents could not be produced by the party relying upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original document is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot be accepted."
14. It is trite that under the Evidence Act, 1872 facts have to be established by primary evidence and secondary evidence is only an exception to the rule for which foundational facts have to be established to account for the existence of the primary evidence. In H. Siddiqui v. A. Ramalingam [H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 : (2011) 2 SCC (Civ) 209] , this Court reiterated that where original documents are not produced without a plausible reason and factual foundation for laying secondary evidence not established it is not permissible for the court to allow a party to adduce secondary evidence.
15. In the case at hand, it is imperative to appreciate the evidence of the witnesses as it is only after scrutinising the same opinion can be found as to the existence, loss or destruction of the original will. While both the revenue officials failed to produce the original will, upon perusal of the cross-examination it is clear that neither of the officials has unequivocally denied the existence of the will. PW 3 Rakesh Kumar stated during his cross-examination that there was another patwari in that area and he was unaware if such will was presented before the other patwari. He went on to state that this 21 matter was 25 years old and he was no longer posted in that area and, therefore, could not trace the will. Moreover, PW 4 went on to admit that, "there was registered will which was entered. There was a katchi (unregistered) will of Babu Singh was handed over to Rakesh Kumar Patwari for entering the mutation...". Furthermore, the prima facie evidence of existence of the will is established from the examination of PW 1, Darshan Singh, who is the scribe of the will in question and deposed as under:
"I have seen the will dated 24-1-1989 which bears my signature as scribe and as well as witness."
16. In view of the aforesaid factual situation prevailing in the case at hand, it is clear that the factual foundation to establish the right to give secondary evidence was laid down by the appellants and thus the High Court ought to have given them an opportunity to lead secondary evidence. The High Court committed grave error of law without properly evaluating the evidence and holding that the prerequisite condition i.e. existence of will remained unestablished on record and thereby denied an opportunity to the appellants to produce secondary evidence.
17. Needless to observe that merely the admission in evidence and making exhibit of a document does not prove it automatically unless the same has been proved in accordance with the law.
18. In view of the aforesaid legal and factual position, we are of the considered opinion that the impugned judgment [Jagmail Singh v. Karamjit Singh, 2017 SCC OnLine P&H 5374] of the High Court suffers from material irregularity and patent errors of law and not liable to be sustained and is thus, hereby set aside. The appeal accordingly stands allowed.
19. The appellants would be entitled to lead secondary evidence in respect of the will in question. It is, however, clarified that such admission of secondary evidence automatically does not attest to its authenticity, truthfulness or genuineness which will have to be 22 established during the course of trial in accordance with law."
(Emphasis supplied) The Apex Court, in the aforesaid judgments, while interpreting Sections 63, 65 and 66 of the Evidence Act has clearly held that if the factual foundation is laid by the party who seeks to produce secondary evidence, even if there is some discrepancy in the said document, such secondary evidence should be allowed to be produced, as it would be the burden on the person who produces such evidence to prove the contents of the document, as mere production of the document would not amount to its proof.
Therefore, the Apex Court in the afore-quoted judgments upturns the judgments rendered by the High Courts which had not permitted such secondary evidence to be taken on record and directs concerned Court to take the secondary evidence on record and proceed in accordance with law.
9. If the impugned proceedings are considered on the bedrock of the principles laid down by the Apex Court (supra), what would 23 unmistakably emerge is, the impugned order would not warrant any interference. The loan agreement that the accused seeks to produce is an agreement between the complainant and the accused. It is the contention of the accused that he has repaid the entire loan amount by way of cash and account transfer. Notwithstanding the said fact, the original of the loan agreement is deliberately retained by the complainant and at the time of execution of the said loan agreement, the complainant while retaining the original had handed over a photo copy of the loan agreement to the accused. It is, therefore, the accused seeks to produce photocopy of the original document, which is handed over by the complainant to the accused at the time of execution of loan agreement. It is the complainant's case as well, that the original of the loan agreement, is with him and the photo copy is with the accused. If that be so, the very objection of the complainant for production of such photo copy would tumble down. The Apex Court holds that minor discrepancies for want of signature on the documents inter alia will all become a matter of trial after production of the said document. Therefore, no fault can be found with the order permitting production of secondary evidence under Section 65 of the Evidence Act.
2410. For the aforesaid reasons, finding no merit in the petition, the petition stands rejected.
Sd/-
JUDGE bkp CT:SS