Madhya Pradesh High Court
Abdul Salam Qureshi vs Dayanand Jaiswal Judgement Given By: ... on 17 January, 2014
1
Cr.R No.1991 of 2012
17.01.2014
Shri S.K.P.Verma, counsel for the applicant.
He is heard on the question of admission.
The applicant/ accused has filed this revision under section
397/401 read with section 482 of the Cr.P.C being aggrieved by the order dated
22.9.12 passed by the ACJM, Singrauli in Case No.159/09 whereby allowing
the application of the respondent/ complainant filed under section 65 of the
Evidence Act, he has been permitted to lead the secondary evidence with respect of the disputed cheque and other documents.
2. The applicant counsel after taking me through the averments of the petition as well as the papers placed on the record along with the impugned order argued that the impugned complaint was filed in the year 2007 and since then till the date of filing the impugned application, at any point of time, it was not mentioned on record that such cheque and other papers have been stolen in some theft from his place and at the stage of the evidence, by mentioning such fact of theft, the application was filed and the trial court without holding any proper inquiry in that regard by allowing such application has permitted the respondent to lead the secondary evidence on such question. Such order is not sustainable because the same has not been passed after complying the procedure provided under section 65 of the Evidence Act. In addition to it, it was said that such cheque was never issued by the applicant. The same is forged and fabricated document and that is why the original has not been produced by the respondent on record and prayed for admitting and allowing this revision.
3 Having heard the counsel, keeping in view the arguments advanced, I have carefully gone through the impugned order along with the papers placed on the record. Prima facie it is apparent from the impugned application that respondent has filed the impugned complaint along with photocopy of the cheque and other documents. On filing this application firstly he has stated that the alleged documents have been stolen in some theft from his place and in such circumstances prayed to permit him toprove such documents 2 Cr.R No.1991 of 2012 by secondary evidence on the basis of the copies placed on the record. I have not found any document filed by the present applicant either before the trial court or before this court to show that the custody of the original cheque is still with the respondent or some other specific person. Even today the counsel is not in a position to show about the custody of such original document. So, in such premises,it is undisputed fact on record that the concerning original cheque and other papers are not in custody of the respondent as well as the applicant and any of them is not in a position to say that at present the same are in whose custody. So, in such premises, I am of the considered view that the trial court has not committed any error in allowing the application to permit the respondent to prove such documents by way of secondary evidence on the basis of the copies available on the record. So, in such premises, I have not found any perversity, illegality, irregularity or anything against the propriety of the law in the impugned order which could be interfered under the revisional jurisdiction of this court. Consequently, this revision being devoid of any merit is hereby dismissed.
4. However before parting with the matter, I would like to observe that at the time of adducing the secondary evidence by the respondent on the above mentioned any of the documents, the applicant herein shall be at liberty to cross-examine the 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. He shall also be at liberty to challenge the documents and its execution on the basis of the available circumstances. Besides this, he shall be at liberty to adduce the evidence in this regard on his own behalf in support of his defence. But the trial court shall consider such evidence strictly in accordance with the law and procedure prescribed in this regard.
5. Petition is dismissed with aforesaid direction and observation.
C.C as per rules.
(U.C.Maheshwari) Judge MKL