Telangana High Court

D.Nagaraj And Another vs The State Of Telangana And Another on 9 March, 2023

Bench: G.Radha Rani

      THE HONOURABLE Dr. JUSTICE G. RADHA RANI
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            CRIMINAL REVISION CASE No.7 OF 2020

ORDER:

This Criminal Revision Case is filed by the petitioners - respondents -

accused aggrieved by the docket order dated 18.12.2019 passed in C.C.No.27 of

2016 on the file of XII Additional Chief Metropolitan Magistrate, Hyderabad.

2. The case of the prosecution in brief was that the petitioners - accused

were charged for the offences under Sections 420, 406 and 120-B of IPC on the

allegations that the complainant was a jewellery dealer and he used to make

ornaments by getting gold from various gold merchants. A1 and A2 were

proprietors of M/s. Sri Varalaxmi Jewellers at Siddiamber Bazaar, Hyderabad

and A1 used to place orders of jewellery whenever they required in their

jewellery shop and the complainant used to supply the ornaments required for

A1 at the place of his business and sometimes at the place of A1 and A2.

Dealings were going between the complainant and A1 and A2 since long time.

The complainant used to procure gold jewellery from makers of jewellery or the

complainant used to employ the ornament makers for making ornaments by

giving gold to them and supply jewellery to A1 and A2, in turn, A1 and A2 used

to give pure gold equivalent to ornaments weight and the business was going on

by give and take in good faith.

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2.1. The complaint gave orders for making ornaments to A1 and A2. The

details of which are as follows:

S.No. Date Ornaments weight of pure gold

1. 25.04.2013 Nankada (2 pairs) 70.298

2. 27.04.2013 Stone Necklace (2 sets) (85.134), CZ Necklace (4 sets) (134.762), Ruby Necklace (7 sets), Emerald gold bangles (one pair), 231.723, 66.952

3. 30.04.2013 Gundu Maala ( 3 pieces) 166.980

4. 06.05.2013 Bangles (one pair) 41.964, Necklace (one set) 50.419, Gundu Maala (3 sets), 170.17, Nakshi kada (2 pairs) 71.281, 96.012.

5. 11.05.2013 Necklace (2 sets) Long and Short Necklace (7 pieces) 340.390, Nankada one piece 8.964

6. 13.05.2013 Gundu Maala (2 sets) 88.650, Necklaces one piece 46.473 Long set, Necklaces 55.317, Bracelet one piece 15.901, Ruby Necklaces Set 31.263.

7. 16.05.2013 CZ American diamond NS-Haar (4 sets) 220.733, Bombay kada (3 pieces) 352.353

2.2. A1 and A2, though took the gold ornaments, did not give pure gold

equivalent to the gold ornaments supplied by the complainant. Moreover, A1

and A2 placed orders from various business people who were similarly situated

like the complainant, procured more and more ornaments and with a mala-fide

intention to cheat and misappropriate all the gold ornaments without giving pure

gold equivalent to ornaments, sold out all their immovable properties to their

close relatives and friends without the knowledge of the complainant and on

19.10.2013, A1 and A2 ran away by closing their jewellery shop by taking all

jewellery from their shop and absconded.

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3. At the time of filing charge-sheet it was mentioned therein that the

complainant furnished photo copies of gold receipts of M/s. Sri Varalaxmi

Jewellers represented by A1 and A2 and that the complainant would submit the

original receipts at the time of trial and that the complainant submitted a memo

only with receipts of photo copies filed with the case file.

4. During the course of trial, the complainant examined himself as PW.1 in

part. The prosecution sought to mark the photo copies of the bills contending

them as secondary evidence, which was objected by the defence, on the ground

that the photo copies could not be marked, PW.1 was not the scribe of the

documents or a signatory to the said documents.

5. Thereafter, the learned XII Additional Chief Metropolitan Magistrate,

Hyderabad passed the impugned order on 18.12.2019 observing that "the photo

copies sought to be marked are the payment particulars written on rolled papers

dated 27.04.2013, 30.04.2013, 25.04.2013, 06.05.2013, 09.05.2013, 11.05.2013,

13.05.2013 and 16.05.2013 , where there were some signatures on those copies.

As the photo copies were the carbon copies of the original documents signed by

some persons, it could not be said that the carbon copies were not primary

documents. The testimony of PW.1 would disclose that he used to send his

persons along with articles and used to obtain the signatures of the persons who

received the articles. Therefore, the carbon copies were with him and the

originals were with the accused. Under Section 66 of the Indian Evidence Act,

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when the document was in the custody of the adverse party, the adverse party

must produce the document which was in his custody. The dispute was in

respect of whether the documents sought to be marked are primary evidence or

secondary evidence which could be decided at a later point of time after a full-

fledged trial at the time of judgment. The accused was having every

opportunity to get record his objections on the documents which the prosecution

intended to exhibit through the prosecution witnesses and was also having an

opportunity to cross-examine the witnesses on those documents."

