Telangana High Court
A Sudershan vs M/S Gowra Leasing And Finance Ltd on 8 June, 2020
Author: Shameem Akther
Bench: Shameem Akther
HON'BLE Dr. JUSTICE SHAMEEM AKTHER
Civil Revision Petition No.2933 of 2018
ORDER:
This Civil Revision Petition, under Article 227 of the Constitution of India, is filed by the petitioner/defendant No.3, challenging the order, dated 04.04.2018, passed in I.A.No.351 of 2018 in O.S.No.194 of 2012 by the I Additional Chief Judge, City Civil Court, at Secunderabad, whereby, the subject interlocutory application filed by the respondent No.1/plaintiff under Section 65(b) of Indian Evidence Act, 1872 (for short 'Evidence Act'), seeking permission to file the attested copy of the cheque bearing No.377941 dated 10.10.2011 for Rs.53,37,500/- drawn on Karnataka Bank Ltd., Rajbhavan Road Branch, Hyderabad, along with cheque return memo dated 18.10.2011, as secondary evidence, was allowed.
2. Heard Sri V.Ravichandran, learned Senior Counsel appearing for Sri Parsa Anantha Nageswar Rao, learned counsel for petitioner/defendant No.3, Sri K.K.Waghrey, learned counsel for the respondent No.1/plaintiff and perused the record.
3. Sri V.Ravichandran, learned Senior Counsel for the revision petitioner/defendant No.3 would contend that no foundation was laid by the revision petitioner/defendant to lead secondary evidence. Without there being original one, the photocopy of the cheque bearing No.377941 dated 10.10.2011 drawn on Karnataka Bank Ltd., Rajbhavan Road Branch, Hyderabad, along with cheque return memo dated 18.0.2011, cannot be received as secondary evidence. The Court below erroneously allowed the 2 Dr.SA, J CRP No.2933 of 2018 subject interlocutory application and ultimately prayed to set aside the order under challenge and allow the Civil Revision Petition as prayed for. In support of his contention, learned counsel relied upon the following decisions:
i) N. Solman Raju vs. Nurukurthi Veera Lakshmi1
ii) U.Sree vs. U. Srinivas2
4. On the other hand, Sri K.K.Waghrey, learned counsel for the respondent No.1/plaintiff has submitted that the Court below is justified in allowing the subject Interlocutory Application.
There is no material illegality in the order under challenge and ultimately prayed to sustain the order under challenge and dismiss the Civil Revision Petition. In support of his contention, learned counsel relied upon the following decisions:
i) Kaliya vs. State of Madhya Pradesh3
ii) Enkay Texofood Industries Ltd. and others vs. The State of Andhra Pradesh and others4.
5. In view of the above rival contentions, the point that arises for determination in this Civil Revision Petition is as follows:
"Whether the impugned order, dated 04.04.2018, passed in I.A.No.351 of 2018 in O.S.No.194 of 2012 by the I Additional Chief Judge, City Civil Court, at Secunderabad, in permitting the respondent No.1/plaintiff to file the attested photo copy of the cheque bearing No.377941 dt.10.10.2011 for Rs.53,37,500/- drawn on Karnataka Bank Ltd., Rajbhavan Road Branch, Hyderabad, along with cheque return memo dated 18.10.2011 as secondary evidence, is liable to be set aside?"
1
2018(1) ALD 652 2 (2013) 2 SCC 114 3 (2013) 10 SCC 758 4 2015 (2) ALD (Crl.) 290 (AP) 3 Dr.SA, J CRP No.2933 of 2018
6. POINT: The material placed on record reveals that the subject suit in O.S.No.194 of 2012 is filed by the respondent No.1/plaintiff for recovery of an amount of Rs.62,56,581/- from the respondents 2 and 3 herein/defendants 1 and 2 and petitioner herein/defendant No.3. It is the specific case of the respondent No.1/plaintiff that towards discharge of liability of the defendant No.1, the defendant No.3 being the guarantor, issued subject cheque bearing No.377491 dated 10.10.2011 drawn on Karnataka Bank Ltd., Rajbhavan Road Branch, for Rs.53,37,500/- to the plaintiff and on presentation of the said cheque, it was dishonoured. The attested photo copy of the said cheque dated 10.10.2011 and its return memo dated 18.10.2011 are pressed into service to substantiate the case of the plaintiff.
The reason for not filing the original cheque dated 10.10.2011 is that it was misplaced.
7. As per Section 65(c) of the Evidence Act, 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 can permit the party to lead secondary evidence. In view of the above proposition of law, there is no bar to receive the photo copy of the cheque dated 10.10.2011 and the cheque return memo dated 18.10.2011 as secondary evidence.
