Chattisgarh High Court
Gurusharan Sahu vs Chumman Lal Sinha on 22 June, 2021
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 07-06-2021
Pronounced on 22 -06-2021
WPCR No. 864 of 2019
• Gurusharan Sahu S/o Late Awadh Ram Sahu Aged About 48
Years R/o Qr. No. Med-03, Civil Line Dhamtari, Tahsil And
District- Dhamtari, Chhattisgarh.
---- Petitioner
Versus
• Chumman Lal Sinha S/o Late Khamhan Lal Sinha Aged About 34
Years R/o Village Sarbada, Police Station And Tahsil Gurur,
District- Balod, Chhattisgarh.
---- Respondent
For Petitioner : Shri Kunal Das, Adv.
For Respondent : Shri Sunil Sahu, Adv.
Hon'ble Shri Justice Narendra Kumar Vyas
C.A.V. ORDER
1. The petitioner has filed this writ petition (Cr) under Article 226 of
the Constitution of India challenging the legality and propriety of
the order dated 18.03.2019 passed in Criminal Revision No.
26/2019 in the case of Gurusharan Sahu vs Chumman Lal Sinha
passed by learned Sessions Judge, Dhamtari as well as order
passed by learned Chief Judicial Magistrate, First Class Dhamtri
(C.G) rejecting the application on 26.10.2018 in Criminal Case
No. 183/2014 by recording a finding that photocopy of cheque
cannot be taken as secondary evidence.
2. The brief facts, as projected in the writ petition (criminal) are that
the respondent took loan of Rs. 1,00,000/- from the petitioner on
04.07.2012 and in lieu of that he has given cheque No. 286705
drawn in HDFC Bank to the respondent on 25.07.2012. The
petitioner submitted the said cheque on 31.07.2012 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, Dhamtari.
4. During trial of the case, when evidence was being recorded, the
original cheque and other relevant documents were lost. The
petitioner filed an application on 14.08.2012 for permitting him to
submit secondary evidence as provided under Section 65 of the
Indian Evidence Act, 1872, mainly contending that he has
already submitted photocopy of the cheque, return memo issued
by the Central Bank, Branch - Dhamtari, memorandum given by
the H.D.F.C. Bank with regard to dishonored of the cheque along
with the complaint, but the original documents have been
misplaced, despite sincere efforts being made by him, the original
document is not traceable, therefore, he prayed that photocopy
of said documents may be taken on record as secondary
evidence.
5. The application was rejected by the learned trial Court on
26.10.2018 by recording the finding that photocopy cannot be
termed as secondary evidence. The learned trial Court has also
recorded the finding that petitioner has not followed the
procedure as provided under Section 65 of the Indian Evidence
Act for recording of secondary evidence as it is necessary that
there must be sufficient materials on record which shows that
despite due diligence original documents could not be traced
out. Thereafter, he filed the criminal revision No. 26/2019 before
Learned Sessions Judge Dhamtari. Learned Sessions Judge
vide its order dated 18.03.2019 has dismissed the said criminal
revision. Both the orders have been assailed by the petitioner
under Article 226 of the Constitution of India in writ petition
(criminal) before this Court. During course of hearing of writ
petition , two issues have been raised by the parties and they are
as under :-
(i) Whether, writ petition (criminal ) assailing legality and
propriety of the order passed by the Revisional Court is
maintainable?
(ii) Whether, the photocopy of the document can be taken
as secondary evidence as provided under Section 65 of the
Evidence Act?
6. With regard to Issue No. (i) learned counsel for the respondent
raised objection on maintainability of the writ petition (criminal)
mainly contending that the Code of Criminal Procedure is a
complete code which petitioner has exhausted by filing revision
before the learned Sessions Judge. Once, the petitioner has
exhausted remedy under the Code of Criminal Procedure he
should exhaust remedy available under the Code of 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 1 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. is to
be exercised only in respect of interlocutory orders to
give effect to an order passed under the Cr.P.C. or to
prevent abuse of the process of any Court or otherwise
to serve the ends of justice. As indicated above, this
power has to be exercised only in the rarest of rare
cases and not otherwise. If that is the position, and we
are of the view that it is so, resort to Articles 226 and 227
of the Constitution would be permissible perhaps only in
the most extraordinary case. To invoke the constitutional
jurisdiction of the High Court when the Criminal
Procedure Code restricts it in the interest of a fair and
expeditious trial for the benefit of the accused person, we
find it difficult to accept the proposition that since Articles
226 and 227 of the Constitution are available to an
accused person, these provisions should be resorted to
in cases that are not the rarest of rare but for trifling
issues."
8. In view of the law laid down by the Hon'ble Supreme Court in
Girish Kumar Suneja (supra), I am of the considered view that
writ petition (criminal) is maintainable assailing the order passed
by the learned Sessions Judge in the criminal revision. Therefore,
issue number 1 raised by the respondent goes against him and
this Court finds that the writ petition (criminal) is maintainable.
9. With regard to issue No. (ii) - for deciding issue No. 2 it is
necessary to reproduce the provisions of Sections 63 and 65 of
the Indian Evidence Act, 1872.
Section 63 of the Indian Evidence Act is extracted below :-
"63. Secondary evidence.--Secondary evidence means
and includes--
2017(14) SCC 809
(1) Certified copies given under the provisions
hereinafter contained;
(2) Copies made from the original by mechanical
processes which in themselves insure the accuracy
of the copy, and copies compared with such copies;
(3) Copies made from or compared with the original;
(4) Counterparts of documents as against the parties
who did not execute them;
(5) Oral accounts of the contents of a document given
by some person who has himself seen it.