6. Aggrieved by the said order of the trial court, rejecting the submissions of

the learned counsel for the petitioner regarding the admissibility of the

documents, the petitioners - accused preferred this revision contending that the

documents sought to be received were inadmissible in evidence as they were

photo copies and not authenticated documents. The photo copies sought to be

marked were not signed by either of the parties and they would not assume the

character of the original document as held by the Hon'ble Apex Court in the

case of Mohinder Singh v. Jaswant Kumar and Others 1 in Civil Appeal

No.6706 of 2013 dated 11.09.2019. The court ought to have followed the

principles laid down in the Indian Evidence Act. Further PW.1 and the

petitioners were not the scribe or signatories to the said documents. The court

ought to have seen that if the original itself was found to be inadmissible

(2020) 20 SCC 456

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through failure of party, the same party was not entitled to introduce secondary

evidence and proof of its contents. It was necessary for the second respondent -

de-facto complainant to prove the existence and execution of original

documents and that the conditions laid down in Section 65 of the Indian

Evidence Act must be fulfilled before secondary evidence could be admitted.

The court below ought to have seen that as per clause (a) of Section 65 of the

Indian Evidence Act, secondary evidence might be given of the existence,

condition or contents of a document when the original was shown or appeared

to be in the possession or power of the person against whom the document was

sought to be proved or of any person out of reach of, or not subject to the

process of the court or any person legally bound to produce it, and when, after

the notice mentioned in Section 66, such person did not produce it, but in the

instant case, no such notice was served to the petitioners and the so called

documents were not in existence at all. Viewed from any angle, the order under

revision was not sustainable and liable to be set aside.

7. Heard the learned counsel for the petitioners and the learned Additional

Public Prosecutor and the learned counsel for the respondent No.2 -

complainant.

8. As seen from the facts of the case, the prosecution sought to introduce

certain bills signed by some persons which were photo copies, stating that they

could be accepted as secondary evidence.

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9. Section 63 of the Indian Evidence Act, 1872 deals with secondary

evidence and it reads as follows:

"63. Secondary evidence - Secondary evidence means and includes:-

(1) Certified copies given under the provisions hereinafter contained;

(2) Copies made from the original by mechanical processes which in themselves ensure 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."

10. The photo copies are sought to be introduced as one of the modes of

secondary evidence under Section 63 (2) & (3). But, the copies made from the

original by mechanical process either should ensure the accuracy of the copy or

should be compared with the originals to accept them as secondary evidence.

11. Section 65 also prescribes the conditions in which secondary evidence

relating to the existence, condition or contents of a document could be given.

Section 65 of the Indian Evidence Act reads as follows:

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

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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.

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12. Section 66 deals with rules as to notice to produce. Section 66 of the

Indian Evidence Act reads as follows:

66. Rules as to notice to produce.--Secondary evidence of the contents of the documents referred to in section 65, clause (a) , shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his attorney or pleader, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case:--

Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:--

(1) when the document to be proved is itself a notice;

(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;

(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;

(4) when the adverse party or his agent has the original in Court;

(5) when the adverse party or his agent has admitted the loss of the document;

(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.

13. The prosecution sought to prove the said documents as secondary

evidence under Section 65(a), contending that the original was in possession or

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power of the accused against whom the document was sought to be proved. But

Section 65 (a) includes that a notice as mentioned in Section 66 should be given

to the adverse party before producing such document and even after such notice,

the said person does not produce it.

14. Thus, a notice should be given to the accused persons by the prosecution

or the de-facto complainant who is alleging that the original documents were in

the possession of the accused as mentioned in Section 66 and if they failed to

produce it, is only entitled to produce the document as secondary evidence.

15. The learned counsel for the petitioners relied upon the judgment of the

Hon'ble Apex Court in Mohinder Singh v. Jaswant Kaur (Died) through

LRs. (1 supra) in civil appeal No.6706 of 2013 dated 11.09.2019, wherein it

was held that:

"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.

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.

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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, 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."

16. The High Court of Punjab and Haryana in Surinder Kaur v. Mehal

Singh 2 , while considering in what circumstances a photostat copy can be

entered in evidence and whether the photostat copy of a document comes within

the meaning and definition of secondary evidence as contained in Section 65 of

the Indian Evidence Act, held that:

"Photostat copy of a document is generally sought to be admitted as secondary evidence by virtue of Section 63 (2) of the Act which provides that copies of original made from mechanical process ensuring in itself the accuracy of such copies are admissible as secondary evidence. While the photostat copies can be used for court purposes as evidential documentation but it is desirable that original be examined in all possible cases but when

2014 (1) RCR (Civil) 467

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original is not available for reasons beyond one's control, photostat copy of a document may be examined to reach definite conclusions.

