Telangana High Court

M/S. Vision Ventures Ltd. vs The State Of Telangana on 5 March, 2021

Bench: K.Lakshman

           HONOURABLE SRI JUSTICE K. LAKSHMAN

               CRIMINAL PETITION No.1374 OF 2020
ORDER:

The present Criminal Petition is filed under Section - 482 of the

Code of Criminal Procedure, 1973 (for short 'Code'') to quash the

order dated 11.02.2020 passed in Crl.M.P. No.206 of 2020 in C.C.

No.5 of 2019 by the II Special Magistrate at Hyderabad.

2. Heard Mr. A. Tulsi Raj Gokul, learned counsel for the

petitioners, and Mr. N. Srikanth Goud, learned counsel for respondent

No.2 herein.

FACTS:

3. Respondent No.2 herein filed a complaint under Section -

200 of the Code against the petitioners herein for the offence under

Section - 138 of the Negotiable Instruments Act, 1881 (for short 'Act,

1881') vide C.C. No.5 of 2019. In the said complaint, respondent

No.2 herein has specifically mentioned about issuance of cheques

bearing No.000760 and 000764, dated 20.01.2012 and 29.01.2012 for

Rs.1,20,00,000/- 10,00,00,000/- respectively, both drawn on AXIS

Bank by the petitioners herein towards repayment of legally

enforceable debt to respondent No.2 herein. In the list of documents,

respondent No.2 has specifically mentioned about the said cheques

and also other documents.

4. On complying with the procedure laid down under Section -

200 of the Code, the learned Magistrate has taken cognizance of the KL,J Crl.P. No.1374 of 2020

offence under Section - 138 of the Act, 1881 against the petitioners

herein and others. A perusal of the Photostat copies of the certified

copies of the complaint would reveal that respondent No.2 has filed

the said fifteen (15) documents in original along with complaint and

he has received all the original documents on 19.06.2012. After

verification of original documents with the Photostat copies thereof,

according to respondent No.2, when complaints filed under Section -

200 of the Code, learned Magistrates are insisting to file the original

documents along with complaint, and after verification of original

documents with the Photostat copies, learned Magistrates are

returning the said originals for safe custody and permitting the

complainants to file originals at the time of marking of documents.

According to him, in the present case also, the learned Magistrate has

returned the originals to the complainant after verification on

19.06.2012. On satisfying with the originals only, the learned

Magistrate has taken cognizance for the offence under Section - 138

of the Act, 1881 and issued summons to the petitioners - accused and

other accused.

5. Respondent No.2 herein has filed an application vide

Crl.M.P. No.206 of 2020 in C.C.NO.5 of 2019 under Section 65 (C)

of the Indian Evidence Act, 1872 (for short 'Act, 1872') stating that

the complainant has filed fifteen (15) original documents along with

complaint, and after verification, the learned Magistrate returned the

same with an undertaking to produce the same at the time of trial.

KL,J Crl.P. No.1374 of 2020

The said documents were misplaced in the Company, and despite its

best efforts, it could not trace the originals. Therefore, respondent

No.2 herein sought permission to file Photostat copies of the said

documents and mark the same.

6. A counter was also filed by the petitioners herein opposing

the said petition. In the counter, it is contended by the petitioners that

Photostat copies are inadmissible in evidence as held by the Hon'ble

Supreme Court in U. Sree v. U. Srinivas [ (2013) 2 SCC 114] and,

therefore, the same cannot be received as secondary evidence.

Respondent No.2 has to adduce secondary evidence of the documents

invoking under Section 65 (C) of the Act, 1872, loss of originals has

to be proved beyond reasonable doubt as held by the Apex Court in

2007 (5) ALD 97 (SC). They further contended that respondent No.2

has not established with regard to the misplacement of the original

documents and there is no factual foundation laid down by respondent

No.2. It is further contended that the said petition is not maintainable

since the Act, 1872 completely bars any other kind of secondary

evidence except certified copy and, in proof of the same, the

petitioners herein have relied upon the principle laid down by the

Allahabad High Court in Ganesh Prasad v. M/s. Badri Prasad

Bholanath [ AIR 1980 ALL 361]. With the said contentions, the

petitioners herein sought to dismiss the petition filed under Section -

65 (C) of the Act, 1872 vide Crl.M.P. No.206 of 2020.

