HONOURABLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.1374 OF 2020
ORDER:
The present Criminal Petition is filed under Section - 482 of the Code of Criminal Procedure, 1973 (for short 'Code'') to quash the order dated 11.02.2020 passed in Crl.M.P. No.206 of 2020 in C.C. No.5 of 2019 by the II Special Magistrate at Hyderabad.
2. Heard Mr. A. Tulsi Raj Gokul, learned counsel for the petitioners, and Mr. N. Srikanth Goud, learned counsel for respondent No.2 herein.
FACTS:
3. Respondent No.2 herein filed a complaint under Section - 200 of the Code against the petitioners herein for the offence under Section - 138 of the Negotiable Instruments Act, 1881 (for short 'Act, 1881') vide C.C. No.5 of 2019. In the said complaint, respondent No.2 herein has specifically mentioned about issuance of cheques bearing No.000760 and 000764, dated 20.01.2012 and 29.01.2012 for Rs.1,20,00,000/- 10,00,00,000/- respectively, both drawn on AXIS Bank by the petitioners herein towards repayment of legally enforceable debt to respondent No.2 herein. In the list of documents, respondent No.2 has specifically mentioned about the said cheques and also other documents.
4. On complying with the procedure laid down under Section - 200 of the Code, the learned Magistrate has taken cognizance of the KL,J Crl.P. No.1374 of 2020 2 offence under Section - 138 of the Act, 1881 against the petitioners herein and others. A perusal of the Photostat copies of the certified copies of the complaint would reveal that respondent No.2 has filed the said fifteen (15) documents in original along with complaint and he has received all the original documents on 19.06.2012. After verification of original documents with the Photostat copies thereof, according to respondent No.2, when complaints filed under Section - 200 of the Code, learned Magistrates are insisting to file the original documents along with complaint, and after verification of original documents with the Photostat copies, learned Magistrates are returning the said originals for safe custody and permitting the complainants to file originals at the time of marking of documents. According to him, in the present case also, the learned Magistrate has returned the originals to the complainant after verification on 19.06.2012. On satisfying with the originals only, the learned Magistrate has taken cognizance for the offence under Section - 138 of the Act, 1881 and issued summons to the petitioners - accused and other accused.
5. Respondent No.2 herein has filed an application vide Crl.M.P. No.206 of 2020 in C.C.NO.5 of 2019 under Section 65 (C) of the Indian Evidence Act, 1872 (for short 'Act, 1872') stating that the complainant has filed fifteen (15) original documents along with complaint, and after verification, the learned Magistrate returned the same with an undertaking to produce the same at the time of trial.
KL,J Crl.P. No.1374 of 2020 3 The said documents were misplaced in the Company, and despite its best efforts, it could not trace the originals. Therefore, respondent No.2 herein sought permission to file Photostat copies of the said documents and mark the same.
6. A counter was also filed by the petitioners herein opposing the said petition. In the counter, it is contended by the petitioners that Photostat copies are inadmissible in evidence as held by the Hon'ble Supreme Court in U. Sree v. U. Srinivas [ (2013) 2 SCC 114] and, therefore, the same cannot be received as secondary evidence. Respondent No.2 has to adduce secondary evidence of the documents invoking under Section 65 (C) of the Act, 1872, loss of originals has to be proved beyond reasonable doubt as held by the Apex Court in 2007 (5) ALD 97 (SC). They further contended that respondent No.2 has not established with regard to the misplacement of the original documents and there is no factual foundation laid down by respondent No.2. It is further contended that the said petition is not maintainable since the Act, 1872 completely bars any other kind of secondary evidence except certified copy and, in proof of the same, the petitioners herein have relied upon the principle laid down by the Allahabad High Court in Ganesh Prasad v. M/s. Badri Prasad Bholanath [ AIR 1980 ALL 361]. With the said contentions, the petitioners herein sought to dismiss the petition filed under Section - 65 (C) of the Act, 1872 vide Crl.M.P. No.206 of 2020.
KL,J Crl.P. No.1374 of 2020 4 FINDING OF THE COURT BELOW:
7. The learned Magistrate, on consideration of the contentions raised by both sides, allowed Crl.M.P. No.206 of 2020 in C.C. No.5 of 2019 vide order dated 11.02.2020 by relying upon the principle laid down by the Apex Court and the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh in Krishnapatnam Port Co. Ltd., Hyderabad v. Cargill India Pvt. Ltd., New Delhi1.
8. Feeling aggrieved by the said order, the petitioners herein filed the present petition under Section - 482 of the Code to quash the same.
