Madhya Pradesh High Court
Raj Vishwakarma vs Jabalpur Sahkari Dugdh Sangh ... on 16 January, 2020
Author: B. K. Shrivastava
Bench: B.K.Shrivastava
1
HIGH COURT OF MADHYA PRADESH, JABALPUR
SINGLE BENCH: BEFORE HON'BLE SHRI JUSTICE
B.K.SHRIVASTAVA
MCRC NO.38649/2019
(RAJ VISHWAKARMA AND OTHERS Vs JABALPUR SAHKARI DUGDH SANGH)
MCRC NO.38831/2019
(RAJ VISHWAKARMA AND OTHERS Vs JABALPUR SAHKARI DUGDH SANGH
(REGISTERED COOPERATIVE SOCIETY)
MCRC NO.38642/2019
(RAJ VISHWAKARMA AND OTHERS Vs JABALPUR SAHKARI DUGDH SANGH)
MCRC NO.39804/2019
(RAJ VISHWAKARMA AND OTHERS Vs JABALPUR SAHKARI DUGDH SANGH
(REGISTERED COOPERATIVE SOCIETY) KARONDA NALA IMALIA)
Shri Satyam Agrawal, learned counsel for the petitioners.
Shri Pranay Gupta, learned counsel for the respondent.
ORDER
(16.01.2020)
1. These four petitions have been filed under section 482 of CrPC on 12.9.2019.
2. The respondent has filed 4 criminal cases against the petitioners bearing Case Nos.5708/2014, 5710/2014, 5709/2014 and 5707/2019 before the Court of Judicial Magistrate First Class, Katni under section 138 of Negotiable Instruments Act. The cases were based on the cheques issued by the petitioners and the aforesaid cheques could not encash because of insufficient fund. The complainant also issued the notice to 2 the respondent but the payment has not been made.
3. During the pendency of the aforesaid criminal cases, the complainant filed an application under section 65 of the Evidence Act, 1872. It is stated in the application that the original postal receipt along with the written envelope has been misplaced. The aforesaid documents were submitted with the complaint and after comparison from the copies, the documents were returned to the counsel for complainant. The documents were in possession of the counsel but after several efforts, the counsel could not trace out the postal receipt and the written envelope. The documents have been misplaced in the various files of the office of counsel. Therefore, the complainant seeks permission to prove the aforesaid postal receipt and written envelope by the help of secondary evidence.
4. Accused/petitioners filed the reply before the trial court and the trial court/JMFC dismissed that application on 23.4.2019. Against the aforesaid order passed in all 4 cases, the complainant preferred 4 criminal cases bearing Criminal Revision Nos.77/2019, 78/2019, 79/2019 and 80/2019 before the Sessions Court. Fifth Additional Sessions Judge, Katni vide order dated 28.8.2019 allowed all revisions and set aside the order passed by the Judicial Magistrate First Class, Katni. The Court granted the permission under section 65 of the Evidence Act to produce the secondary evidence of aforesaid 2 documents.
5. It is submitted by the counsel for petitioners that order passed by the trial court was justified but the revisional court committed the mistake by allowing the aforesaid revisions. There is no any proof that the original documents were submitted before the trial court and they were returned after comparison from the photocopies. Therefore, it is requested that the order passed by the revisional Court be set aside and the order passed by the Judicial Magistrate First Class be affirmed.
36. On the other side, the respondent submitted that the revisional Court did not commit any mistake by passing the order dated 28.8.2019. The documents are the substantive piece of evidence. The party cannot deny for granting justice only upon the basis of some technical grounds. The documents were submitted at the time of filing the complaint and all documents were returned to the counsel after the comparison from original and by replacing from the photocopies. Therefore, it is prayed that the petition having no any force of law and is liable to be dismissed.
