The petitioner has called in question the order dated 24.03.2016 passed by the XV Addl. Chief Metropolitan Magistrate, Bengaluru, in C.C.NO.9562/2012 on the application filed under Section 65 of the Indian Evidence Act rejecting the said application which order was confirmed by the LXII Addl. City Civil and Sessions Judge, Bengaluru in Criminal Revision Petition No.244/2016 vide order dated 01.01.2018.

2. The brief factual matrix of the case that emanates from the records is that –

The respondent herein has lodged a private complaint under Section 200 of the Cr.P.C. for an offence under Section 138 of the Negotiable Instruments Act (for short, ‘NI Act’) alleging that, the petitioner has issued several cheques for repayment of the debt taken by him. The accused made appearance before the court and contested the said proceedings. During the course of the evidence, the accused has produced certain Xerox copies of the documents, originals of which are already marked as Exhibits P-1, P-2 and P-4. It is the contention taken-up by the accused that the complainant has been conducting a chit business and he has been in the habit of obtaining Blank Cheques and On Demand Promissory Notes from each and every successful bidder as security for the repayment of the remaining chit amount. In that process an On Demand Promissory Note and four cheques were taken by the complainant from the accused only as security for the smooth running of the chit business. He has also taken up a contention that the cheques and On Demand Promissory Note were only signed by the accused and the remaining portion of the said documents were blank. In fact, prior to handing over the said cheques and On Demand Promissory Note, the accused had retained photocopies of the said documents which are sought to be produced before the court in order to establish manipulation and also filling up of the excess amount in the said cheques by the complainant.

3. It is also the stand taken by the accused that the accused had made subscription to three chits held by complainant in a total sum of Rs.5,00,000/- and the accused had been regularly paying the subscription amount to the said chits. The accused submitted that the monthly subscription payable in respect of each chit was in a sum of Rs.20,000/- and the accused was a successful bidder in two chits, and has been paying the subscription amount regularly. Therefore, it is the contention of the accused that, the cheques said to have been dishonored were not issued in respect of any outstanding liability, but it is issued only towards security with regard to the smooth running of the chit transaction. Therefore in order to show that those cheques and On Demand Promissory Note were only taken as a security for the chit transaction and not with reference to any liability as such on the part of the accused, an application was moved under Section 65 of the Indian Evidence Act for getting those documents marked before the court in order to rebut the presumption raised in favour of the complainant that the said cheques were issued for the repayment of whole or any part of the debt, as contemplated under Section 139 of the Act. The said application was seriously contested by the other side by filing objections.

4. After hearing the parties, the court has passed an order rejecting the said application on the ground that, there is no question of leading any secondary evidence, when the primary evidence is very much available before the court by way of Exhibits P-1, P-2 and P-4. The Trial Court has also observed that the said documents sought to be produced are the Xerox copies of Exhibits P-1, P-2 and P-4 and they cannot be marked in the absence of laying any foundation with regard to the secondary evidence.

5. Aggrieved by the said order, in fact, the accused preferred a Revision Petition before the LX-II Addl. City Civil and Sessions Judge (CCH 63) in Criminal Revision Petition No.244/2016. The Revisional Court also concurred with th