KL,J Crl.P. No.1374 of 2020

FINDING OF THE COURT BELOW:

7. The learned Magistrate, on consideration of the contentions

raised by both sides, allowed Crl.M.P. No.206 of 2020 in C.C. No.5 of

2019 vide order dated 11.02.2020 by relying upon the principle laid

down by the Apex Court and the High Court of Judicature at

Hyderabad for the States of Telangana and Andhra Pradesh in

Krishnapatnam Port Co. Ltd., Hyderabad v. Cargill India Pvt.

Ltd., New Delhi1.

8. Feeling aggrieved by the said order, the petitioners herein

filed the present petition under Section - 482 of the Code to quash the

same.

SUBMISSIONS OF THE PETITIONERS:

9. Mr. A. Tulsi Raj Gokul, learned counsel for the petitioners,

by referring to the principle laid down by the Apex Court in Rakesh

Mohindra v. Anita Beri2 and other judgments, would submit that

respondent No.2 failed to lay a factual foundation with regard to its

contention that the documents were misplaced. According to him,

respondent No.2 has not even filed any affidavit before the Court

below and also before this Court. They have also not lodged any

complaint with police concerned with regard to the said misplacement

of original documents. Respondent No.2 has filed the application

under Section - 65 (C) of the Act, 1872 in a casual and routine manner

without laying factual foundation. The amount involved under the

. 2018 (5) ALD 13 (DB)

. (2016) 16 SCC 483 KL,J Crl.P. No.1374 of 2020

cheques in dispute is huge amount, and even then respondent No.2 did

not take any steps including filing of affidavit on factual foundation

and lodging of complaint about misplacement of original documents.

Though a detailed counter was filed resisting the said application, the

learned Magistrate by relying upon the principle laid down by the

Apex Court and a Division Bench of High Court of Judicature at

Hyderabad in Krishnapatnam Port Co.Ltd.1 allowed the said

application. The impugned order is contrary to the procedure laid

down under Section - 65 of the Act, 1872 and also the principle laid

down by the Apex Court. With the said contentions, the learned

counsel sought to quash the impugned order.

SUBMISSIONS OF RESPONDENT No.2:

10. On the other hand, Mr. N. Srikanth Goud, learned counsel

for respondent No.2 would submit that respondent No.2 has filed all

the original documents which are fifteen (15) in number along with

the complaint itself. After verification of the said originals with the

Photostat copies thereof, the learned Magistrate has returned the same

with an undertaking to produce the originals at the time of trial. On

giving such an undertaking by respondent No.2, the learned

Magistrate has returned the original documents to respondent No.2 on

19.06.2012, and in proof of the same, respondent No.2 has filed

Photostat copy of certified copy of complaint in C.C. No.5 of 2019.

The learned counsel for respondent No.2 would further submit that

respondent No.2 has filed an application under Section - 65 (C) of the KL,J Crl.P. No.1374 of 2020

Act, 1872 duly signed by respondent No.2 specifically contending that

the documents were misplaced, and despite its best efforts, it could

not trace out the originals. The said petition itself is a factual

foundation, and thus, respondent No.2 has laid a factual foundation

with regard to the misplacement of said documents. Just because

respondent No.2 did not lodge any complaint with the police

concerned with regard to the said misplacement of documents,

petition under Section - 65 of the Act, 1872 cannot be thrown away at

the initial stage. According to him, the learned Magistrate has rightly

allowed the application filed by respondent No.2 herein by relying on

the principle held by this Court in Krishnapatnam Port Co.Ltd.1 and

there is no error in it.

FINDING OF THE COURT:

11. There is no dispute that respondent No.2 filed a complaint

under Section - 200 of the Code for the offence under Section - 138 of

the Act, 1881 against the petitioners herein and others and it is also

not in dispute that respondent No.2 herein has filed original

documents as mentioned in the list of documents appended to the

complaint. In the Photostat copy of the certified copy of the said

complaint, it is specifically mentioned that the original documents

filed in the Court along with complaint returned to respondent No.2

herein on 19.06.2012. A perusal of the cause title of the complaint

would reveal that this Court vide order dated 11.09.2018 in Crl.P.

Nos.626 and 4279 of 2013, quashed the proceedings against accused

Nos.4, 5 and 7 in C.C. No.5 of 2019.

