Petitioners are accused Nos.1 to 5 in C.C.No.22346/2001 pending on the file of 10th Addl.C.M.M., Bangalore City.

2. Respondent has filed a private complaint under Section 200 of Cr.P.C. for an offence punishable under Sections 323, 341, 342, 365, 387, 417, 419, 420, 426, 440, 506B r/w Sections 24, 25, 26 and 34 of the IPC.

3. The learned Magistrate after recording sworn statement and considering the material produced by the complainant, ordered for issue of summons and now posted for evidence.

4. Complainant had filed an application under Section 91 of Cr.P.C. interalia seeking direction to the accused No.1 or its M.D. to produce the Memorandum of Understanding (M.O.U.) entered into between the first accused and complaint on 16.4.1994. The learned Magistrate by his order dated 21.2.2007 rejected the said application and directed both the parties to go on with the matter on the day to day basis. The said order was called in question before the IV Addl. City Civil and Sessions Judge, Mayo Hall Unit, Bangalore, in Criminal Revision Petition No.25051/2007. The learned Sessions Judge by his order dated 3.1.2009 confirmed the order of the learned Magistrate.

5. Complainant is examined as PW1 and in his evidence, he sought for marking M.O.U. as a secondary evidence. However, an objection was raised by the learned counsel for the accused for marking alleged secondary evidence, interalia alleging, without proving the existence of the original, the question of marking secondary evidence does not arise. The learned Magistrate over ruled the objection and permitted the complainant to lead secondary evidence by producing the xerox copy of the M.O.U. subject to proof of existence of original. At this stage, this petition has been filed.

6. The learned senior counsel appearing for the petitioners accused submitted that, when an application was filed under Section 91 of Cr.P.C. seeking summoning the alleged M.O.U. from the accused No.1 the said application was rejected with an observation that; ‘when the accused do not have such document, question of directing the accused persons to produce the said documents does not arise and also on the ground that, the accused cannot be directed to produce the Memorandum of Understanding to prove the case of the complainant.’ This observation is also reiterated by the revisional Court in its order at paragraph 8 of the order.

7. The learned senior counsel submitted that, such observation was also not warranted. He further submitted that, when the existence of document itself is not proved by the complainant, question of marking of xerox copy as secondary evidence is per se illegal.

8. He relied on the provisions of Sections 63 and 65 of the Evidence Act and submitted that, Section 65 of the Evidence Act and submitted that, secondary evidence may be given of the existence, condition or contents of a document subject to, when the original is shown or appears to be in the possession or power of the person 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. The secondary evidence could be led in evidence. In this case, nothing shows as regard to existence or otherwise as required under Section 65 of the Evidence Act, still the learned Magistrate has permitted the production of Xerox copy of alleged original.

9. He submitted that, the existence of original is must. If the existence of the original itself is not proved, allowing of marking the secondary evidence would be contrary to Section 65 of the Evidence Act.

10. In support of his case, he relied on the judgment of the Apex Court reported in AIR 2007 SC 1721 in the mater of Smt. J. Yashoda –vs- Smt. K. Shoba Rani and submitted that, the Apex Court on considering the provisions of Sections 63 and 65 of the Evidence Act, has held that, the sec