Punjab-Haryana High Court
Balraj Singh vs Hdfc Bank Limited on 14 December, 2023
Neutral Citation No:=2023:PHHC:160815
CRM-M No.19897 of 2019 -1- 2023:PHHC:160815
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M No.19897 of 2019 (O&M)
Reserved on: 04.12.2023
Pronounced on:14.12.2023
Balraj Singh ...Petitioner
Versus
HDFC Bank Limited ...Respondents
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Ravish Bansal, Advocate
for petitioner.
Mr. Saurabh Bhardwaj, Advocate
for respondent.
****
HARPREET SINGH BRAR, J.
1. The present petition under Section 482 of CrPC is preferred against the
impugned order dated 26.03.2018 (Annexure P-6) passed by learned Judicial
Magistrate Ist Class, Bathinda vide which application dated 22.03.2018 filed
by the respondent to lead secondary evidence to prove cheque return memo
dated 30.01.2014 was allowed and also against dismissal order dated
10.04.2019 (Annexure P-8) passed by learned Additional Sessions Judge,
Bathinda in revision petition filed against the above-mentioned order.
2. The facts, in brief, are that the petitioner-accused availed Kisan Gold
Card (KGC) of `21,40,000/- vide account No.22538040000042 from the
respondent-complainant. In order to discharge his legal liability, the petitioner
issued a cheque No.008916 dated 30.01.2014 for the amount of Rs.21,40,000/-
out of his bank account No.22531690000044 in favour of the respondent. The
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cheque was dishonoured on presentation vide memo dated 30.01.2014 with the
remarks "funds insufficient." Thereafter, a legal notice dated 25.02.2014 was
served upon the petitioner. In response, the petitioner sought for a period of 7
days to make the requisite payment. However, he failed to make said payment
and a criminal complaint under Section 138 of the Negotiable Instruments Act
(hereinafter referred to as 'NI Act') read with Section 420 of the IPC was filed.
3. Due to oversight on part of the respondent, cheque dishonour memo
dated 30.03.2014 was exhibited instead of memo dated 30.01.2014. An
application to lead secondary evidence to prove and produce the memo dated
30.01.2014 was moved by the respondent, which was allowed by the learned
trial Court vide order dated 26.03.2018.
4. The petitioner preferred a revision against the order dated 26.03.2018
before the learned Revisional Court but the same was dismissed vide order
dated 10.04.2019.
5. Learned counsel for the petitioner inter alia contended that the approach
of the learned trial Court in granting opportunity to the respondent-complainant
to prove the memo dated 30.01.2014 by leading secondary evidence is contrary
to settled law. The alleged memo dated 30.01.2014 cannot be allowed to be
produced by way of secondary evidence, as the memo dated 30.03.2014 has
already been exhibited and is available on record. The memo dated 30.03.2014
cannot be said to be an accidental oversight or bona fide mistake and the
respondent-complainant had failed to explain how memo dated 30.03.2014
came into existence in respect of the same cheque and the complainant-
respondent cannot be allowed to fill the lacuna in its case. He relied upon the
judgments of the Hon'ble Supreme Court in Smt. J. Yashoda Vs. Smt. K.
Shobha Rani 2007 (2) RCR (Civil) 840 and Vijay Vs. Union of India and
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others passed in Civil Appeal No.4910 of 2023 decided on 29.11.2023 to
contend that photocopies of the originals cannot be produced as secondary
evidence in terms of Section 63 of the Indian Evidence Act.
6. Per contra, learned counsel appearing for the respondent-
complainant submitted that there is no dispute with regard to cheque number
and cheque amount. On presentation, the cheque was first processed by the
Head Office at Mumbai and in the event of dishonour of the cheque, memo is
prepared by the Bank at Mumbai and Local Branch was informed thereafter.
