Madhya Pradesh High Court
Akhilesh Rathor vs Rakesh Pathak on 12 May, 2016
1 Mcrc.1067.2011
Akhilesh Rathore Vs. Rakesh Pathak
12.05.2016
None for the applicant even in the second
round.
None for the respondent though he has filed
a reply on 25.04.2016.
The matter is pending since the year 2011
and there is a stay of proceedings of the trial
court, hence, in the absence of learned counsel
for the parties, matter is not adjourned.
Considered the petition under Section 482
of the Code of Criminal Procedure which has
been filed against the order dated 13.01.2011
passed by the Judicial Magistrate First Class,
Gwalior (M.P.) in Criminal Complaint Case
No.10829/2008 whereby the application of the
applicant was dismissed for secondary evidence.
Facts of the case, in short, are that a
compliant under Section 138 of the Negotiable Instruments Act was filed by the applicant and a photocopy of the cheque was filed with the complaint whereas the original was returned to the applicant. During the pendency of the complaint, respondent called the applicant for compromise and thereafter he took the original cheque. Hence, at the time of evidence of the applicant, the original cheque could not be produced and therefore an application was moved for accepting the photocopy of the cheque 2 Mcrc.1067.2011 Akhilesh Rathore Vs. Rakesh Pathak as secondary evidence.
The trial court dismissed the application on the ground that the applicant could not prove the situation as to why the cheque was lost. However, it is admitted that there was a cheque issued in favour of the applicant which was produced before the Bank for its payment and it was dishonoured. The photocopy of the cheque is on record filed by the applicant along with the complaint hence if the applicant submits that now the cheque is lost then such a request should have been accepted by the trial court otherwise what was the reason so that the applicant would not have filed the original cheque at the time of evidence. The photocopy of the cheque filed along with complaint is not doubtful and in the absence of the original cheque, the applicant ought to have been permitted to lead the secondary evidence.
The learned JMFC, Gwalior (M.P.) has committed an error of law in refusing the application filed by the applicant. Consequently, it is a good case in which the inherent powers of this Court may be invoked in favour of the applicant. Accordingly, the present petition is allowed. The order dated 13.01.2011 passed by the JMFC, Gwalior, is hereby set aside and the application for secondary evidence filed by the 3 Mcrc.1067.2011 Akhilesh Rathore Vs. Rakesh Pathak applicant is hereby allowed. The trial court is directed to allow the evidence of the applicant on the photocopy of the cheque considering it as secondary evidence. Interim stay dated 23.02.2011 is hereby vacated.
A copy of the order be sent to the trial court to proceed further.
(N.K. Gupta) Judge pd