8. In N. Solman Raju's case (1 supra), relied upon by the learned counsel for the petitioner/defendant No.3, the erstwhile Common High Court for the States of Telangana and Andhra Pradesh, Hyderabad, held as follows:
4 Dr.SA, J CRP No.2933 of 2018 "Para 10: In the present case, a Photostat copy of the document was filed along with the complaint and on account of loss of document, subsequent to the filing of complaint in the office of present counsel appearing in the trial Court he could not produce the original and it is covered by Section 65 Clause
(c) of Indian Evidence Act. But a Photostat copy is inadmissible in evidence in view of judgment of Hon'ble Apex Court reported in U. Sree v. U. Srinivas (2013 (1) ALT 18 (SC) : (2013) 2 SCC 114). In paragraph Nos. 17 and 18 of the judgment the Hon'ble Apex Court held that admission of a document in evidence does not amount to its proof. Therefore, it is the obligation of the Court to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. In the case at hand, the learned Family Judge has really not discussed anything relating to foundational evidence.
The High Court has only mentioned that when the letter was summoned and there was a denial, the secondary evidence is admissible. In the considered opinion, such a view is neither legally sound nor in consonance with the pronouncements of the Supreme Court. If the principle laid down in the above judgment is applied to the present facts of the case a Photostat copy cannot be received and admitted in evidence as secondary evidence.
Para 13: xxxx... Therefore, declining to grant permission or leave to the petitioner to adduce secondary evidence i.e., receiving and marking of Photostat copy is in accordance with law. In view of the law declared by the Hon'ble Apex Court, a Photostat copy cannot be received as secondary evidence and merely because the document is filed along with the plaint, no authenticity can be attached to such document since Photostat copy is inadmissible as observed in U. Sree's case referred supra, therefore, declining leave by the trial Court cannot be faulted and consequently I find no grounds to reverse the finding given by the trial Court."
9. In Enkay Texofood Industries Ltd.'s case (4 supra), relied upon by the learned counsel for the respondent No.1/ plaintiff, the erstwhile Common High Court for the States of Telangana and Andhra Pradesh, Hyderabad, held as follows:
"Para 8: The Apex Court in the decision reported in Kaliya v. State of Madhya Pradesh happened to discuss about what has to be established by a party to seek production of 5 Dr.SA, J CRP No.2933 of 2018 secondary evidence under Section 65(c) of the Evidence Act. In that case which was a bride burning and death case, the original dying declaration recorded in the hospital could not be traced and upon the evidence of concerned doctors about misplacement of original dying declaration, a carbon copy of the dying declaration was allowed to be produced by the Courts below and approved by the Apex Court. In that context, Apex Court observed as follows:
"10. Section 65(c) of the Act 1872 provides that secondary evidence can be adduced relating to a document 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 is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence. (Vide: H. Siddiqui (dead) by L.Rs. v. A. Ramalingam MANU/SC/0174/2011 : AIR 2011 SC 1492; and Rasiklal Manikchand Dhariwal and Anr. v. M.S.S. Food Products (MANU/SC/1408/2011 : (2012) 2 SCC 196). However, the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non- production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. Further, mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law.
a) From the above decision it is clear that before a party is eligible to produce secondary evidence under Section 65(c), he has to account for the non-production of original document in one of the ways envisaged in that section i.e. he has to prove before the Court that the original is not in his possession or control as it was lost and that he has done what could be done to procure the production of it. Thus, he has to lay a factual foundation to establish the right to give secondary evidence. It can also be learnt from the above decision that mere admission of the secondary evidence does not amount to its proof but it is required to be proved in accordance with law."
Para 9: Coming to the instant case, the complainant seeks to adduce secondary evidence under Section 65(c) of Evidence Act on the plea that the original cheque filed in Court and taken 6 Dr.SA, J CRP No.2933 of 2018 return by his counsel was misplaced and lost in his hands. Hence, the questions are whether the complainant could satisfactorily establish firstly, that he in fact, filed the original cheque in Court and secondly, that the said cheque was replaced with an exact copy by his counsel and taken return of the same and lost."
10. There cannot be any dispute with regard to the preposition 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 7 Dr.SA, J CRP No.2933 of 2018 leave to receive the subject documents. There is no material illegality found in the impugned order. This Civil Revision Petition is devoid of merits and is liable to be dismissed.
11. In the result, the Civil Revision Petition is dismissed. No order as to costs.
Miscellaneous Petitions, if any, pending in this revision, shall stand closed. No order as to costs.
______________________ Dr. SHAMEEM AKTHER, J Date: 08th June, 2020 scs