The local bank on receiving the information from the Head Office, Mumbai
issued the memo making endorsement of 'dishonour of cheque'. Learned
counsel for the respondent-complainant further contended that the cheque in
question was returned dishonoured vide memo dated 30.01.2014. The legal
notice was issued and a specific demand was made on the basis of memo dated
30.01.2014 and after expiry of the statutory period, the complaint was filed
under Section 138 of the NI Act. Even in the complaint, there is a mention of
cheque returning memo dated 30.01.2014 but while exhibiting documents due
to rush of work and oversight, inadvertently memo dated 30.03.2014 issued by
the local branch was exhibited instead of memo dated 30.01.2014 issued by the
Head Office branch at Mumbai. As such, the respondent-complainant has
approached the learned trial Court for proving memo dated 30.01.2014 as
secondary evidence.
7. Having heard learned counsel for the parties and after perusal of the
record of the case with their able assistance, it transpires that the complaint as
well as the legal notice specifically mentions the date of cheque return memo
as 30.01.2014 and there is no mention of memo dated 30.03.2014 issued by the
local branch. The legal notice was issued to the petitioner by raising a specific
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demand of the cheque amount on 25.02.2014 and therefore, it is impossible to
consider the date of memo as 30.03.2014. The trial is at the stage of recording
of complainant's evidence and therefore, no prejudice is going to be caused to
the petitioner as he would get sufficient opportunity to cross-examine the
witnesses and lead his evidence to rebut the presumptions created in favour of
the respondent-complainant under Sections 118 and 139 of the NI Act, as the
petitioner is only required to raise a probable defence casting a doubt on the
existence of consideration which he can do by adducing direct evidence,
circumstantial evidence or even on the basis of presumptions of law or fact.
Furthermore, the judgments relied upon by the petitioner are not applicable to
the facts and circumstances of the present case.
8. A Division Bench of this Court in Bharat Dixit Vs. Smt. Usha Dixit
2023 (4) RCR (Civil) 39 has summarized the following parameters on the basis
of which secondary evidence can be taken:-
"29. In view of the aforesaid discussion. the following parameters
are summarised below for the purpose of taking secondary
evidence:-
(i) the party seeking to lead documentary evidence must lay
down some foundational evidence either in the plaint or in
the written statement as the case may be that the alleged
copy is in fact the true copy of the original;
(ii) the party seeking to lead secondary evidence should
demonstrate the exact inability in producing the original;
(iii) that there is no requirement that an application for
leading secondary evidence is filed in terms of section 65
(c) of the Indian Evidence Act before such evidence is led;
(iv) that the trial Court is not required to pass detailed
order allowing or rejecting the objection with regard to the
admissibility of secondary evidence at the time when such
objection is taken;
(v) that the trial Court can proceed further by marking the
document and decide the admissibility of such document on
the basis of the evidence led at the time of passing of the
final judgment;
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(vi) that if the trial Court finds that the party seeking to lead
secondary evidence has failed to prove the document in
accordance with law such document should be eschewed
from evidence;
(vii) that the authenticity of the copy shall be established on
oath by executant or by the person who prepared such copy
from the original."
9. One of the condition precedent in leading secondary evidence is that the
applicant must lay down some foundational evidence in the pleadings. In the
present case, the foundational evidence for leading secondary evidence has
already been laid down in the legal notice dated 25.02.2014 and in the
complaint itself the cheque return memo dated 30.01.2014 has been
specifically mentioned. Furthermore, production of such evidence would assist
the Court in discovering the truth in the pursuit of justice. Depriving the
respondent-complainant from bringing on record best evidence available with
him would amount to denial of free and fair trial as enshrined under Article 21
of the Constitution of India.
10. In view of the aforesaid facts and circumstances, no illegality or
perversity is found in the impugned order dated 26.03.2018 passed by the
Judicial Magistrate 1st Class, Bathinda, which has been affirmed vide order
dated 10.04.2019 passed by the Additional Sessions Judge, Bathinda.
Consequently, the instant petition stands dismissed.
(HARPREET SINGH BRAR)
JUDGE
December 14, 2023
Pankaj* Whether speaking/reasoned Yes
Whether reportable Yes
Neutral Citation No:=2023:PHHC:160815
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