[Cites 2, Cited by 0]
Rajasthan High Court - Jodhpur
Pradeep Dave vs State Of Rajasthan (2026:Rj-Jd:4076) on 22 January, 2026
[2026:RJ-JD:4076]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 512/2026
Pradeep Dave S/o Shri Pukhraj Dave, Aged About 49 Years, R/o
Deen Haveli, Brahmpuri, Mahamandir, Jodhpur Rajasthan
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Sunita Prajapat W/o Shri Premkumar, R/o Near Sardarmal
Sabzi Bhandar Ke Pass Wali Gali, Gol Building, First B
Road Sardarpura, Jodhpur, Rajasthan.
3. Premkumar Prajapat S/o Shri Sardarmal, R/o Near
Sardarmal Sabzi Bhandar Ke Pass Wali Gali, Gol Building,
First B Road Sardarpura, Jodhpur, Rajasthan.
----Respondents
For Petitioner(s) : Mr. Dharmendra Singh Gaur
Mr. Pradyum Patel
Mr. Praveen Dayal Dave
Ms. Vijaylaxmi Kanwar
Ms. Arti Jangra
For Respondent(s) : Mr. Vikram Rajpurohit, PP
Mr. Mahendra Prajapat
HON'BLE MR. JUSTICE BALJINDER SINGH SANDHU
Order
22/01/2026
Learned counsel for the petitioner has preferred the present
criminal miscellaneous petition, being aggrieved by the order dated
25.11.2025, whereby the application filed by the respondent-accused
under Section 65 of the Evidence Act for bringing on record the
secondary evidence pertaining to the photocopy of a demand draft was
allowed, as well as the order dated 15.12.2025 passed by the learned
Additional District Judge No.3, Jodhpur Metropolitan, whereby the
revision petition was rejected.
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The facts of the case are that the respondent-accused
initially filed an application for bringing on record a photocopy of
demand draft No. 55560 for an amount of Rs. 2.5 lakh, which was
alleged to have been given by the accused to the complainant for
refund of the amount and which is stated to have been refused by
the complainant. The application dated 18.08.2025 was filed by
the accused merely stating that the demand draft was offered to
the complainant, which was refused, and thereafter, since the
same was expiring, it was presented to the bank and the amount
was withdrawn, which stands deposited in their bank account.
Therefore, along with the photocopy of the demand draft, the
bank statement was also placed on record.This application was
initially allowed by the learned trial Court on 17.09.2025;
however, in the revision petition filed by the complainant, the
matter was remanded back vide order dated 10.11.2025.
Thereafter, the learned trial Court again upheld its earlier order
and allowed the application vide order dated 25.11.2025.
Subsequently, a revision petition was preferred before the learned
Additional District Judge No.3, Jodhpur Metropolitan, and the
same has been dismissed on the ground that it was not
maintainable, being an interlocutory order.
Learned counsel submits that the application filed by the
respondent does not disclose any reason nor does it state that any
efforts were made at his behest to procure the original document
or any document from the bank, and in the absence of the same,
the application under Section 65 of the Evidence Act could not
have been allowed by the learned trial Court. Learned counsel for
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the petitioner, in support of his contention, places reliance upon
the judgments of the Hon'ble Apex Court in Rakesh Mohindra v.
Anita Beri & Others and H. Siddiqui (Dead) by Lrs. v. A.
Ramalingam, wherein it has been laid down that before secondary
evidence can be permitted under Section 65 of the Evidence Act,
the party seeking to rely upon such evidence must lay a proper
factual foundation by specifically pleading and establishing the
reasons for non-production of the original document and the
efforts made to procure the same.
The petitioner, relying upon this judgment, states that it is
mandatory for the applicant to specifically state that the alleged
document could not be procured by him despite efforts made and
that he was unable to produce the same for reasons beyond his
control. He further states that the application does not state a
single line as to the efforts made by him to procure the original
document or any efforts made by him to obtain such denial from
the bank.
Learned counsel for the respondent is not in a position to
dispute that the application does not contain any such averment
bringing on record the efforts made by him to procure the original
document or any efforts made before the bank, or that the bank
has denied providing the original which was submitted by them.
This Court has considered the rival contentions of the parties
and application filed by the respondent-accused and the orders
impugned. The Hon'ble Apex Court in the judgments referred to
above clearly lays down that the pre-condition for leading
secondary evidence under Section 65 of the Evidence Act is that
the original document could not be produced by the party relying
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upon such document, despite best efforts, and that the party was
unable to produce the same for reasons beyond his control. In
Rakesh Mohindra v. Anita Beri & Others (2016) 16 SCC 483,
the Hon'ble Supreme Court observed that the preconditions for
leading secondary evidence are that such original documents
could not be produced by the party relying upon such documents
in spite of best efforts, being unable to produce the same which is
beyond their control and that the party sought to produce
secondary evidence must establish the non-production of primary
evidence by laying a proper factual foundation. In H. Siddiqui
(Dead) by Lrs. v. A. Ramalingam (2011) 4 SCC 240, it was
reiterated that unless the non-production of the original is
accounted for by leading a factual foundation within the meaning
of Section 65, it is not permissible for the court to allow a party to
adduce secondary evidence.
Upon considering the application filed by the respondent, this
court finds that the pre-conditions laid down by the Hon'ble Apex
Court are completely missing in the application. The learned
counsel for the respondent is also not in a position to dispute this
fact, He, therefore, submits that he may be granted liberty to file
a fresh application, providing an opportunity to bring on record the
efforts made by him, and although such efforts were allegedly
made, they were not mentioned in the original application.
Learned counsel for the petitioner does not oppose this
prayer.
In view of the above, this court is inclined to interfere in the
matter, in light of the law laid down by the Hon'ble Apex Court.
The orders dated 25.11.2025 passed by ACJM, No.5, Jodhpur
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Metropolitan, as well as the order dated 15.12.2025 passed by
ADJ No.3, Jodhpur Metropolitan are quashed and set aside.
However, liberty is granted to the respondent-accused to file a
fresh application, which shall be considered by the learned trial
court in accordance with law, on its own merits.
With these observations, the present criminal misc. petition
is allowed with the aforesaid liberty.
(BALJINDER SINGH SANDHU),J
12-deep/-
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