Section 65 of the Evidence Act is extracted below :-
"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 [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 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."
10. From perusal of the provisions, it is quite crystal clear that
following may be included as secondary evidence:-
7.1 If it is certified copy
7.2 Copies made from the original by mechanical
process which ensure accuracy of the copy and
copies compared with such copies
7.3 Copies made from or compared with the original
7.4 Counterfeit of the documents as against the
parties who did not execute.
7.4 Oral accounts of the contents of the document
given by some persons who has himself seen the
same.
11. From perusal of Clause 2 and 3 of the Section 63 of the
Indian Evidence Act it can be said that by some mechanical
process copy of the document may be obtained but the
petitioner shall ensure its correctness and accuracy by sufficient
placing materials on record. It is pertinent to mention here that
there is no whisper in the application filed by petitioner before
Trial Court which shall indicate that it has been obtained by
mechanical process to ensure its accuracy. Even if for the sake of
argument, if we presume that accurate photocopy has been
obtained by mechanical process, it is a matter of common
parlance that by inter-plotting some other photocopy on the said
photocopy, photocopy can be obtained, so the accuracy of the
photocopy is always surrounded by dark clouds of doubt. In the
present application since there is no averment under Section 65
of the Indian Evidence Act that photocopy was compared with the
original and it was accurate photocopy of the original and further
have not filed with affidavit with regard to person who has
obtained the said photocopy. From record it is difficult to hold the
hallmark, authenticity and accuracy of the photocopy.
12. In the case of United India Insurance Co. Ltd. Vs Anbari and
Others2 Hon'ble Supreme Court has held in para 3 as under :-
"3. Learned counsel for the appellant submitted that the point
regarding validity of the driver's licence was raised by the
appellant before the Motor Accidents 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 Rani3 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 through failure of the party, who
files it to prove it to be valid, the same party is not entitled
to introduce secondary evidence of its contents.
8. Essentially, secondary evidence is an evidence which may
be given in the absence of that better evidence which law
requires to be given first, when a proper explanation of its
absence is given. The definition in Section 63 is exhaustive
as the Section declares that secondary evidence "means
and includes" and then follow the five kinds of secondary
evidence.
9. The rule which is the most universal, namely that the best
evidence the nature of the case will admit shall be
produced, decides this objection that rule only means that,
so long as the higher or superior evidence is within your
possession or may be reached by you, you shall give no
inferior proof in relation to it. Section 65 deals with the proof
of the contents of the documents tendered in evidence. 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 provided by primary evidence. Section 65, however
permits secondary evidence to be given of the existence,
2000 (10) SCC 523
2007 (5) SCC 730
condition or contents of documents under the
circumstances mentioned. The conditions laid down in the
said Section must be fulfilled before secondary evidence
can be admitted. Secondary evidence of the contents of a
document cannot be admitted without non-production of the
original being first accounted for in such a manner as to
bring it within one or other of the cases provided for in the
Section. In Ashok Dulichand v. Madahavlal Dube and
Another [1975(4) SCC 664], it was inter alia held as
follows:
"After hearing the learned counsel for the parties, we
are of the opinion that the order of the High Court in
this respect calls for no interference. According to
clause (a) of Section 65 of Indian Evidence Act,
Secondary evidence may be given of the existence,
condition or contents of a document when the
original is shown or appears to be in 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 of any
person legally bound to produce it, and when, after
the notice mentioned in Section 66 such person does
not produce it. Clauses (b) to (g) of Section 65
specify some other 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 Photostat copy was
prepared and who was in possession of the original
document at the time its photograph was taken.
Respondent No. 1 in his affidavit denied being in
possession appeared to the High Court to be not
above suspicion. In view of all the circumstances, the
High Court to be not above suspicion. In view of all
the circumstances, the High Court came to the
conclusion that no foundation had been laid by the
appellant for leading secondary evidence in the
shape of the Photostat copy. We find no infirmity in
the above order of the High Court as might justify
interference by this Court."
14. From perusal of the law laid down by the Hon'ble Supreme
Court in Anbari and Others (supra) and J. Yashoda (supra) it is
crystal clear that clause (a) of the Section 65 of the Indian
Evidence Act, secondary evidence may be given of the
existence, condition or contents of a document 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
any person out of reach , or not subject to, the process of the
Court or of any person legally bound to produce it. Clause (b)
to (g) satisfies some other contingencies wherein secondary
evidence relating to document may be taken.
15. The petitioner failed to explain as to what were the
circumstances under which photocopy was prepared and who
was in possession of the original document at the time of
photocopy being prepared. In view of these circumstances, this
Court comes to conclusion that no foundation has been laid for
leading secondary evidence in the shape of photocopy. Thus, it
can be established that photocopy is neither primary evidence
nor secondary evidence because the parties are required to
prove whether the photocopy taken is the exact copy of the
original., therefore, in view of Section 65 of the Indian Evidence
Act the Revisional Court as well as the Judicial Magistrate First
Class have not committed any error while rejecting the
application.
16. The learned Judicial Magistrate First Class and learned
Revisional Court have not committed any illegality or
irregularities while rejecting the application for permission to
lead secondary evidence which warrants interference by this
Court exercising power under Article 226 of the Constitution of
India.
17. Accordingly, the writ petition (criminal) being devoid of merit is
liable to be and is hereby dismissed.
18. No order as to costs.
Sd/-
(Narendra Kumar Vyas)
Judge
Kishore
