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5. None appeared on behalf of the respondent even though served and represented.

6. 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.

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-

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 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.