However, before that the party seeking to produce the same must show that any of the circumstances mentioned in Section 65 of the Act exists warranting leading of secondary evidence. The controversy is generally with regard to cases falling under clauses (a) or (c) of Section 65 of the Act wherein the original is alleged to be lost or in the possession of opposite party."

The Hon'ble Supreme Court in Ashok Dulichand v. Kumar Parveen, held that:

"while dealing with a case under clause (a) of Section 65 of the Act, upheld the decision of the High Court wherein it recorded a finding that the photostat copy did not appear to be above suspicion and could not be admitted. In arriving at this finding, the High Court considered the facts that there was no other material on the record (except the affidavit of appellant himself) to indicate that the original document was in the possession of respondent No. 1. The appellant 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 of or having anything to do with such document. Thus, it was held that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy."

In Smt. J. Yashoda v. Smt. K. Shobha Rani [2007 (2) RCR (Civil) 840], the Hon'ble Supreme Court, "while dealing with issue of admissibility of photocopy of a document, original whereof was in possession of third party, came to a conclusion that since, the conditions mentioned in Section 65 of the Act were not fulfilled, photostat copy could not be allowed to be produced as secondary evidence." The Hon'ble Supreme Court in H. Siddiqui (Dead) by LRs v. A. Ramalingam [2011 (2) RCR (Civil) 696, "while dealing with Section 65

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of the Act opined that though the said provision permits the parties to adduce secondary evidence, yet such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It has been further held that mere admission of a document in evidence does not amount to its proof. Therefore, it is the obligation of the Court to decide the question of admissibility of a document in secondary evidence before making endorsement thereon." Recently in U.Sree v. U.Srinivas [2013 (1) RCR (Civil) 883], the Hon'ble Supreme Court held that mere denial by the party to produce the original document in whose possession it is stated to be does not lay down foundational facts for producing secondary evidence.

The High Court of Punjab and Haryana further held that:

A doubt was, thus, created on authenticity of the photostat copy. It was therefore observed: "Photostat copies of documents can be prepared by manipulation and presented as original. Therefore, it would normally be unsafe on the mere asking to allow production of photostat copies as secondary evidence. These are admittedly not certified copies of the original and it is not clear as to whether these are copies of the original."

Thus it may be said that before being admitted as secondary evidence, being copies prepared by mechanical process, the authenticity of the photostat document has to be established where photostat copy of a document is produced and

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there is no proof of its accuracy or of its having been compared with or its being true reproduction of the original, it cannot be considered as secondary evidence. In other words, photostat copy of a document is not admissible as secondary evidence unless proved to be genuine or is admitted by opposite party.

17. The Punjab and Haryana High Court had laid down the following

principles before allowing photostat copies as secondary evidence:

"a) Photostat copy of a document can be allowed to be produced only in absence of original document.

b) When a party seeks to produce Photostat copy it has to lay the foundational facts by proving that original document existed and is lost or is in possession of opposite party who failed to produce it. Mere assertion of the party is not sufficient to prove these foundational facts.

c) The objections as to non existence of such circumstances or non existence of foundational facts must be taken at earliest by the opposite party after the photostat copy is tendered in evidence.

d) When the opposite party raises objection as to authenticity of the Photostat copy its authenticity has to be determined as every copy made from a mechanical process may not be accurate. Both the requirements of clause (2) of section 63 are to be satisfied.

e) Allowing production of Photostat copy in evidence does not amount to its proof. Its probative value has to be proved and assessed independently. It has to be shown that it was made from original at particular place and time.

f) In cases where the Photostat copy is itself suspicious it should not be relied upon. Unless the court is satisfied that the Photostat copy is genuine and accurate it should not be read in evidence.

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g) The accuracy of photostat copy shall be established on oath to the satisfaction of court by the person who prepared such copy or who can speak of its accuracy. The above said principles must be followed by the courts while admitting a photostat copy as secondary evidence and assessing its probative value."

18. In the present case also, no foundational facts were established by the

prosecution before seeking to admit the photo copies of the bills as secondary

evidence as stated above. Mere assertion of the party is not sufficient to prove

the foundational facts and mere denial by the party to produce the original

document in whose possession it was stated to be also does not lay down the

foundational facts for producing secondary evidence. The prosecution has to

prove the existence and execution of the original document before producing

the secondary evidence. Since the conditions laid down in Section 65 of the

Indian Evidence Act were not fulfilled, the trial court ought not to have allowed

the photostat copies to be produced as secondary evidence.

19. Hence, it is considered fit to set aside the docket order dated 18.12.2019

passed by the XII Additional Chief Metropolitan Magistrate, Hyderabad in