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Andhra Pradesh High Court - Amravati

Dasari Sreeramulu, Visakhapatnam vs State Of A.P., Rep. By P.P. Another on 10 August, 2022

Author: K. Sreenivasa Reddy

Bench: K. Sreenivasa Reddy

  THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY

            CRIMINAL PETITION NO.1126 OF 2017

ORDER:

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This Criminal Petition is filed to quash the order dated 17.11.2016 in Crl.M.P. No.5235 of 2016 in C.C. No.443 of 2014 on the file of the II Additional Metropolitan Magistrate, Anakapalle.

2. A private complaint has been filed by the petitioner against 2nd respondent before the learned Judicial Magistrate of First Class, Anakapalle for the offence punishable under Section 420 IPC and 82 of the Registration Act, 1908, and the same was referred to police under Section 156 (3) CrPC. On the strength of the same, police registered a case in crime No.120 of 2011 of Parawada police station, Visakhapatnam city and after completion of investigation, filed the charge sheet for the aforesaid offences. Pending trial, Crl.M.P.No.5235 of 2016 was filed by the prosecution, under Section 242 (2) CrPC stating that the investigating officer did not file the following documents.

(1) Certified copy of document No.4934/1978, dated 23.01.2006 issued by the Joint Sub Registrar, Anakapalle, Visakhapatnam.

(2) Photo stat copy of the sale deed No.4934/1978 duly attested. Executed by the Visakha Valley Building Society, Visakhapatnam 2 in favour of Devarasetti Kesava Rao, s/o. Kamayya.

(3) Certified copy issued by Joint Sub- Registrar, Sabbavaram, dated 17.12.2015 relating to document 2292/1998.

(4) Certified copy issued by the Joint Sub- Registrar, Sabbavaram relating to document No.1973/1994 dt 23.12.2015.

(5) Photostat copy of the document No.1973/1994 registered in the office of Sub- Registrar, Sabbavaram, Visakhapatnam.

(6) Encumbrance certificate issued by the Sub-Registrar, Sabbavaram relating to document No.1973/1994 Dt. 17.01.2016.

(7) Layout plan of house sites in Survey No.153, Lankelapalem, prepared by V.R. Gupta Visakha Vally Building Society, Visakhapatnam.

(8) Intimation given by disciplinary committee of the Bar Council of India, New Delhi, dated 30.05.2015 relating to case No.09/2014 sent to D.Sreeramulu.

(9) Letter No.R.O.C./DC 100 of 2013 relating to the complaint case No.58/2012 Dt. 12.02.2013 and its enclosures regarding issues framed by the Bar Council of State of Andhra Pradesh, Hyderabad.

(10) Xerox copy of General Power of Attorney executed by V.R. Gupta, President, Visakha Vally Building Society Visakhapatnam in favour of V.Narayana Murthy his son and registered at SRO, Dwarakanagar, Visakhapatnam as document No.43/91.

It is stated in the petition that in connection with the said case, P.W.1 handed over original lay out plan including all relevant documents, but these documents have not been filed by the concerned advocates with the competent authority nor returned the documents which were given by P.W.1. It is further stated that in respect of the same, P.W.1 lodged a complaint before the Bar Council of Andhra Pradesh against the abovesaid counsel for professional misconduct and subsequently the said case was transferred to the Bar Council of India, New Delhi in Case No.B.C.I. TR No.09/2014, and because of the said reason, P.W.1 could not submit to the Court the original sale deed along with lay out plan executed by the accused as G.P.A. holder and representative of the above said society in favour of P.W.1.

It is further stated that the abovesaid documents are essential to prove the case, and in view of the abovesaid reason, primary evidence is not available, and in the absence of primary evidence, secondary evidence may be taken into consideration by the Court under Section 65 of the Indian Evidence Act, 1872.

3. Vide impugned order dated 17.11.2016, the trial Court partly allowed the petition permitting to exhibit original encumbrance certificate through evidence of P.W.1 4 and dismissed the petition, so far as exhibiting of photostat copies of various documents. Against the said order, the present Criminal Petition is filed.

4. Heard and perused the record.

5. On a perusal of the record shows that the petitioner herein filed a complaint as against the counsel concerned, before the Bar Council of Andhra Pradesh to take necessary action for not filing the original documents handed over by him. Admittedly, the said complaint was referred to the Bar Council of India vide Case No.B.C.I. TR No.09/2014. It is admitted fact that the petitioner has shown bona fides that he handed over the original documents to the advocate, and because of the negligent attitude of the advocate, the petitioner resorted in filing the complaint against the said advocate.

6. It is the specific case of the petitioner that since he would not produce the original documents, he had to obtain certified copies thereof and produce the same before the Court below. This Court, after perusing the entire records, feels that the reasoning given by the petitioner is authentic and the petitioner be permitted to obtain certified copies of the documents mentioned above and produce the 5 same before the Court below. My view is fortified by the following decisions :

(a) In A.Sudershan v. Gowra Leasing and Finance Limited,1 it is held thus: (paragraph 10).

