Madhya Pradesh High Court
Balkrishna Chourasiya vs Rajesh Vaidhya on 9 November, 2016
1
M.Cr.C.No.15002/2016
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
AT JABALPUR
(SINGLE BENCH : HON'BLE SHRI JUSTICE J.P.GUPTA)
M.Cr.C. No.15002/2016
Balkrishna Chourasiya
Vs.
Rajesh Vaidhya
Shri Sachin Jain, Advocate for the applicant.
None for the respondent though served and represented.
Whether approved for reporting : (Yes/No).
O R D E R
( .11.2016) This petition under Section 482 of Cr.P.C has been filed by the applicant for permitting to file a photocopy of the original document as a secondary evidence before the trial Court and further provide assistance to call for the records of the concerned bank account of the accused/respondent and record of the service of notice from the post-office, Sagar.
2. In brief, the relevant facts of the case are that the applicant has filed a complaint against the respondent under Section 138 of N.I. Act which was registered as a complaint case No.4754/2012 in connection with dishonor of cheque of the amount of Rs. 11,50,000/-, in which it is also stated the original cheque dated 20.05.2012 along with other original documents were stolen from the shop of the applicant on 30.08.2012, in respect of which on 31.08.2012, an FIR bearing Crime No.330/2012 was also lodged at Police Station Kotwali, Sagar.
2 M.Cr.C.No.15002/20163. In view of the facts during the trial, the applicant filed an ap- plication under Section 65 of the Evidence Act for permitting him to tender a photocopy of the original documents, which were stolen on 30.08.2012, as secondary evidence. That application was allowed vide order dated 07.08.2014 by the Trial Court. The said order was challenged by way of Cr. Revision No.250/2014 before the learned Second ASJ, Sagar. The Second Additional Sessions Judge vide or- der dated 6.12.2014 allowed the Cri. Revision No.250/2014 and set aside the order of the trial court with the direction to decide the ap- plication under section 65 of the Evidence Act after giving opportu- nity of being heard to the parties and taking into consideration the principles enunciated in the case of Hazi Mohd Islam V. Ajgar Ali, 2007 AIR MP 157.
4. The trial Court vide order dated 04.09.2015 after hearing the parties dismissed the aforesaid application. Thereafter, another ap- plication filed by the applicant for calling the record from the Bank of Baroda, Sagar, regarding account of the respondent and record relating to service of notice from the Post Office, Sagar and record relating to FIR lodged by the applicant regarding the stolen docu- ments. The said application was also rejected by the trial Court vide order dated 21.03.2016. Again, the applicant filed an application on 18.04.2016 for permitting to produce a photocopy of the documents as secondary evidence. The said application was also rejected on 20.06.2016. Against the aforesaid orders dated 21.03.2016 and 20.06.2016, the applicant filed revision before the Additional Ses- sions Judge, Sagar. The said Cri.Revision was also rejected by order dated 08.08.2016 passed in Cri. Revision No. 1300353/16 and 3900173/16. Being aggrieved with the order passed in aforesaid Cr.Rev., this petition has been filed.
5. None appeared on behalf of the respondent even though served and represented.
3 M.Cr.C.No.15002/20166. Having heard the contention advanced by the learned counsel for the applicant and on perusal of record, following questions emerged for consideration:-
1. Whether, the photo-state copy of any relevant document whose original copy is lost, can be admitted as a secondary evidence ? If yes, then under what circumstances such per-
mission can be given ?
2. Whether, refusing to call for the record from the bank and post office or Police Station and relevant witnesses is con- trary to law or causing miscarriage of justice ?
7. The circumstances under which secondary evidence may be given of existence, condition or content of the documents have been enunciated in Section 65(c) of the Indian Evidence Act. It is stated that when the original document is destroyed or lost, secondary evi- dence may be given with regard to such document.
8. Section 63 (2) of Evidence Act prescribes that the copies made from the original by mechanical process which in themselves ensure the accuracy of the copy comes in the purview of secondary evi- dence. A document in the form of photocopy is a product of me- chanical process and, if it is prepared from the original document then it comes into the purview of secondary evidence. Therefore, a photocopy which is prepared from the original by mechanical process comes in the purview of secondary evidence as defined un- der Section 63 (2) of the Evidence Act.
9. In case of Hazi Mohd. Islam Vs Ajgar Ali, 2007 AIR MP 157 on which the learned Lower Court has placed reliance, has not laid down the law that photo-state copy cannot be admitted as a secondary evidence in any case. Factual aspect of the aforesaid case is totally different from the present case.
