Madhya Pradesh High Court
Mohit Lohiya vs Ram Niwas Sharma on 7 October, 2015
1
MCRC No.1685/2013
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SB: SHEEL NAGU, J.
MCRC No. 1685/2013
Mohit Lohiya
Vs.
Ram Niwas Sharma
Whether reportable :- Yes /No
__________________________________________________
For Petitioner : Shri D.K. Agrawal, Advocate.
For Respondent : Shri Arvind Dudawat, Advocate.
ORDER
(Delivered on this Day of 7th October, 2015) The inherent powers of this Court u/S. 482 of Cr.P.C. are invoked to assail the interlocutory order dated 18/01/2013 passed in Criminal Case No. 13033/2008 by Judicial Magistrate First Class, whereby an application of the complainant/ respondent u/S. 65 (c) of Indian Evidence Act, 1872 (1872 Act for brevity) for admitting secondary evidence (photo copy of the cheque, etc.) has been allowed by invoking clause (c) of Section 65 of 1872 Act.
2. Learned counsel for the petitioner-accused contends that original cheque in question was not filed along with complaint. Original cheque was also not available at the time 2 MCRC No.1685/2013 when cognizance of the offence was taken and charges were framed on 21/06/2011. It is submitted that an application was moved on 21/06/2012 u/S. 65(c) of 1872 Act seeking permission for admitting secondary evidence in the shape of photo copies of the cheque, bank memo, notice, receipt of notice and AD form. The said application it is contended is untenable as the basic per-requisites of section 65 (c) of 1872 Act were not followed. It is contended that to establish the existence, condition, or contents of original cheque and the other documents, the trial court merely on the basis of contents of said application u/S. 65
(c) of 1872 Act, treating the same as gospel truth, unlawfully allowed induction of this secondary evidence in evidence.
3. Learned counsel for the petitioner places reliance on various cases i.e. Aneeta Rajput (Smt.) Vs. Smt. Saraswati Gupta reported in 2012(3) JLJ 417, J. Yasoda Vs. K. Shobha Rani reported in (2007) 5 SCC 730, Ram Suresh Singh Vs. Prabhat Singh alias Chhotu Singh and Anr. reported in (2009) 6 SCC 681, Rashid Khan s/o Yasin Khan Musalman and Anr. Vs. State of M.P. and Ors. reported in 2011 (3) MPLJ 575 & Ratanlal s/o Bagdu Vs. Kishanlal s/o Mangilal & Ors. reported in 2012 (1) MPLJ 120.
4. Per contra, learned counsel for the complainant - 3 MCRC No.1685/2013 respondent supporting the order impugned herein contends that the trial court finding the pre-requisite of clause (c) of section 65 of 1872 Act to be satisfied rightly allowed the photo copy of the documents to be admitted as secondary evidence.
5. It is clear from reading of section 65 of 1872 Act that if one of the contingencies mentioned from Clause (a) to (g) are satisfied then the secondary evidence may be given of the existence, condition, or contents of a document.
6. In the instant case, admittedly the photo copies have been produced of the cheque, bank memo, notice, receipt of notice and AD form whose originals are stated on oath, in the application u/S. 65 (c), to be lost from the office of erstwhile counsel.
7. Clause (c) of section 65 of 1872 Act is reproduced herein below for convenience and ready reference, which read thus :-
"Section 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) xxxxxxxxxxxxx
(b)xxxxxxxxxxxxx
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents 4 MCRC No.1685/2013 cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;"
8. Bare reading of section 65 (c) of 1872 Act indicates that when the original is lost, as the case herein, for the reasons not attributed to the petitioner seeking to invoke Section 65(c) then such secondary evidence may be given of the existence, condition, or contents of a document.
9. In the instant case, the court below found that the application u/S. 65 (c) of 1872 Act was supported by an affidavit inter alia contending that original documents sought to be produced as secondary evidence which were handed to the erstwhile counsel have not been returned for having been lost from the office of the said erstwhile counsel. Thus it is evident that the reason assigned is not attributed to the complainant/respondent herein.
10. True, it is that the application u/S. 65 (c) of 1872 Act was preferred by the complainant/respondent belatedly, but that by itself does not preclude the Court from considering the same on merits.
11. The plea of bar contained in section 294 of Cr.P.C. for allowing such an application belatedly cannot come in the way of the trial court for the simple reason that section 294 of 5 MCRC No.1685/2013 Cr.P.C. does not provide any stage of trial beyond which an application for admitting the documents as secondary evidence on behalf of any parties cannot be considered. The statute having not provided any such bar, the same cannot be presumed or inferred to exist.
12. Learned counsel for the petitioner raises objection that cognizance of offence u/S. 138 of Negotiable Instruments Act was taken without complaint accompanied by original cheque in question. The issue regarding tenability of the order taking cognizance of the complaint filed by the respondent is not before this Court and therefore, no comment can be made.
13. This Court is of the considered view that the basic requirement of section 65 (c) of 1872 Act having been satisfied the trial court has exercised it's discretion by allowing the secondary evidence to be admitted. No miscarriage of justice is decipherable from the impugned order.
14. At this juncture it would be apposite to refer to the dictum laid down in the case of Shrimati Rani Haripria v. Rukmini Devi, [(1892) 19 Cal 438, 19 IA 79 (PC)], as recapitulated in Woodroff and Amir Ali's Commentary on Law of Evidence {19th edition at page 2636 & 2640}, which reads as under:-
"Whether or not sufficient proof of search for, or loss 6 MCRC No.1685/2013 of, an original document, to lay ground for the admission of secondary evidence, has been given, is a point proper to be decided by the judge of first instance and is treated as depending very much on his discretion. His conclusion should not be overruled, except in a clear case of miscarriage."
15. The decision in the case of Aneeta Rajput (supra) is of no avail to the petitioner since the same is based on factual matrix concerning section u/S. 65 (a) of 1872 Act and not section 65 (c) of 1872 Act. Moreover, the decision of the Apex Court delivered in the case of J. Yasoda (supra) is further inapplicable to the factual scenario herein as the said case before the Apex Court does not deal with any of the clause from
(b) to (g) of section 65 of 1872 Act as reflected from reading of para 9 of the said judgment. The decision of the Apex Court in the case of Ram Suresh Singh (supra) is of no avail to the petitioner as the said case does not lay down any law in regard to section 65 of 1872 Act. As regards Single Bench decision of this Court rendered in the case of Ratanlal(supra) the same is distinguishable on the fact as it relates to more of section 90 of 1872 Act and not in regard to section 65 of 1872 Act. Similarly the case of Rashid Khan (supra) is of no avail to the petitioner as the Court was not dealing with the factual background as is 7 MCRC No.1685/2013 available herein as original documents being lost for the reasons not attributed to the parties seeking to entrust secondary evidence.
16. In view of above, no ground for interference is made out in the order impugned passed by the trial court allowing the application preferred by the complainant u/S. 65(c) of 1872 Act.
17. Resultantly, the present petition u/S. 482 of Cr.P.C. deserves to be and is, therefore, dismissed.
(SHEEL NAGU) JUDGE (07/10/2015) Durgekar*