Secondary evidence of a document in the possession of the party against whom it is sought to be used can only be given if a notice to produce the original is served on that party under Section 66 of the Evidence Act.

( 1 ) THE petitioner has been convicted of two offences under Section 406, Penal. Code under two separate counts. The "acts charged against him are that he committed criminal breach of trust in respect of 3 tolas and 5 annas of gold on 5-2-1951 and that similarly he committed the same offence In respect of a further quantity of 26 tolas and 9 annas of gold on 2-3-1951. The learned Magistrate has accepted the prosecution case and sentenced the petitioner to rigorous imprisonment for 4 months and 2 months respectively -- the sentences to run concurrently.

( 2 ) THE proceedings were commenced on the complaint of one Rashbehari Ray who alleged that he was a goldsmith, carrying on business at Cuttack and that he used to get the articles of his trade manufactured by workmen in Calcutta of whom the petitioner was one. The petitioner is also related to the complainant, being his nephew. The complainant's case further was that he had entrusted 29 tolas 14 annas and 3 pies of gold on 2-3-1951, and that the ornaments manufactured with that gold were due to be delivered in about a fortnight's time. When, however, the complainant demanded delivery of the ornaments he was put off from time to time and ultimately, on 28-3-1951, the petitioner denied having received any gold from the complainant at any time at all. This story was slightly varied in the course of the evidence when the petitioner stated that 29 bharies 14 annas and 3 pies of gold had not been entrusted all at the same time but that out of the total quantity, 3 tolas and 5 annas had been entrusted on an earlier occasion, namely, on 5-2-1951.

( 3 ) IN support of his case the petitioner (sic) relied upon a receipt alleged to have been granted by the petitioner at the time the gold had been delivered to him. There was some oral evidence as well, particularly, of a brother-in-law of the complainant who carries on the profession of a Dentist. The learned Magistrate relied principally upon the receipt which is Ex. 1 in the case and which was alleged by the prosecution to bear the signature of the petitioner.

( 4 ) IT was contended on behalf of the petitioner that the learned Magistrate had erred in law in relying upon Ex. 1 at all, inasmuch as it was not admissible in evidence. In order to appreciate this argument of the petitioner, it is necessary to remember that Ex. 1 is merely a carbon copy of the original receipt which is said to have been written out by the complainant himself but signed by the petitioner. It was contended that on the prosecution's own case, Ex. 1 was a copy and it could not be admitted in evidence unless the rules regarding the user of the secondary evidence were strictly complied with. In our opinion this contention is well-founded.

( 5 ) AS I have already slated, what was sought to be proved out of Ex. 1 was the signature which the petitioner was alleged to have affixed to it. It is, however, not the original signature but a copy appearing on a carbon copy. This carbon copy of the signature may be a piece of secondary evidence within the meaning of Section 63 (2), Evidence Act, being a copy made by a mechanical process which ensures its correctness, but simply because it is secondary evidence of a proper form, it does not follow that the prosecution was entitled to adduce it in evidence all at once. According to the prosecution, the original was in the possession of the petitioner and the case, therefore, came under Section 65 (8), Evidence Act which speaks of documents in the possession of the party against whom they are sought to be used. But in order that secondary evidence of such documents may be given, it is essential that the procedure laid down in Section 66 of the Act should be strictly complied with. The procedure there prescribed is that the party desiring to make use of secondary evidence must, in the first instance, serve a notice upon the party in whose possession the original may be, requiring him to produce the original a