The court ruled that when original documents are unavailable with the complainant, he may present secondary evidence to support his claims, ensuring a fair trial.

ORDER :

1. In this petition, filed under Section 482 of Cr.P.C, complainant who is complainant before the trial Court has challenged the common order dated 17.10.2020, in C.C.No.8698/2018 on the file of XV ACMM, Bengaluru, rejecting application filed under Section 65(c) of Indian EVIDENCE ACT and application under Section 311 of Cr.P.C filed by him.

2. For the sake of convenience, the parties are referred to by their ranks before the trial Court.

3. In support of the petition, the complainant has contended that he has filed the complaint against the accused for the offences punishable under Section 138 of N.I Act. Accused had engaged the services of the complainant for various legal opinion, documents and also for litigation. He had informed the accused that his professional fees would be Rs.20 lakhs and accordingly, invoice dated 01.06.2017 was raised. It was accepted by the accused under his signature. Since the legal service was given on various dates, a collective bill was issued. Towards payment of the same, accused issued cheque dated 01.07.2017 for Rs.20 lakhs. However, when presented for realization, it was dishonoured for want of sufficient funds. Therefore, after issuing legal notice complaint came to be filed in C.C.No.8698/2018. After appearance, accused offered to settle the case for Rs.10 lakhs, which was not accepted by the complainant.

4. During the course of cross-examination of PW-1, accused counsel questioned him regarding the documents in respect of which the legal opinion was given. In this regard complainant filed application under Section 65(c) of the Indian EVIDENCE ACT , seeking permission of the Court to produce copies of the documents and application under Section 311 of Cr.P.C to recall PW-1. However, based on the objections filed by accused, the trial Court rejected both the applications, which is being challenged in the present petition. The trial Court has failed to appreciate the fact that after furnishing the legal opinion, the complainant is left with the Xerox copies and he cannot be expected to produce the original documents. Since the original documents are with the accused, complainant cannot produce the same and hence, the petition.

5. Learned counsel for accused submitted that all the documents sought to be produced by the complainant does not pertains to the accused and they are not relevant to the case on hand. In the absence of production of original records, the trial Court has rightly rejected the applications filed by the complainant and pray to reject this petition also.

6. Heard arguments and perused the record.

7. Perusal of the material placed on record makes it evident that complainant, who is a practicing advocate has filed a complaint against the accused for the offence punishable under Section 138 of N.I Act, alleging that for the legal advice given by him, the accused was due to pay a sum of Rs. 20 lakhs towards Professional fees and issued the subject cheque and on presentation, it came to be dishonoured. After issuing legal notice and on the failure of accused to pay the amount due under the cheque complaint is filed.

8. During the course of cross-examination of the complainant who is examined as PW-1, the accused has questioned him as to whether there are any documents to show that legal advice was given and the said fees cover which period, etc. In fact, the complainant has deposed that Rs.20 lakhs fees pertains to 2 criminal cases conducted by him and legal advice given. He has also deposed that he has given legal advice in respect of Sy.Nos.18/2 measuring 18