HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1605 OF 2009
JUDGMENT:
1. The appellant is aggrieved by the acquittal of the respondent for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') vide judgment in CC No.439 of 2008 dated 21.05.2009 passed by the XV Additional Judge-cum-XIX Additional Chief Metropolitan Magistrate, Hyderabad, present appeal is filed.
2. The complaint was filed by the complainant stating that the cheque in question was issued towards balance sale consideration of execution of sale deed. The said cheque when presented for clearance, the same was returned unpaid. In the said circumstances, complaint was filed by the complainant.
3. The learned Magistrate dismissed the complaint on the ground that the respondent rebutted the presumption and found that the cheque was not issued towards any legally enforceable debt. P.W.1 stated that she does not have knowledge about the transactions of the respondent and she 2 deposed that all the transactions about the cheque issuance, legal notice and all other details are known to her husband. The learned Magistrate further found that except stating that the cheque was issued, she has no knowledge about any other transactions.
4. The main ground on which the learned Magistrate dismissed the complaint is that the original cheque was not filed before the Court. P.W.1 failed to give any reason for not filing the original of Ex.P2, which is Xerox copy of the cheque bearing No.322523.
5. The finding of the learned Magistrate that unless the original cheque was filed, prosecution is not maintainable and the complaint fails, cannot be found fault with. It is for the complainant to convince the court with reasons why the said cheque has to be accepted as secondary evidence. Unless such evidence is adduced and Court is convinced to look into Ex.P2 cheque as secondary evidence, the question of entertaining the complaint does not arise. The burden is on the complainant to 3 fulfill the ingredients of Section 65 of the Indian Evidence Act. Section 65 of the Indian Evidence Act reads as follows:
"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) When the original is shown or appears to be in the possession or power-- of the person 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 1[India] to be given in evidence2; 1[India] to be given in evidence2;"
(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 evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."4
6. The Hon'ble Supreme Court in the case of Radhakrishna Nagesh v. State of Andhra Pradesh1 held that under the Indian criminal jurisprudence, the accused has two fundamental protections available to him in a criminal trial or investigation. Firstly, he is presumed to be innocent till proved guilty and secondly that he is entitled to a fair trial and investigation. Both these facets attain even greater significance where the accused has a judgment of acquittal in his favour. A judgment of acquittal enhances the presumption of innocence of the accused and in some cases, it may even indicate a false implication. But then, this has to be established on record of the Court.
6. Unless any of the conditions laid down in Section 65 of the Evidence Act are fulfilled, Ex.P2 cannot be accepted in the form of secondary evidence. The complainant has failed to convince the Court for accepting the photocopy of the cheque in evidence. Further PW1 admitted that she did not have personal knowledge of the outstanding towards the cheque 1 (2013) 11 supreme court Cases 688 5 issued and all the details are known to her husband, who is not examined. In the said circumstances, the complaint fails. The Learned Magistrate has not erred in any manner to interfere with the findings
7. Accordingly, this Criminal Appeal is dismissed.
__________________ K.SURENDER, J Date: 06.09.2022 kvs 6 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.1605 OF 2009 Date: 06.09.2022.
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