ORDER :

1. The petitioner has filed this writ petition (Cr) under Article 226 of the Constitution of India challenging the legality and propriety of the order dated 18.03.2019 passed in Criminal Revision No. 26/2019 in the case of Gurusharan Sahu vs Chumman Lal Sinha passed by learned Sessions Judge, Dhamtari as well as order passed by learned Chief Judicial Magistrate, First Class Dhamtri (C.G) rejecting the application on 26.10.2018 in Criminal Case No. 183/2014 by recording a finding that photocopy of cheque cannot be taken as secondary evidence.

2. The brief facts, as projected in the writ petition (criminal) are that the respondent took loan of Rs. 1,00,000/- from the petitioner on 04.07.2012 and in lieu of that he has given cheque No. 286705 drawn in HDFC Bank to the respondent on 25.07.2012. The petitioner submitted the said cheque on 31.07.2012 for clearance in the bank account No. 1947051791 maintained with the Central Bank of India, Branch Dhamtari. The cheque was dishonored on account of insufficient balance on the same day by the ban . Thereafter, the respondent requested him to give one month's time so that he may deposit the entire amount before the bank so the cheque can be honored. The petitioner again submitted the cheque on 18.09.2012 which was again dishonored on account of insufficient balance.

3. The petitioner sent a notice to the respondent as required under Section 138 of the Negotiable Instruments Act, 1881 (herein after referred to as 'the N.I. Act') which was neither replied nor payment was made to the petitioner. Thereafter, he filed a complaint under Section 138 of the N.I. Act before the learned Chief Judicial Magistrate on 05.11.2012. Before registration, as required under Section 200 of the Cr.P.C., the petitioner exhibited the documents namely the cheque, cheque forwarding memo and intimation by the bank regarding dishonored of the cheque. Learned trial Court taking cognizance of the complaint issued summons to respondent who appeared before the learned Chief Judicial Magistrate, Dhamtari.

4. During trial of the case, when evidence was being recorded, the original cheque and other relevant documents were lost. The petitioner filed an application on 14.08.2012 for permitting him to submit secondary evidence as provided under Section 65 of the Indian Evidence Act, 1872, mainly contending that he has already submitted photocopy of the cheque, return memo issued by the Central Bank, Branch – Dhamtari, memorandum given by the H.D.F.C. Bank with regard to dishonored of the cheque along with the complaint, but the original documents have been misplaced, despite sincere efforts being made by him, the original document is not traceable, therefore, he prayed that photocopy of said documents may be taken on record as secondary evidence.

5. The application was rejected by the learned trial Court on 26.10.2018 by recording the finding that photocopy cannot be termed as secondary evidence. The learned trial Court has also recorded the finding that petitioner has not followed the procedure as provided under Section 65 of the Indian Evidence Act for recording of secondary evidence as it is necessary that there must be sufficient materials on record which shows that despite due diligence original documents could not be traced out. Thereafter, he filed the criminal revision No. 26/2019 before Learned Sessions Judge Dhamtari. Learned Sessions Judge vide its order dated 18.03.2019 has dismissed the said criminal revision. Both the orders have been assailed by the petitioner under Article 226 of the Constitution of India in writ petition (criminal) before this Court. During course of hearing of writ petition , two issues have been raised by the parties and they are as under :-

(i) Whether, writ petition (criminal ) assailing legality and propriety of the order passed by the Revisional Court is maintainable?

(ii) Whether, the photocopy of the document can be taken as secondary evidence as provided under Section 65 of the E