10. In the aforesaid case, permission to admit photocopy of the original document as a secondary evidence was sought on the 4 M.Cr.C.No.15002/2016 ground/circumstances mentioned in the Section 65 (a) of the Evi- dence Act and looking to the requirement of the aforesaid provision, it is observed that:
" The document that has been sought to be tendered as a secondary evidence is neither a certified nor a true copy indicating endorsement. The document does not meet with the requirement of Section 65 of the Evidence Act."
11. In view of the aforesaid finding, the order refusing permission for admitting photocopy as a secondary evidence was confirmed; the factual matrix of the present case is different; it is based on the ground of Section 65 (c) of the Evidence Act, therefore, the aforesaid case is not applicable in the present case. Application of the appli- cant relating to permission for producing as a secondary evidence cannot be disposed of on the basis of aforesaid case law as it does not attract in this case. Learned Court below relied wrongly.
12. This Court in case of Ranchhod Lal Vs. Bheru Lal 2001 (II) MP weekly notes Page 13 has laid down that the original di- ary maintained by the pleader is not traceable and it is lost. As such, the applicant is entitled to lead secondary evidence to prove relevant entries made in the photostate copy of the diary maintained by the pleader. The Trial Court has committed illegality in rejecting the prayer of the applicant of permitting to produce secondary evidence of the photostate copy of the entries.
13. Similarly, in the case of Dr. Harish Chand Pipariya Vs. Mukesh Kumar Kushwaha 2002 II MP Weekly Notes Page 81 has laid down that now it is well settled by the series of the judgment of this Court that a photostate copy is covered under Sec- tion 63 of the Evidence Act under the head "prepared by mechanical process." In case of Smt. Rajantabai S.Parihar Vs State of MP. 2007 Cri. L.J. 2495 it is held that the photostate copy of the dying declaration can be used as a secondary evidence in view of the provision of Section 63 and 65 of the Evidence Act. This Court in 5 M.Cr.C.No.15002/2016 case of Mohit Lohia Vs Ram Niwas Sharma unreported case passed in M.Cr.C No. 1685/2013 dated 07.10.2015 and Akhilesh Rathore Vs Rakesh Pathak in M.Cr.C. No. 1067/11 dated 12.05.2016 it is held that if the original cheque is lost then photo- state copy may be admitted as a secondary evidence.
14. Moreover, illustration to Section 63-A clearly says that the photocopy of the document is admissible as a secondary evidence. Apart from aforesaid judgment of this court, in case of Smt.Ratan Sharma Vs. Ambesedar Drycleaners and others, AIR 1997 Rajasthan 75, it is held that under Section 63 (2) of the Evidence Act, photostate copy of the document is admissible as a secondary Evidence. In Case of L.S. Sadapopan (died) and Anr. Vs K.S Sabarinathan AIR 2002, Madras Page 278 it is held that pho- tocopy of an agreement could be admitted as a secondary evidence in a suit for specific performance if original is in possession with de- fendant vendor and copy given to the plaintiff vendee lost as provid- ed under Sections 63 (2) and 65 C of the Evidence Act.
15. In view of the aforesaid legal position, there is no doubt or hesitation to hold that a photo-state copy of original document pre- pared by mechanical process shall be considered as a secondary evi- dence. It comes in purview of secondary evidence as provided in Section 63 (2) of Evidence Act.
16. Now the question is under what circumstances a document in the form of photo-state copy can be permitted to lead as a secondary evidence in place of original document which is lost. In this connec- tion, reference of the judgment of the Apex Court in case of J. Yashoda Vs .K Shobha Rani (2207) 5 SC 730 which is noticed earlier judgment in case of Ashok Dulichand Vs. Madhavlal Dube and another 1975 SCC 664 would be profitable in which it is held that in order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be proved by primary evidence. Section 65, however permits secondary evi-
6 M.Cr.C.No.15002/2016dence to be given of the existence, condition or contents of docu- ments under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or oth- er of the cases provided for in the Section.
