TaxTMI 
TaxTMI 
2021 (6) TMI 776
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....12 for clearance in the bank account No. 1947051791 maintained with the Central Bank of India, Branch Dhamtari. The cheque was dishonored on account of insufficient balance on the same day by the ban. Thereafter, the respondent requested him to give one month's time so that he may deposit the entire amount before the bank so the cheque can be honored. The petitioner again submitted the cheque on 18.09.2012 which was again dishonored on account of insufficient balance. 3. The petitioner sent a notice to the respondent as required under Section 138 of the Negotiable Instruments Act, 1881 (herein after referred to as 'the N.I. Act') which was neither replied nor payment was made to the petitioner. Thereafter, he filed a complaint under Section 138 of the N.I. Act before the learned Chief Judicial Magistrate on 05.11.2012. Before registration, as required under Section 200 of the Cr.P.C., the petitioner exhibited the documents namely the cheque, cheque forwarding memo and intimation by the bank regarding dishonored of the cheque. Learned trial Court taking cognizance of the complaint issued summons to respondent who appeared before the learned Chief Judicial Magistrate, Dh....
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....Criminal Procedure only i.e. he should have filed petition under Section 482 Cr.P.C. in place of writ petition (criminal) under Article 226 of the Constitution of India. Learned counsel while refuting the said contention would submit that the power exercised by this Court under Article 226 of the Constitution of India and under Section 482 Cr.P.C. are one and the same as both the powers have to be exercised rarely and sparingly to prevent abuse of process of any court or to secure the ends of justice, therefore, the writ petition (criminal) assailing the orders passed by the learned Session Judge as well as learned Magistrate First Class is maintainable. 7. The issue raised by the respondent is no more res-integra as the Hon'ble Supreme Court has already concluded the issue in case of Girish Kumar Suneja vs Central Bureau of Investigation 2017(14) SCC 809 and has held in paragraph No. 38 as under :- "38. The Cr.P.C. is undoubtedly a complete code in itself. As has already been discussed by us, the discretionary jurisdiction under Section 397(2) of the Cr.P.C. is to be exercised only in respect of final orders and intermediate orders. The power under Section 482 of the Cr.P.C....
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.... against whom the document is sought to be proved, 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 the notice mentioned in section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence; (g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary ev....
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....nts Claims Tribunal and the Tribunal in accepting photocopy of a document purporting to be the driver's licence and recording a finding that the driver had a valid licence, has committed a grave error of law. He also submitted that the High Court has not dealt with the said contention of the appellant and without giving any reason has dismissed the appeal. The Tribunal and also the High Court have failed to appreciate that production of a photocopy was not sufficient to prove that the driver had a valid licence when that fact was challenged by the appellant and genuineness of the photocopy was not admitted by it. Therefore, the judgment and oder passed by the High Court in FAO No. 2368 of 1998 deserves to be set aside. We accordingly, allow this appeal and remit the matter back to the High Court for deciding the said appeal afresh after giving an opportunity of hearing to the parties." 13. In the case of J. Yashoda vs. K. Shobha Rani 2007 (5) SCC 730 Hon'ble Supreme Court has held in paragraphs No. 7,8 and 9 as under :- "7. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible throu....
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....er contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed Photostat copy. Prayer was also made by the appellant that in case respondent no. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the Photostat copy had been filed by the appellant was in the possession of Respondent No. 1. There was also no other material on the record to indicate the original document was in the possession of respondent no.1. The appellant further failed to explain as to what were the circumstances under which the Photost....