Madhya Pradesh High Court
Sunil Moolchandani vs Rajesh Gupta on 4 September, 2019
Author: Jagdish Prasad Gupta
Bench: Jagdish Prasad Gupta
1
M.Cr.C. No.30895/2019
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
AT JABALPUR
(SINGLE BENCH : HON'BLE SHRI JUSTICE J.P.GUPTA)
M.Cr.C. No. 30895/2019
Sunil Moolchandani
Vs.
Rajesh Gupta
Shri Vijay Kumar Shahni, learned counsel for the
petitioner.
Whether approved for reporting : (Yes / No).
ORDER
(04.09.2019) This petition under Section 482 of Cr.P.C. has been preferred against the order dated 29.6.2019 passed by Third Additional Session Judge, Bhopal in Criminal Revision No. 282/2019 whereby the order of the trial Court dated 10.5.2019 passed in Criminal Case No. 1957/2017 by JMFC, Bhopal has been set aside.
2. The learned JMFC has allowed the application filed by the petitioner for allowing a photocopy of receipt of payment of cheque amount to the respondent as secondary evidence in defence. By the impugned order that order has been set aside.
3. This petition has been filed on the ground that the learned Sessions Judge has no jurisdiction to exercise 2 M.Cr.C. No.30895/2019 revisional power as the order passed by the Magistrate is an interlocutory order and not giving opportunity to prove the receipt of the payment to discharge the liability of the cheque amount in question, would be amount to deprive the petitioner to adduce evidence in his defence and it would be injustice and misuse of the process of the court, hence the impugned order be set aside.
4. Having perusal of the record, it is found that the learned Additional Session Judge has set aside the order of the learned Magistrate on the ground that the learned Magistrate earlier rejected the aforesaid prayer of the petitioner-accused, therefore, allowing subsequent application is amount to review of its order which is not permissible in law, subsequently, for allowing the photocopy of the receipt as secondary evidence is contrary to law as there is no evidence and proof for establishing the pre-conditions for allowing the photocopy as secondary evidence, therefore, the order of the Magistrate is not in accordance with law. Therefore, it is not sustainable.
5. Learned counsel appearing on behalf of the petitioner has submitted that this court, in case of Baidehisharan vs. State of M.P. Criminal Revision No. 459/2015, disposal date 10.8.2015 has held that the order allowing the parties to produce the photocopy as secondary evidence is an interlocutory order and no revision can lie. But this contention is not correct; in the aforesaid order, this court was dealt with the second copy of the relevant document and this court has not decided the issue that the order allowing a photocopy as secondary evidence by the Criminal Court is an interlocutory order.
3 M.Cr.C. No.30895/20196. In view of this court, allowing any party to adduce secondary evidence is not an interlocutory order as it substantially effect the right of the party. The order is not of nature having only interim effect upto the trial and the order finally decided the right of the party to adduce the document in evidence.
7. Apart from it, it is presumed that it is an interlocutory order even though the learned Session Judge wrongly exercising the revisional power but corrected the proceedings of the trial Court. This court cannot interfere under Section 482 of Cr.P.C., as the order of the learned Additional Session Judge is intended to correct the process of the trial Court which cannot be said to be misuse of the process of the court or having effect of causing injustice.
8. In the present case the petitioner/accused intends that the so called photocopy of the receipt given by the complainant/respondent for receiving of the payment in discharge of the liability occurred, under the cheque in question in absence of the original receipt can be proved as secondary evidence as per the provision of Section 63 (2) and 65 of the Evidence Act.
9. But for that purpose the party has to establish the necessary conditions as required under the aforesaid provision in that regard. This court in case of Aneeta Vs. Saraswati 2012 (4) MPLJ, 561 has held in para 12 as under :-
"(12) So far as the applicability of Clause (2) of Section 63 of Evidence Act placed reliance 4 M.Cr.C. No.30895/2019 by the learned counsel for 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 supporting 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 tampered and it ensures its accuracy. Even if accurate photocopy 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 interpolating the same, another photocopy of the said interpolated 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 application 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 difficult to hold the hallmark and authenticity and accuracy of the photocopy".
10. This court in case of Balkrishna Chourasiya Vs. Rajesh Vaidhya, M.Cr.C. No. 15002/2016 passed on 5 M.Cr.C. No.30895/2019 9.11.2016 in the light of the aforesaid law has held in para 18 and 19 which is as under:-
"18. 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 existence. 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 photostate 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 affidavit or other relevant document on satisfaction may allow the photostate copy of original document as secondary evidence. In absence of aforesaid satisfaction or reasonable suspicion about the genuineness of the photocopy of the original document the Court may disallow the prayer.6 M.Cr.C. No.30895/2019
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."
11. In the present case, the petitioner has failed to prima facie established that under what circumstances and by whom or under whose direction the photocopy was prepared from the original document. In the aforesaid circumstances, the petitioner cannot be permitted to lead the second evidence in the form of photocopy of the original receipt. In the circumstances, learned Additional Sessions Judge has passed correct order.
12. In view of the circumstances, in the present case, there is no need to invoke the power under Section 482 of Cr.P.C. to interfere in the impugned order as it cannot be said that the order is amount to misuse of process of the court or causing injustice with the petitioner.
13. Hence this petition is dismissed being devoid of merit.
(J.P. GUPTA) JUDGE VKV/-
Digitally signed by VINAY KUMAR VERMA Date: 2019.09.04 05:25:34 -07'00'