7. It appears from the order of revisional Court that the Court referred the case of Smt. Rita Semual Vs. B.K.Kurmi (order dated 16th January, 2014 passed in Criminal Revision No.1464/2012) and also referred the case of Abdul Salam Qureshi Vs. Dayanand Jaiswal (order dated 17th January, 2014 passed in Criminal Revision No.1991/2012). After referring the aforesaid 2 judgments, the Court held in Para 13 and 14 as under :-
"13. This Court has taken note of and in fact, swayed with this fact that if the opportunity of adducing secondary evidence of the Revisionist/Complainant is foreclosed at the threshold, it shall collapse its entire case for the reasons as spelled out in supra paras no.7 and 8 and by virtue of which the present trial proceedings shall reduce into a bare paper formalities and if it is allowed to remain as such, it shall, indisputably, result into gross miscarriage of justice for the Revisionist/Complainant. Even otherwise, it is admitted position of the case in question that the Original documents were produced before the Trial Court at the time of registration of case in hand;
14. In view of the aforesaid conspectus of factual matrix and settled legal principles, in the considered opinion of this Court, the impugned order of the Trial Court dt. 23.04.2019 dismissing the Application filed u/s 65 of the Evidence Act by the Revisionist, does not appear to have passed the test of correctness and proprietary and therefore, the same is not sustainable in law and hence, the Impugned Order is set aside by allowing the present Revision Petition to allow the Revisionist/Complainant to adduce secondary evidence qua the postal receipt and returned postal envelop;"4
8. Counsel for petitioners cited Rakesh Mohindra Vs. Anita Beri & Ors., 2016 (II) MPJR (SC) 137. In this case the Supreme Court observed that a document is required to be proved by the primary evidence and in the absence of primary evidence, the document can be proved by secondary evidence. The pre-condition for leading secondary evidence is that the party could not produce the document inspite of the best efforts and its production is beyond control of the party. Before adducing the secondary evidence, the party has to lay factual foundation to establish the right to give secondary evidence. The Court said in Para 17 :-
"17. The pre-conditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted."
9. In the aforesaid case of Rakesh Mohindra (supra) the Supreme Court also observed that the photocopy of the document brought from the record and proved by the witness, is sufficient to prove it. The Court said in Para 24 is under :-
"24. After considering the entire facts of the case and the evidence adduced by the appellant for the purpose of admission of the secondary evidence, we are of the view that all efforts have been taken for the purpose of leading secondary evidence. The trial court has noticed that the photocopy of the Exhibit DW-2/B came from the custody of DEO Ambala and the witness, who brought the record, has been examined as witness. In that view of the matter, there is compliance of the provisions of Section 65 of the Evidence Act. Merely because the signatures in some of the documents were not legible and visible that cannot be a ground to reject the secondary evidence. In our view, the trial court correctly appreciated the efforts taken by the appellant for the purpose of leading secondary evidence."5
10. In the case of M.Chandra Vs. M.Thangamuthu and another, AIR 2011 SC 146=(2010) AIR (SCW) 6362=(2010) 9 SCC 712, the Court observed in Para 30 that :-
"30................We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasized that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party............"
11. In the case of Rita Samual Vs. B.K.Kurmi, 2014 (2) DCR 518=2014 STPL 4998 (MP) (Judgment dated 16.1.2014 passed in Criminal Revision No.1464/2012), the complaint was initially filed without annexing the original cheque and some documents. At the stage of recording of the evidence, the application under section 65 of Evidence Act was filed. It was stated that the complainant 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 of making efforts, such original documents were not given by the counsel to the complainant, then he made complaint against the Advocate to the State Bar Council and the Bar Council suspended the licence of Advocate for practicing for the period of 5 years. In the aforesaid situation, the Court gave the permission to adduce the secondary evidence. The Court observed in Para 4 and 5:-
"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 6 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."
12. The case of Narsingh & Ors. Vs. Shripat Singh & Ors. (2014) 5 MPHT 203 = (2014) 4 MPLJ 578= (2014) 3 MPWN 2005= ILR(2016) MP 414 has been cited by both parties. In this case, the Court referred the Sections 63 and 65 of the Evidence Act and thereafter said in Para 7 and 8 as under :-
"7. Section 63 makes it clear that only such copies which are made from the original by mechanical process and which were compared with the original can be treated as secondary evidence. The secondary evidence itself must be of the nature described in Section 63. The photocopy of a document will not be admissible under Section 63 unless it is shown that it had been made from or compared with the original. Another aspect emanates from Section 65 (c) on which heavy reliance is placed by Shri Santosh Agrawal. A plain reading of the said provision shows that secondary evidence is permissible when original has either been 'destroyed' or 'lost'. This aspect is dealt with in Halsbury law in the following manner:-
"Where a document has been lost or destroyed, secondary evidence of its contents is admissible. The court must be satisfied that the document existed, that the loss or destruction has in fact taken place and that reasonable explanation of this has been given. Thus, a bona fide and diligent search must have been made in the place where the instrument would most properly be found, but not necessarily in every possible place; nor need the search 7 have been made recently or for the purpose of the cause."