17. This Court in case of Aneeta Vs. Saraswati 2012 (4) MPLJ, 561 has observed in Para 12 as under:
( 12 ) So far as the applicability of Clause (2) of Section 63 of Evidence Act placed reliance by the learned counsel fo the petitioner is concerned, according to me, it can be said that by some mechanical process a photocopy of original receipt was obtained, but, there cannot be any surety of its correctness and accuracy in absence of sup-
porting material on record. Again in this regard there is no averment in the application that the photocopy which has been obtained by mechanical process was never tam- pered and it ensures its accuracy. Even if accurate photo- copy is obtained by a mechanical process, it is a matter of common parlance that after inserting some words on a document which is already a photocopy and by interpo- lating the same, another photocopy of the said interpolat- ed photocopy may be obtained and thus the accuracy of photocopy is always surrounded by dark clouds of doubt. In the present case since there is no averment in the ap- plication under Section 65 that photocopy was compared with the original and it is an accurate photocopy of the original and further by not filing any affidavit of person who obtained the said photocopy is on record, it is diffi- cult to hold the hallmark and authenticity and accuracy of the photocopy.
7 M.Cr.C.No.15002/201618. In view of the aforesaid case law, first of all it is must for the party who seek permission to lead the secondary evidence to prove prima facie that there was an existence of the original and the same has been lost or destroyed and other original copy is also not in exis- tence. Thereafter, the party concern is also required to establish prima facie that the photocopy has been prepared from the relevant original document by mechanical process. In this regard it has to be explained as to what was the circumstances under which the photo- state copy was prepared and who was in possession of the original document at the time when photostate copy was prepared, and by whom or under whom direction and presence it was prepared. The party may seek permission with a view to establish prima facie the aforesaid facts and submit an affidavit or other relevant document for satisfaction of the Court and the Court after considering the affi- davit or other relevant document on satisfaction may allow the pho- tostate copy of original document as secondary evidence. In absence of aforesaid satisfaction or reasonable suspicion about the genuine- ness of the photocopy of the original document the Court may disal- low the prayer.
19. Here, it is also clear that a photocopy of the original document is not admissible as secondary evidence. It requires comparison with the original copy of the document as provided in section 65 of the Act, as it cannot be treated as a secondary evidence in view of the provision of Section 63 (2) and Illustration (b) of Evidence Act.
20. In the aforesaid background of the legal position, it is seen that whether in the present case, the applicant is entitled to lead sec- ondary evidence as a photostate copy of the lost original document. On perusal of the record, it appears that the original cheque, postal receipt and copy of the endorsement of the bank have been lost. In this regard the applicant has lodged an FIR in the concerned Police Station and this fact has also been mentioned in the complaint itself; therefore, so far as requirement of Section 65 C of the Evidence Act is concerned, in this case, the applicant has fulfilled or prima facie 8 M.Cr.C.No.15002/2016 established the fact. But other requirement as mentioned above when and under what circumstances and by whom or under whom direction the photostate copy was prepared from the original docu- ments has not been disclosed and no evidence in form of affidavit and other document has been produced by the applicant. In the aforesaid circumstances, the applicant cannot be permitted to lead the secondary evidence in the form of photostate copy of the original document unless the aforesaid facts and circumstances established before the court concerned.
21. In this case, the applicant has prima facie established that the original cheque and the endorsement of bank and postal receipt was lost. In the aforesaid circumstances he should be permitted to lead secondary evidence and in this regard he should be allowed to sum- mon the witnesses or to call the record from the authority i.e post office or bank. If his prayer is refused then he will not be able to produce relevant evidence before the court and apparently it would amount to miscarriage of justice. In this regard, order of the learned Lower Court is contrary to law and apparently, illegal, improper and unjustified.
22. In view of the discussion, in the interest of justice, the im- pugned orders passed by the learned lower Court as well as the revi- sional Court relating to aforesaid subject matter are set aside and learned Lower Court is directed that if applicant satisfies to the Court to the effect that when and under what circumstances and by whom or under whom direction the photostate copy of the original document was prepared and the copies are above suspicion, by sub- mitting affidavit or other documents to the satisfaction of the Court then the learned Lower Court shall pass a fresh order about the ad- missibility of the photostate copy as a secondary evidence. Similarly, it is also directed that on the request of the applicant relevant docu- ments from the post office or bank and police Station concerned be called for, if available, and concerned witnesses may also be sum-
9 M.Cr.C.No.15002/2016moned in accordance with law with a view to provide him reason- able opportunity to establish his case.
23. The petition is disposed of accordingly.
(J.P.Gupta) JUDGE pm 10 M.Cr.C.No.15002/2016 HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR M.Cr.C. No.15002/2016 Balkrishna Chourasiya Vs. Rajesh Vaidhya O R D E R Post for : __/11/2016 (J.P.GUPTA) JUDGE __/11/2016