Madhya Pradesh High Court
Anil Parwani vs Ushabai Agrawal on 31 July, 2024
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1 MCRC-45992-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 31st OF JULY, 2024
MISC. CRIMINAL CASE No. 45992 of 2023
ANIL PARWANI
Versus
USHABAI AGRAWAL
Appearance:
Shri Sankalp Kochar - Advocate for the applicant.
Shri Z.M. Shah - Advocate for the respondent.
ORDER
The petitioner has filed this petition invoking the extraordinary jurisdiction of this Court under Section 482 of Cr.P.C, challenging the legality and validity of the order dated 22.9.2023 (Annexure A-1) passed by First Additional Sessions Judge, Burhanpur in Criminal Revision No. 91 of 2023 and also the order dated11.7.2023 (Annexure A-2) passed by JMFC, Burhanpur, whereby the application filed by the applicant under Section 65 of the Indian Evidence Act has been dismissed.
2. It is contended by the counsel for the applicant that a complaint under Section 138 of the Negotiable Instruments Act has been filed by the complainant/respondent against the applicant. During course of trial, the applicant filed an application under Section 65 of the Indian Evidence Act whereby a prayer was made to adduce secondary evidence in respect of consent letter dated 13.12.2017. According to the applicant, original of the said consent letter was with the complainant. The complainant filed reply to Signature Not Verified Signed by: PRADYUMNA BARVE Signing time: 8/2/2024 11:38:16 AM 2 MCRC-45992-2023 the said application and in Paragraph 2 of the said reply, it was admitted by the complainant that original of the said consent letter was in her possession but the same was not traceable and even the complainant had assured that as soon as such document is found, same shall be produced on record. In Paragraph 11 of her testimony also, the complainant had admitted the factum of reducing the said consent letter dated 13.12.2017 in writing and at that stage complainant expressed that she was not sure as to whether the original was in her possession or not. It is further contended that in view of the specific reply of the complainant to the application under Section 65 of the Indian Evidence Act, the applicant has discharged primary burden of proving that photocopy is exactly the same as original, therefore, the Courts below ought to have allowed the application under Section 65 of the Indian Evidence Act. However, by passing a non-speaking order, the application has been dismissed. It is submitted that the impugned orders are unsustainable and deserve to be set aside. In support of the aforesaid contentions, the counsel has placed reliance on the decisions in Jagmail Singh and another Vs. Karamjit Singh and others - (2020) 5 SCC 178; Shivhari Lokhande Vs. Prabha Singh - 2017 (1) MPLJ 131 and Anil Balasaheb Murde Vs. Adinath Trimbak Bodkhe - 2007 (2) Mh.L.J. 406.
3. The counsel for the respondent submits that the Courts below have not committed any error while dismissing the application, inasmuch as, there was complete failure on the part of the applicant to satisfy the ingredients of Section 65 of the Indian Evidence Act. As per Section 65 of the Indian Evidence Act, it is incumbent upon the parties to the litigation to prove that Signature Not Verified Signed by: PRADYUMNA BARVE Signing time: 8/2/2024 11:38:16 AM 3 MCRC-45992-2023 the photocopy, which is in their possession, is exactly the same as original and is a photocopy of the original. No such averment has been made in the application and therefore, the Courts below have dismissed the application. The counsel for the respondent has disputed the consent letter while drawing attention of this Court to the last page of the same and submits that the last page of the consent letter is not in sequence of other pages of stamp paper as it bears different serial number. Therefore, it is submitted that no interference is warranted in this petition and petition deserves to be dismissed. In support of the aforesaid contentions, the counsel has placed reliance on the decision of this Court in Sangita Malviya Vs. Santosh Malviya - 2017 (3) MPLJ 108 .
4. No other point is argued or pressed by the counsel for the parties.
5. Heard submissions and perused the record.
6. On perusal of record, it reflects that the present applicant moved an application under Section 65 of the Indian Evidence Act before the trial Court during course of trial under Section 138 of the Negotiable Instruments Act. In the said application it was asseverated by the applicant that original of consent letter dated 13.12.2017 was in possession of the respondent/complainant and it was also stated in Paragraph 3 as under:-
"3. यह क चू क प रवा दया ने अपना कारण दशाते हुए उ द तावेज तुत नह ं कया है ऐसे म प रवा दया ारा आरोपी को द गई जस क तस क छाया ित क रकाड पर तुत को तीयक सा य के प म ाहय कर उसे दिशत करना आव यक हो Signature Not Verified Signed by: PRADYUMNA BARVE Signing time: 8/2/2024 11:38:16 AM 4 MCRC-45992-2023 गया है । और इसक अनुमित दे ना सा य ए ट के तहत ीमान को एक मेव े ािधकार मे है । आरोपी ारा तुत उ सहमित प को ाहय कर दिशत करने क अनुमित नह ं द गई तो आरे पी अपना समुिचत बचाव करने म असमथ रहे गा।"
7. The respondent/complainant filed reply to the said application and in Paragraph 2 of the reply, existence of the said consent letter was admitted by the respondent. However, it was stated in the reply as as she lost her husband, therefore, original of the document was not traceable and in same Paragraph, an assurance was made by the respondent/complainant that as soon as the document is found, same shall be brought on record. Relevant extract of the reply is reproduced as under"-
"यहां यह प कया जाना आव यक है क
प रवा दया क पित क मृ यु दनांक
13/12/2017 के कुछ माह पूव ह हुई थी
इस कारण मानिसक परे शानी के कारण मूल
द तावेज कह रखा गया है । इस कारण
प रवा दयां मूल द तावेज तुत नह ं कर
पायी है । प रवा दयां उ द तावेज क मूल
या फोटो ित ढू ढने के काफ यास कर रह
है । य द उसे वह द तावेज िमल जाता है तो
वह अव य ह अिभलेख पर तुत करे गी।"
8. During course of examination-in-chief as well, the complainant admitted the factum of existence of the consent letter dated 13.12.2017, Signature Not Verified Signed by: PRADYUMNA BARVE Signing time: 8/2/2024 11:38:16 AM 5 MCRC-45992-2023 however, in Paragraph 11 she has expressed that she was not sure whether original of the same was with her or not.
9. A perusal of the application reflects that the present applicant had discharged primary burden and once factum of existence of documents was admitted by the complainant and it was also stated by the complainant that the consent letter was with her but was not traceable, in the considered view of this Court, the trial Court ought to have dealt with the application objectively and the trial Court has committed error while dismissing the application filed by the applicant under Section 65 of the Indian Evidence Act..
10. The Apex Court in Jagmail Singh and another (supra) , observed in Paragraph 11 as under:-
"11. A perusal of Section 65 makes it clear that secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after notice mentioned in Section 66 such person does not produce it. It is a settled position of law that for secondary evidence to be admitted foundational evidence has to be given being the reasons as to why the original eviedence has not been furnished."
Signature Not Verified Signed by: PRADYUMNA BARVE Signing time: 8/2/2024 11:38:16 AM6 MCRC-45992-2023
11. Accordingly, the petition is allowed. The order dated 22.9.2023 (Annexure A-1) passed by First Additional Sessions Judge, Burhanpur in Criminal Revision No. 91 of 2023 and also the order dated11.7.2023 (Annexure A-2) passed by JMFC, Burhanpur are set aside. The application filed by the applicant under Section 65 of the Indian Evidence Act is allowed. The trial Court is directed to proceed accordingly.
(MANINDER S. BHATTI) JUDGE PB Signature Not Verified Signed by: PRADYUMNA BARVE Signing time: 8/2/2024 11:38:16 AM