TaxTMI 
TaxTMI 
2015 (4) TMI 1317
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....hinapuram, Ranga Reddy District. 2. The complainant filed C.C. No. 184 of 2011 against A1 to A3 for the offence under Section 138 of Negotiable Instruments Act, 1881 (for short NI Act). In the said case he filed Crl.M.P. No. 1 of 2011 under Section 63 of Indian Evidence Act to permit him to mark photostat copy of cheque bearing No. 074191 dated 27.10.1999 as secondary evidence. His case was that at the time of filing the case his previous counsel filed original cheque and after taking cognizance, the counsel took back the original cheque to be produced at the time of trial by replacing with a photostat copy. However, the original cheque was misplaced in the office of his counsel and in spite of his best efforts the original cheque could no....
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....lainant has neither examined the advocate nor produced his affidavit in proof of such plea but still the Courts below on presumptions and assumptions accepted the alleged loss of cheque and permitted him to produce the copy of the cheque purported to be the photostat copy of the original. He vehemently contended that by the orders of the Courts below, great prejudice is caused to the defence of accused inasmuch as their plea before the trial Court was that they never issued cheque and if the photostat copy of the cheque were to be marked as secondary evidence, it cannot be sent to the FSL for comparison of the handwritings of the accused. He thus prayed to allow the petition and set aside the impugned order. He relied upon the following dec....
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....ded that the orders of the Courts below were perfectly right and need not be reconsidered. 6. In view of rival submissions, the point for determination is: Whether there are merits in this petition to allow? 7. POINT: Section 65 of the Evidence Act is the enabling provision for adducing secondary evidence. For our present context sub-section (c) of Section 65 is important which reads thus: "Section 65 - Cases in which secondary evidence relating to documents may be given Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:- (a) x x x (b) x x x (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not a....
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....dinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non-production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In case, an objection is not raised a....
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....uestions, since the trial Court will not number the criminal case without production of original cheque at the time of filing the case, it can be presumed that original cheque must have been filed into Court. Further, as per the observation of learned Metropolitan Sessions Judge, it was not the contention of the accused before him that the original cheque was not filed at all into Court. So, by this count also it can be held that original cheque was indeed filed into Court. Then, at the time of withdrawing original cheque concerned Court staff will return the original cheque only on comparison of original with photostat copy. Therefore, the photostat copy now available in the Court can be presumed as exact copy of original cheque. Then loss....
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....ges his evidentiary burden then the onus shifts to accused. The accused can establish their defence by various other means which are legally permissible to them. So, merely on the apprehension that the accused will loose the opportunity to send the document to FSL, the complainant cannot be restrained from establishing his case by producing the secondary evidence. Therefore, this contention also cannot be accepted. 12. The cited decisions will not improve the case of the petitioners/accused as they can be distinguished on facts. "a) In J. Yashodas case AIR 2007 SC 1721 (supra) the facts are that appellant sought to produce photostat copy of a document on the plea that the original was with respondent No. 1 but respondent No. 1 denied the ....