8. Thus, one has to establish that the photocopy is of a document which actually existed. For this purpose, there must be sufficient proof of the search for the original to render secondary evidence admissible. It must be established that the party has exhausted all resources and means in search of the documents which were available to him. In the present case, the petitioner has not made any efforts to obtain certified copy of the resolution dated 12.6.2004 from the Gram Panchayat. No copy under the Right to Information Act, 2005 is also prayed for. No complaint regarding alleged loss of said document to the higher authorities is placed on record."
13. Therefore, it appears from the aforesaid case law that the Court should be liberal at the time of granting the permission of adducing the secondary evidence. If it is found that the refusal of aforesaid permission would collapse the entire case of the complainant, then the Court should permit the production of secondary evidence.
14. In the present case, the complainant has filed the complaint under section 138 of the Negotiable Instruments Act. It is mandatory requirement for the aforesaid offence that after receiving the information of dishonour of cheque, notice should be given to the accused for demanding the money. If the accused did not pay the aforesaid money within 15 days from the date of receiving the notice, the complainant may file the complaint. In Para 5 of the complaint, it is mentioned that :-
"5. The complainant thereafter issued a legal notice of demand dated 4.10.2013 through his counsel to the non-applicants at the addresses available in complainant's records (The Non-applicant No.1 had given his two different addresses) and demanded the amount of said cheque through the registered post, directing non-applicants to pay the amount of cheque in question within 15 days from the date of receiving the said demand notice. Though the non-applicants have received the said demand notices on 7.10.2013 and refused to accept it but even after expiry of 15 days time which has ended on 23.10.2013, non-applicants did not make the payment and hence thereby committed offence under section 138 of Negotiable Instruments Act 1881."8
15. It is appeared from the first ordersheet of the trial court that the following documents were submitted with the complaint:-
(a) Cheque
(b) Memo of dishonour of cheque
(c) Notice
(d) Postal receipt of notice It is also mentioned in the first ordersheet that the original documents have been returned to the complainant after taking the receipt thereof. It is submitted by the counsel for petitioners that the postal receipt and the envelope have been misplaced from the office of the Advocate. The photocopy of the postal receipt is bearing the number of receipt, therefore, other party is in position to verify the genuineness of aforesaid receipt. It is also appeared that the original receipt was returned after comparison. Copy of the aforesaid receipt was with the record and only original copy was returned. It is also appeared that the envelope, which was received unserved with the remark of refusal, was not submitted with the complaint but the counsel submitted that the aforesaid envelope was also with the Advocate and had been misplaced from his office. If the postal receipt is proved, then it may be presumed that the notice has been served subject to condition that the service report has not been received within 30 days from the sending of the aforesaid article. Therefore, postal receipt is necessary to prove the sending of notice to the accused. It is also appeared from the record that the accused did not pay any amount to the complainant even after filing the complaint and after receiving the notice of complaint. Therefore, proof of refusal of notice is a mere formality.
16. Even then the revisional Court also protected the right of petitioners and said in Para 15 as under:-
"15. Before parting with the case, it would be apt to add that at the time of adducing the secondary evidence by the Revisionist on the above mentioned any of the documents, the non- applicants/accused herein shall be at liberty to cross-examine the 9 every witness of the respondent regarding existence and the custody of the original documents and why such intimation was given to the court at belated stage. They shall also be at liberty to challenge the documents and its execution on the basis of the available circumstances. Besides this, they shall be at liberty to adduce the evidence in this regard on their own behalf in support of their defence. But the Ld.Trial court shall consider such evidence strictly in accordance with the law and procedure prescribed in this regards;"
17. Therefore, looking to the aforesaid all circumstances in view of this Court the revisional Court did not commit any mistake by granting the permission to adduce the secondary evidence of postal receipt and the envelope. Both documents are the important documents and may help the complainant to prove his case. Opportunity of disproving is also available with the petitioners and the right of petitioners has already been protected by the revisional Court in Para 15. Therefore, no any perversity, irregularity or illegality is found to interfere in the order passed by the revisional Court.
18. Hence, all petitions are hereby dismissed.
(B.K.SHRIVASTAVA) JUDGE TG/-
Digitally signed by TRUPTI GUNJAL Date: 2020.01.17 13:30:34 +05'30'