SUBMISSIONS OF THE PETITIONERS:
9. Mr. A. Tulsi Raj Gokul, learned counsel for the petitioners, by referring to the principle laid down by the Apex Court in Rakesh Mohindra v. Anita Beri2 and other judgments, would submit that respondent No.2 failed to lay a factual foundation with regard to its contention that the documents were misplaced. According to him, respondent No.2 has not even filed any affidavit before the Court below and also before this Court. They have also not lodged any complaint with police concerned with regard to the said misplacement of original documents. Respondent No.2 has filed the application under Section - 65 (C) of the Act, 1872 in a casual and routine manner without laying factual foundation. The amount involved under the 1 . 2018 (5) ALD 13 (DB) 2 . (2016) 16 SCC 483 KL,J Crl.P. No.1374 of 2020 5 cheques in dispute is huge amount, and even then respondent No.2 did not take any steps including filing of affidavit on factual foundation and lodging of complaint about misplacement of original documents. Though a detailed counter was filed resisting the said application, the learned Magistrate by relying upon the principle laid down by the Apex Court and a Division Bench of High Court of Judicature at Hyderabad in Krishnapatnam Port Co.Ltd.1 allowed the said application. The impugned order is contrary to the procedure laid down under Section - 65 of the Act, 1872 and also the principle laid down by the Apex Court. With the said contentions, the learned counsel sought to quash the impugned order.
SUBMISSIONS OF RESPONDENT No.2:
10. On the other hand, Mr. N. Srikanth Goud, learned counsel for respondent No.2 would submit that respondent No.2 has filed all the original documents which are fifteen (15) in number along with the complaint itself. After verification of the said originals with the Photostat copies thereof, the learned Magistrate has returned the same with an undertaking to produce the originals at the time of trial. On giving such an undertaking by respondent No.2, the learned Magistrate has returned the original documents to respondent No.2 on 19.06.2012, and in proof of the same, respondent No.2 has filed Photostat copy of certified copy of complaint in C.C. No.5 of 2019. The learned counsel for respondent No.2 would further submit that respondent No.2 has filed an application under Section - 65 (C) of the KL,J Crl.P. No.1374 of 2020 6 Act, 1872 duly signed by respondent No.2 specifically contending that the documents were misplaced, and despite its best efforts, it could not trace out the originals. The said petition itself is a factual foundation, and thus, respondent No.2 has laid a factual foundation with regard to the misplacement of said documents. Just because respondent No.2 did not lodge any complaint with the police concerned with regard to the said misplacement of documents, petition under Section - 65 of the Act, 1872 cannot be thrown away at the initial stage. According to him, the learned Magistrate has rightly allowed the application filed by respondent No.2 herein by relying on the principle held by this Court in Krishnapatnam Port Co.Ltd.1 and there is no error in it.
FINDING OF THE COURT:
11. There is no dispute that respondent No.2 filed a complaint under Section - 200 of the Code for the offence under Section - 138 of the Act, 1881 against the petitioners herein and others and it is also not in dispute that respondent No.2 herein has filed original documents as mentioned in the list of documents appended to the complaint. In the Photostat copy of the certified copy of the said complaint, it is specifically mentioned that the original documents filed in the Court along with complaint returned to respondent No.2 herein on 19.06.2012. A perusal of the cause title of the complaint would reveal that this Court vide order dated 11.09.2018 in Crl.P. Nos.626 and 4279 of 2013, quashed the proceedings against accused Nos.4, 5 and 7 in C.C. No.5 of 2019.
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12. Respondent No.2 has filed an application under Section - 65 (C) of the Act, 1872, specifically contending that it has filed original documents along with complaint and after verification, the said documents were returned to it on giving an undertaking to produce the same at the time of trial. The said documents were misplaced in the office of respondent No.2, and despite best efforts, it could not trace out the said documents and, therefore, sought permission of the Court below to file Photostat copies of said documents and to leave secondary evidence. It is also relevant to note that the GPA Holder of respondent No.2 has also signed the said petition.
13. In Krishnapatnam Port Co.Ltd.1 a Division Bench of High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh had an occasion to deal with the scope and ambit of Section - 65 of the Act, 1872 and also the issue of filing an affidavit affirming that the documents were lost while office was being shifted and case files were being transferred from one team to another. In the said case, the original documents were misplaced while shifting the office and a sworn affidavit was filed to the said effect. Considering the said aspects, the Division Bench determined the following five (05) points:
"1. Whether the xerox copies of the documents would amount to secondary evidence.
