The main legal point established in the judgment is that permission to lead secondary evidence under Section 65 of the Indian Evidence Act can only be granted if it is shown that the document is in possession of a person out of reach of the court's process.

R.S. Garg, J.

1. This order shall also dispose of Civil Revision No. 1628/2000 (Bank of Baroda Vs. Shyamlal G. Ashwani).

2. The applicant defendant by this petition seeks to challenge the correctness, validity and propriety of the order dated 27-3-2000 passed in Civil Suit No. 14-B/1999 whereunder the plaintiff's application under Section 65 of Indian Evidence Act to lead the secondary evidence, has been allowed.

3. The facts necessary for disposal of the revision are that the plaintiff/ non-applicant filed a suit before the Trial Court seeking decree for Rs. 67,500/-with interest and costs against the applicant-Bank, inter alia, pleading that on a forged cheque/withdrawal form, the plaintiff's account was debited and as the act of applicant-Bank was of negligence, was covered with fraud, the plaintiff is entitled to recover the money. The defendant in its written statement contended that in the regular course of business, the cheque was cleared and that they are not answerable to the claim made by the plaintiffs.

4. From the records, it appears that on a complaint made by the plaintiff, the investigation was conducted by the police who after finding a foul play, seized the cheque/cheques from the custody of the Bank and filed challan before the competent Court.

5. During the course of Trial, the plaintiffs made an application under Section 65 of the Indian Evidence Act inter alia submitting that the cheque has not been submitted as a document alongwith the challan in Criminal Case No. 202/1999 pending in the Court of Judicial Magistrate, First Class, Raipur and as the plaintiffs are possessed of a photocopy of the said cheque/ withdrawal form, they be permitted to lead secondary evidence. The application was contested by the defendant-Bank on many fold foundations. One of the grounds was that the cheque was seized by the police and if the said cheque has not been filed by the police alongwith the challan, then the cheque must be available in the case diary.

6. The learned Trial Court after hearing the parties, allowed the application submitted by the plaintiffs. Being aggrieved by the said order, the defendant-Bank has filed this revision petition.

7. Shri Satish Agrawal, learned counsel for the applicant-Bank contends that unless the requirement of Section 66 of Indian Evidence Act is fulfilled and the pre-conditions under Section 65 of the Evidence Act arc not in existence, an order permitting to lead secondary evidence cannot be granted.

8. On the other hand, Shri Alok Aradhe, learned counsel for the non-applicants/plaintiff's contend that the cheque is not within the reach of the plaintiffs and as the cheque/cheques in original have not been filed with the challan in the above referred Criminal Case No. 202/1999, the Court was absolutely justified in granting permission to the plaintiffs.

9. I have heard the parties.

10. Section 65 of the Indian Evidence Act, as in material for disposal of this petition reads as under:--

"65. Secondary evidence may be given of the existence, conditions, or contents of a document in the following case:--

(a) 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."

11. Section 66 of the Indian Evidence Act rules that secondary evidence of the contents of the documents referred to in Section 65, clause (a), shall not be given, unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his attorney or pleader, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case. Certain proviso have also been appended to Section