ORDER :

Heard the learned counsel for the petitioner complainant. But the learned counsel for the respondent accused is not present. Therefore, it is taken that there are no arguments on the part of the respondent – accused in C.C.No.3202/2014.

2. This petition is filed by the petitioner – complainant challenging the order dated 5.3.2016 passed by the Trial Court dismissing the applications filed under Section 311 of Cr.P.C. and Section 63 of the Evidence Act in C.C.No.3202/2014.

3. The factual matrix of the petition is that the petitioner – complainant had initiated proceedings against the accused for the offence punishable under Section 138 of the NI Act in C.C.No.3202/2014. In the said C.C.No.3202/2014, the complainant petitioner filed an application under Section 311 Cr.P.C. and Section 63 of the Evidence Act to recall PW1 for the purpose of marking photocopy of the postal acknowledgement. It was contended by the complainant that he had already adduced his evidence by examining himself as PW.1 and got marked documents. When he produced the photocopy of the postal acknowledgement in order to show the service of the legal notice on the accused, the same had been refused to be marked in evidence since the original was not produced. He had contended before the court below that he has issued legal notice to the accused through RPAD which was duly acknowledged, but however, he lost the original of the postal receipt and acknowledgement in order to prove the receipt of legal notice by the accused. He had also filed a sworn affidavit in compliance of Section 63 of the Evidence Act stating that he had lost the original postal receipt and acknowledgment. Despite of this contention taken by the complainant by filing an application under Section 311 Cr.P.C. read with Section 63 of the Indian Evidence Act, the Trial Court has dismissed the said application, causing serious prejudice to the petitioner. Hence, the petitioner has preferred this criminal revision petition.

4. It is the contention of the learned counsel for the petitioner that though he had taken a stand in his application under Section 63 of the Indian Evidence Act as well as in the affidavit to the effect that he had lost the original postal receipt and hence he had produced the xerox copy of the receipt to prove the fact that the respondent has in fact received the legal notice dated 19.02.2013, the court below has erred in rejecting the application of the petitioner, which has caused serious prejudice to the petitioner.

Therefore, the learned counsel prays that this criminal revision petition be allowed and the order passed by the Trial Court rejecting the application filed by the complainant under Section 311 Cr.P.C. and Section 63 of the Indian Evidence Act, 1872 be set aside and consequently permit him to produce the said document in evidence.

5. As already stated, despite of an opportunity given to the learned counsel for the respondent accused, he has not come forward to address arguments. Therefore, it is taken that there are no arguments on the part of the respondent – accused in C.C.No.3202/2014.

6. On a careful consideration of the contentions advanced by the learned counsel for the petitioner – complainant as well as having regard to the material on record, it is gathered that the respondent accused is required to face trial for the offences under Section 138 of the NI Act. The petitioner complainant has initiated a case against the accused in order to prove the guilt of the accused where the accused issued a cheque for a sum of Rs.3,60,000/and the cheque when presented, was returned with an endorsement saying ‘account closed’. Subsequently, notice was issued by the complainant calling upon the accused to pay the cheque amount. Accordingly, the requirement under Section 138 of the NI Act has been complied with and proceedings has been initiated against the accused. But since the postal receipt and acknowledgements for having served notice the accused have been lost b