1. In this petition filed under Section 482 Cr.P.C., the petitioners/A1 and A2 seek to quash the order dated 10.02.2014 in Crl.R.P.No.40 of 2012 passed by learned Metropolitan Sessions Judge, Cyberabad at L.B.Nagar, Hyderabad confirming the order dated 11.01.2012 in Crl.M.P.No.1 of 2011 in C.C.No.184 of 2011 passed by II Special Magistrate, Hasthinapuram, Ranga Reddy District.

2. The complainant filed C.C.No.184 of 2011 against A1 to A3 for the offence under Section 138 of Negotiable Instruments Act, 1881 (for short “NI Act”). In the said case he filed Crl.M.P.No.1 of 2011 under Section 63 of Indian Evidence Act to permit him to mark photostat copy of cheque bearing No.074191 dated 27.10.1999 as secondary evidence. His case was that at the time of filing the case his previous counsel filed original cheque and after taking cognizance, the counsel took back the original cheque to be produced at the time of trial by replacing with a photostat copy. However, the original cheque was misplaced in the office of his counsel and in spite of his best efforts the original cheque could not be traced till date. Hence, he may be permitted to mark the Photostat copy of the cheque available in the Court records as secondary evidence. The respondents/accused opposed the petition. The trial Court after enquiry allowed the petition permitting the complainant to mark the Photostat copy as secondary evidence.

3. Aggrieved, A1 and A2 preferred Crl.R.P.No.40 of 2012 but the same was dismissed by Metropolitan Sessions Judge, Cyberabad by confirming the order of the lower Court.

Hence, the instant Criminal Petition.

4. Learned counsel for petitioners contended that Courts below grossly erred in allowing the complainant to adduce the photostat copy of cheque as secondary evidence without the complainant establishing the facts that the cheque sought to be marked is the photostat copy of the original cheque and that the original cheque was lost. He contended that as per best evidence rule, the primary evidence has to be adduced for appreciation of Court and secondary evidence can be adduced only in very limited and exceptional circumstances as narrated in Section 65 of Indian Evidence Act and party who proposed to lead secondary evidence must cogently and convincingly establish the existence of circumstances narrated in Section 65. In the instant case, he argued, the complainant utterly failed to establish that there existed original cheque which was filed into Court and later it was replaced by photostat copy by his counsel and the same was lost in his office. The complainant has neither examined the advocate nor produced his affidavit in proof of such plea but still the Courts below on presumptions and assumptions accepted the alleged loss of cheque and permitted him to produce the copy of the cheque purported to be the photostat copy of the original. He vehemently contended that by the orders of the Courts below, great prejudice is caused to the defence of accused inasmuch as their plea before the trial Court was that they never issued cheque and if the photostat copy of the cheque were to be marked as secondary evidence, it cannot be sent to the FSL for comparison of the handwritings of the accused. He thus prayed to allow the petition and set aside the impugned order. He relied upon the following decisions.

1. J. Yashoda vs. K.Shobha Rani (AIR 2007 SC 1721)

2. Shalimar Chemical Works Ltd. vs. Surender Oil and Dal Mills (2010) 8 SCC 423)

3. Bobba Suramma vs.Peddireddi Chandramma (AIR 1959 AP 568)

4. Jaldu Ananta Raghuram Arya vs. Rajah Bommadevara Naga Chayadevamma (AIR 1958 AP 418)

5. Per contra, opposing the petition, learned counsel for 2nd respondent/complainant submitted that the original cheque issued by the accused was filed before the trial Court at the time of filing the criminal case and then only the trial Court, upon scrutiny, registered the criminal case and subsequently his counsel took return of the cheque by replacing the same with