Section 138 NI Act: If original registry receipt of legal notice is lost, complainant can prove the same through secondary evidence [Read the Order]

A bench of Justice Shrivastava)in the case titled Shivraj Singh Yadav vs Prateek Jain on 21.10.2019 has allowed a complainant to lead secondary evidence when it found that the original receipt was lost.

During the pendency of the trial of a cheque bounce case, the complainant moved an application under Section 65 of the Evidence Act stating therein that when the applicant appeared before the trial Court, then he came to know that he lost the original registry receipt of legal notice and receiving receipt of the same and inspite of his best efforts, the same could not be traced out, hence he sought permission to file the photocopy of the receipts in the Court as secondary evidence.The trial Court  dismissed the aforesaid application preferred by the applicant. Being aggrieved by the impugned order, the applicant has preferred a petition before the High Court.

Madhya Pradesh High Court observed and held as under:

"In view of the aforesaid case law, first of all it is must for the party who seeks permission to lead the secondary evidence to prove prima facie that there was an existence of the original and the same has been lost or destroyed and other original copy is also not in existence.

Thereafter, the party concern is also required to establish prima facie that the photocopy has been prepared from the relevant original document by mechanical process.

In this regard it has to be explained as to what was the circumstances under which the photostate copy was prepared and who was in possession of the original document at the time when photostate copy was prepared, and by whom or under whom direction and presence it was prepared.

The party may seek permission with a view to establish prima facie the aforesaid facts and submit an affidavit or other relevant document for satisfaction of the Court and the Court after considering the affidavit or other relevant document on satisfaction may allow the photostate copy of original document as secondary evidence.

In absence of aforesaid satisfaction or reasonable suspicion about the genuineness of the photocopy of the original document the Court may disallow the prayer.....

In the aforesaid background of the legal position, it is seen that whether in the present case, the applicant is entitled to lead secondary evidence as a photostate copy of the lost original document.

On perusal of the record, it appears that the original registry receipt and receiving receipt of the legal notice have been lost and this fact has also been mentioned in the application itself; therefore, so far as requirement of Section 65 C of the Evidence Act is concerned, in this case, the applicant has fulfilled or prima facie established the fact that the original registry receipt and the receiving receipt were lost.

In the aforesaid circumstances he should be permitted to lead secondary evidence and in this regard he should be allowed to summon the witnesses or to call the record from the authority i.e post office".

Read the Order here:

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