2. Whether the original documents of the documents, sought to be admitted, are proved as lost.
3. Whether the notice mandated by Section 66 of the Indian Evidence Act is necessary before admitting the documents.
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4. Whether the failure of the respondent to seek permission of the court, for filing documents, at a alter stage of filing the plaint, would make the petition liable for dismissal.
5. Whether the power under Article 227 of the Constitution of India need to be exercised in this case.
6. To what result."
14. By referring to the principle laid down in various judgments, the Division Bench held with regard to point No.1 that it can be understood that the Courts have been permitting admission of Photostat copies into evidence, but the nature of the documents and the probative value of the documents and possibilities of tampering the documents have to be taken into consideration, before permitting Photostat copies into evidence. On the second point, the Division Bench held that the respondent therein filed his affidavit and affirms that the documents were lost while the office was being shifted and the case files were being transferred from one team to another. By referring to the same, the Division Bench was inclined to accept the said approach adopted by it and consider the sworn affidavit of the respondent as sufficient to prove the fact of loss of originals.
15. With regard to point No.3, the Division Bench held as under:
"21. A reading of the above provision would show that the notice under Section 66 of the Act is necessary when the original is shown to be in possession of the person against whom the document is sought to be proved or is in possession of any person out of reach or not subject to the process of the Court or of any person who is legally bound to produce it. In order to seek dispensation of notice under Section 66 of the Act, the KL,J Crl.P. No.1374 of 2020 9 respondent should succeed in proving that the original document is in his own possession and is not in possession of a person against whom it is sought to be proved or is not in possession of any person out of reach or not subject to the process of the Court or any person legally bound to produce it. The documents, sought to be admitted in this case are of different categories. The table contains the list of 32 documents.
The first document is the purchase order placed by the plaintiff on Cargill International S.A., Geneva, a copy of which can be expected to be available with the respondent. So also the documents at Sl.Nos.3, 5, 6, 7, 10 and 13. Items 2, 4, 8, 9, 11, 12, 14 to 21, 24, 25, 29 are the documents for which also copies can be expected to be available with the petitioner. Items 22, 23, 26, 28, 30 and 31 are the correspondence between two third parties, of which probably the petitioner may not have the copies. No explanation is found in the petition, with regard to the probability of the copies of the above documents being with the petitioner. In Ehtisham's case the Apex Court observed that the law is well settled that if a party wishes to lead secondary evidence the court is obliged to examine the probative value of the document produced in the court or their contents and decide the question of admissibility of a document in secondary evidence and at the same time the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the document falls under section 65(a) of the Act, notice under section 66 of the act becomes necessary. Hence, the notice under Section 66 of the Act is required to be given to the party in whose possession the original or the copies of the documents are, for production of such copies. The point is answered accordingly."
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16. In view of the law laid down by the Division Bench in Krishnapatnam Port Co.Ltd.1 and also as discussed above, respondent No.2 has filed original documents along with the complaint and the same were returned to it after verification of the same upon obtaining an undertaking from respondent No.2 to the effect that it would produce the same at the time of trial. On verification of the same only, the learned Magistrate has taken the cognizance of the offence under Section - 138 of the Act, 1881 vide C.C. No. 5 of 2019. The learned Magistrate then issued summons to the petitioners herein and other accused. There is an endorsement to the said effect in the complaint itself.
17. Respondent No.2 has filed an application under Section -
65 (c) of the Act, 1872 which was signed by its GPA Holder, specifically contending the aforesaid facts. Just because respondent No.2 has not lodged any complaint with the police concerned about lost of original documents, the said application cannot be thrown away. There is no reason as to why the petition filed by respondent No.2 signed by its GPA holder and Authorized Signatory stating that the originals were misplaced cannot be believed. According to this Court, respondent No.2 has laid down a factual foundation by filing an application under Section - 65 (c) of the Act, 1872.
18. In view of the above said discussion, according to this Court, the learned Magistrate has rightly allowed the application filed by respondent No.2 under Section - 65 (c) of the Act, 1872 vide KL,J Crl.P. No.1374 of 2020 11 Crl.M.P. No.206 of 2020 in C.C. No.5 of 2019 vide order dated 11.02.2020. There is no error in it. It is a reasoned order passed by the learned Magistrate relying upon the principle laid down by the Division Bench in Krishnapatnam Port Co.Ltd.1. Thus, the petitioners have failed to establish any ground for interference by this Court with the impugned order in exercise of its inherent power under Section - 482 of the Code.
19. Accordingly, the present Criminal Petition is dismissed. As a sequel, miscellaneous petitions, if any, pending in the Criminal Petition shall stand closed.
_________________ K. LAKSHMAN, J 5th March, 2021 Mgr