M.S.M.R.Srinivasagam vs Joseph
2023 Latest Caselaw 346 Mad

                                                                                  Crl.R.C.(MD).No.200 of 2022


                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                        Dated: 05.01.2023

                                                            CORAM

                                    THE HONOURABLE MR. JUSTICE G.ILANGOVAN

                                                Crl.R.C.(MD).No.200 of 2022
                                              and Crl.M.P.(MD).No.2937 of 2022

                     M.S.M.R.Srinivasagam                                           ... Petitioner

                                                              Vs.

                     Joseph                                                         ... Respondent

                     PRAYER: This Criminal Revision Case is filed under Sections 397 and

                     401 of the Criminal Procedure Code, to call for the records in Crl.M.P.No.

                     3003 of 2021 in C.C.No.28 of 2015 on the file of the Judicial Magistrate,

                     Fast Track Court (Magisterial Level), Kovilpatti and set aside the order,

                     dated 16.11.2021.

                                       For Petitioner     : Mr.S.Pon Senthil Kumaran

                                       For Respondent     : Mr.P.Selva Kamatchi

                                                            ORDER

This Criminal Revision Case has been filed against the order of

dismissal that was passed by the trial Court dismissing the petition that was

filed by the revision petitioner seeking permission for leading secondary

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.200 of 2022

evidence.

2.The facts in brief:

The revision petitioner filed a private complaint under Section 200

Cr.P.C. against the respondent for the offences punishable under Section 138

of the Negotiable Instruments Act. So along with the above said complaint,

he submitted the original cheque before the trial Court. After presenting the

complaint, he got the original cheque returned and thereafter, it was found

missing. In spite of his best efforts, he could not find out the missing

cheques. So he filed the above said petition and that came to be dismissed

by the trial Court finding that the conditions for leading the secondary

evidence has not been full filled and there is no proof to show the loss of the

original document.

3.Only a short point arises for consideration as to whether the original

document is missing or not, which is matter of fact, which got to be proved

by the revision petitioner at the time of trial.

4.The above said fact cannot be decided on the basis of petition. The

evidence ought to have been recorded by the trial Court and only during the

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.200 of 2022

course of the evidence, which may brought on record, the truth of the

statement can be found out. But even without recording the evidence, the

above said petition came to be dismissed by the trial Court. The

foundational facts must be established. So I am of the considered view that

the trial Court has committed an error in deciding the issue on the basis of

the petition. So the revision petitioner ought to have been given an

opportunity to lead evidence to prove the fact of missing of the original

document. After the preliminary conditions are satisfied, then only the other

requirement, i.e., whether the photocopy can be permitted to be marked will

arise. But the facts remains that original was produced along with

complaint, thereafter only it was returned and lost.

5.Even though the counsel for the revision petitioner relied upon the

order that has been passed by this Court in the case of N.Jayalakshmi Vs.

V.Kannan in Crl.R.C.(MD).No.161 of 2014 and the Judgment of the

Honourable Madhya Pradesh High Court in the case of Sailendra Jain Vs.

Jinesh Jain, I am of the considered view that the matter can be remitted

back to the trial Court with directions.

6.Accordingly, this criminal revision case is allowed. The matter is

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.200 of 2022

remitted back to the trial Court concerned with the following directions.

The petition that has been filed by the revision petitioner shall be restored to

the file of the trial Court and the petitioner must be given opportunity to

lead evidence in the main case itself to lay foundational facts for leading the

secondary evidence. After the foundational facts are brought on record, the

question with regard to secondary evidence may also be decided by the trial

Court. Consequently, connected miscellaneous petition is closed.

                                                                                          05.01.2023
                     NCC          : Yes/No
                     Index        : Yes / No
                     Internet     : Yes / No

                     TM

                     To

1.The Judicial Magistrate, Fast Track Court, (Magisterial Level), Kovilpatti.

2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.200 of 2022

G.ILANGOVAN,J.

TM

Crl.R.C.(MD).No.200 of 2022

05.01.2023

https://www.mhc.tn.gov.in/judis