KL,J Crl.P. No.1374 of 2020

12. Respondent No.2 has filed an application under Section -

65 (C) of the Act, 1872, specifically contending that it has filed

original documents along with complaint and after verification, the

said documents were returned to it on giving an undertaking to

produce the same at the time of trial. The said documents were

misplaced in the office of respondent No.2, and despite best efforts, it

could not trace out the said documents and, therefore, sought

permission of the Court below to file Photostat copies of said

documents and to leave secondary evidence. It is also relevant to note

that the GPA Holder of respondent No.2 has also signed the said

petition.

13. In Krishnapatnam Port Co.Ltd.1 a Division Bench of

High Court of Judicature at Hyderabad for the States of Telangana

and Andhra Pradesh had an occasion to deal with the scope and ambit

of Section - 65 of the Act, 1872 and also the issue of filing an affidavit

affirming that the documents were lost while office was being shifted

and case files were being transferred from one team to another. In the

said case, the original documents were misplaced while shifting the

office and a sworn affidavit was filed to the said effect. Considering

the said aspects, the Division Bench determined the following five

(05) points:

"1. Whether the xerox copies of the documents would amount to secondary evidence.

2. Whether the original documents of the documents, sought to be admitted, are proved as lost.

3. Whether the notice mandated by Section 66 of the Indian Evidence Act is necessary before admitting the documents.

KL,J Crl.P. No.1374 of 2020

4. Whether the failure of the respondent to seek permission of the court, for filing documents, at a alter stage of filing the plaint, would make the petition liable for dismissal.

5. Whether the power under Article 227 of the Constitution of India need to be exercised in this case.

6. To what result."

14. By referring to the principle laid down in various

judgments, the Division Bench held with regard to point No.1 that it

can be understood that the Courts have been permitting admission of

Photostat copies into evidence, but the nature of the documents and

the probative value of the documents and possibilities of tampering

the documents have to be taken into consideration, before permitting

Photostat copies into evidence. On the second point, the Division

Bench held that the respondent therein filed his affidavit and affirms

that the documents were lost while the office was being shifted and

the case files were being transferred from one team to another. By

referring to the same, the Division Bench was inclined to accept the

said approach adopted by it and consider the sworn affidavit of the

respondent as sufficient to prove the fact of loss of originals.

15. With regard to point No.3, the Division Bench held as

under:

"21. A reading of the above provision would show that the notice under Section 66 of the Act is necessary when the original is shown to be in possession of the person against whom the document is sought to be proved or is in possession of any person out of reach or not subject to the process of the Court or of any person who is legally bound to produce it. In order to seek dispensation of notice under Section 66 of the Act, the KL,J Crl.P. No.1374 of 2020

respondent should succeed in proving that the original document is in his own possession and is not in possession of a person against whom it is sought to be proved or is not in possession of any person out of reach or not subject to the process of the Court or any person legally bound to produce it. The documents, sought to be admitted in this case are of different categories. The table contains the list of 32 documents.

The first document is the purchase order placed by the plaintiff on Cargill International S.A., Geneva, a copy of which can be expected to be available with the respondent. So also the documents at Sl.Nos.3, 5, 6, 7, 10 and 13. Items 2, 4, 8, 9, 11, 12, 14 to 21, 24, 25, 29 are the documents for which also copies can be expected to be available with the petitioner. Items 22, 23, 26, 28, 30 and 31 are the correspondence between two third parties, of which probably the petitioner may not have the copies. No explanation is found in the petition, with regard to the probability of the copies of the above documents being with the petitioner. In Ehtisham's case the Apex Court observed that the law is well settled that if a party wishes to lead secondary evidence the court is obliged to examine the probative value of the document produced in the court or their contents and decide the question of admissibility of a document in secondary evidence and at the same time the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the document falls under section 65(a) of the Act, notice under section 66 of the act becomes necessary. Hence, the notice under Section 66 of the Act is required to be given to the party in whose possession the original or the copies of the documents are, for production of such copies.

The point is answered accordingly."

KL,J Crl.P. No.1374 of 2020

16. In view of the law laid down by the Division Bench in

Krishnapatnam Port Co.Ltd.1 and also as discussed above,

respondent No.2 has filed original documents along with the

complaint and the same were returned to it after verification of the

same upon obtaining an undertaking from respondent No.2 to the

effect that it would produce the same at the time of trial. On

verification of the same only, the learned Magistrate has taken the

cognizance of the offence under Section - 138 of the Act, 1881 vide

C.C. No. 5 of 2019. The learned Magistrate then issued summons to

the petitioners herein and other accused. There is an endorsement to

the said effect in the complaint itself.