Madhya Pradesh High Court
Smt. Rita Semual vs B.K. Kurmi Judgement Given By: Hon'Ble ... on 16 January, 2014
1
Cr.R No.1464 of 2012
16.01.2014
Shri R.L.Shukla, counsel for the applicant.
Shri M.Safiqulla, counsel for the respondent.
The applicant/ accused has filed this revision under section 397/401 of the Cr.P.C being aggrieved by the order dated 23.6.12 passed by the JMFC, Jabalpur in complain case No.18635/07 filed by the respondent to prosecute the applicant under section 138 of the Negotiable Instrument Act on the strength of some cheque whereby application of the respondent under section 65 of the Evidence Act permitting him to adduce the secondary evidence with respect of the original cheque and other documents, has been allowed.
2. Applicant's counsel after taking me through the averments of the revision memo as well as the papers placed on the record along with the impugned order so also by referring some papers from his file argued that the impugned complaint was filed initially by respondent without annexing the original cheque and some documents through some counsel but at the stage of recording the evidence the impugned application was filed under section 65 of the Evidence Act contending that he had given all the original documents including the cheque in dispute to his counsel but subsequently such counsel had neither filed such documents in the court nor returned to the respondent and, inspite making efforts, such original documents were not given by the counsel to the respondent then he made complaint in this regard to the State Bar Council and some action was taken by such authorities against the concerning Advocate namely, Vivek Sachan and his registration has been suspended for five years and he has been debarred from practicing for further five years. But such application was allowed by the trial court without holding any inquiry with respect of aforesaid facts and in such premises the impugned order is not sustainable and prayed to dismiss the IA by setting aside the impugned order by allowing this revision.
3. After hearing the counsel, on perusing the available papers it is apparent that the original documents are not with the respondent and it is not 2 Cr.R No.1464 of 2012 the case that such original documents are with the applicant or some other person. As per allegations, the same are with the aforesaid counsel who did not return to the respondent. So, in such premises, the impugned application was filed by the respondent and the trial court taking into consideration such situation, after dismissing the objection of the applicant by allowing the application permitted the respondents to prove such documents through secondary evidence on the basis of the photocopy of the same placed on the record with the complaint.
4. In the available circumstances there was no any other option with the respondent except to prove his case on the basis of the secondary evidence and for which he has filed the impugned application, hence it is held that the same has been rightly allowed by the trial court. In such premises, I have not found any perversity, irregularity, illegality or anything against the propriety of the law in the order impugned. Consequently, this revision deserves to be and is hereby dismissed.
5. However, in the available circumstances, it is observed that while holding the trial and recording the evidence, the trial court shall extend every opportunity to the applicant to rebut the circumstances stated in the impugned application and to show that unless the original documents are produced on record such secondary evidence is not sufficient to adjudicate the matter on merits but the trial court is directed that on taking such objection either in the cross examination of the respondent's witnesses in the evidence adduced by the applicant then the same shall be considered by such court strictly in accordance with the procedure prescribed under the law either under section 65 of the Evidence Act or some other provision enacted in that regard.
C.C as per rules.
(U.C.Maheshwari) Judge MKL