"10. There cannot be any dispute with regard to the proposition of law laid down in the aforementioned decisions. In the instant case, the original cheque dated 10.10.2011, which is said to have been issued by the defendant No.3 towards discharge of debt of defendant No.1, is misplaced. There is no bar to permit to file the photo copy of a document as secondary evidence. The relevancy of the documents in question is a matter of concern before permission is granted to lead secondary evidence. The attestation made by the banker on the documents in question without verification of the original would not disable the Court from receiving the said documents. Even if secondary evidence is permitted to be lead, it will not amount to waiving the proof of the subject documents. The contention raised before this Court by the learned Senior Counsel for the revision petitioner that the photo copy/attested photo copy of a document cannot be received as secondary evidence, is unsustainable. The attested photo copy of the cheque dated 10.10.2011 and the cheque return memo dated 18.10.2011 are relevant for determination of the issues in the subject suit. The respondent No.1/plaintiff has laid sufficient foundation to receive the attested photo copy of the cheque dated 10.10.2011 and the cheque return memo dated 18.10.2011 as secondary evidence. The documents in question are required to be proved in accordance with law. The Court below had elaborately dealt with this matter and granted leave to receive the subject documents. There is no material illegality found in the impugned order. This 1 2020 (6) ALD 452 (TS) 6 Civil Revision Petition is devoid of merits and is liable to be dismissed."

(b) In N.Solman Raju v. Nurukurthi Veera Lakshmi,2 it is held thus: (paragraphs 9, 10 and 11).

"9. Section 65 of Indian Evidence Act permits secondary evidence. According to clause (a) of Section 65 of Indian Evidence Act, 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, the Court may grant leave to adduce secondary evidence. Clause (c) of Section 65 of Indian Evidence Act further contemplates that 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, the Court may permit to adduce secondary evidence.

10. What is secondary evidence is defined under Section 63 of Indian Evidence Act, which includes certified copies given under the provisions hereinafter contained, copies made from the original by mechanical process which in themselves ensure the accuracy of the copy, and copies compared with such copies, copies made from or compared with the original, counterparts of documents as against the parties who did not execute them and oral accounts of the contents of a document given by some person who has himself seen it."

(c) In Gonepalh Rajamallaiah v. Ragipalli Rajaram @ Pedda Rajaram @ Rajamreddy and others,3 wherein it is held thus: (paragraph 11).

2020 (6) ALD 452 (TS) 7 "Though a sale deed is a private document made by private individuals, its record is kept in public office in order to facilitate the public to have access to it. Such records of private documents kept in public office are regarded as public documents. The record of a registered sale deed kept in the Subregistrar's office is public record under Section 74(2) of Act of 1872. Section 51 of Act of 1908 provides for maintenance of certain books, which are meant for entering or filing different documents. In Book 1 maintained under the said section, the registered sale deeds will be entered. Section 57 of the said Act of 1908 authorizes the Registering Officer to allow inspection of the said book No.1 kept in the office and to give copies of entries in the said book to all persons applying for such copies. Thus, Section 74(2) of Act of 1872 has an obvious reference to the records kept under the provisions of Act of 1908. Under Section 76 of Act of 1872 every public officer having custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such copies so certified shall be called certified copies. Under Section 65 (d) of Act of 1872 when the original is a public document within the meaning of Section 74 of the said Act, secondary evidence may be given. Under Section 65(f), when the original is a document of which a certified copy is permitted to be given in evidence, secondary evidence may be given. As already noted, the sale deed entered in Book 1 maintained by the Registrar's office is a public document. The Sub Registrar concerned, who maintains the said book is competent to give a certified copy of the sale deed entered in the said book. The plaintiff produced CC of 3 2020 (6) ALD 452 (TS) 8 the registered sale deed given by the Sub Registrar from the said Book 1 maintained in the office of Sub- Registrar. Therefore, CC of the registered sale deed can be permitted to be filed as secondary evidence of the original sale deed, which is lost and which is not traceable. Further, Section 65(c) of Act of 1872 says that when the original has been lost, secondary evidence may be given. In cases covered by clause (e) or

(f) of section 65 of the Act of 1872 certified copy of the document is admissible in evidence. Therefore, CC of the registered sale deed can be permitted to be filed, it being secondary evidence of the registered sale deed, which is lost. In fact, the law is well settled that the certified copy of a registered sale deed can be produced as secondary evidence in the absence of the original."

7. In view of the foregoing discussion, the Criminal Petition is allowed, setting aside the impugned order.

Consequently, Crl.M.P. No.5235 of 2016 in C.C. No.443 of 2014 on the file of the II Additional Metropolitan Magistrate, Anakapalle stands allowed.

Miscellaneous Petitions, if any, pending in this Criminal Petition, shall stand closed.

___________________________________ JUSTICE K. SREENIVASA REDDY 10.08.2022.

DRK 9 THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY CRIMINAL PETITION NO.1126 OF 2017 10.08.2022.

DRK 10