B. Sudheendra Kumar, J.

The revision petitioner is the accused in S.T. No. 339 of 2009 on the files of the court of the Judicial Magistrate of First Class IV, Kollam.

2. The trial Court convicted the revision petitioner under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him thereunder to simple imprisonment for one month and a fine of Rs. 1,50,000/-. In the appeal, the conviction was confirmed and the sentence was modified and reduced to imprisonment till the rising of the Court and a fine of Rs. 1,50,000/-.

3. Heard.

4. The prosecution allegation is that the revision petitioner borrowed an amount of Rs. 1,50,000/- from the complainant and towards the discharge of the said liability, the revision petitioner executed Ext. P1 cheque in favour of the complainant. The complainant presented the said cheque for encashment. However, the same was dishonoured due to insufficiency of funds in the account of the revision petitioner. Statutory notice was issued on behalf of the complainant. The revision petitioner received the notice. However, the revision petitioner did not pay the cheque amount within the statutory period or thereafter.

5. Before the trial Court, PW1 was examined and Exts. P1 to P6 were marked for the complainant. No evidence was adduced on the side of the defence.

6. The learned counsel for the revision petitioner has argued that since Ext. P1 is the photo copy of the cheque, the same cannot be admitted as secondary evidence and in the said circumstances, the conviction and sentence cannot be sustained.

7. In Sreedevi Amma v. Jayalakshmi [1998 (1) KLT 197], a learned Judge of this Court held that secondary evidence is admissible only if the original is lost or is in the custody of the defendants, and if it is not explained as to what happened to the original, secondary evidence is not admissible. The Apex Court in Ram Suresh Singh v. Prabhat Singh [(2009) 6 SCC 681] held that photocopy of a document in the absence of the original is not admissible in evidence. The Apex Court in Siddiqui v. Ramalingam [2011 (1) KLT SN 107 (Case No. 151)] held that mere admission of a document in evidence does not amount to its proof.

8. In a case where the original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other cases provided for in Section 65 of the Evidence Act. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. In this case, Exts. P1 to P3, P5 and P6 are photocopies. No original was produced before the Court at any time. However, PW1 during the course of examination clarified that the originals of the documents were produced in the civil case instituted by him in respect of the same transaction.

9. Section 63 of the Evidence Act provides the definition of secondary evidence. Section 63 (1) of the Evidence Act provides that the certified copy given under the provisions of the Evidence Act includes secondary evidence. Section 63 (3) provides that copy made from or compared with the original, includes secondary evidence. In this case, the original documents were produced before the civil Court as per the evidence of PW1. Therefore, the certified copies are, no doubt, available. If certified copies are available, Section 65 (f) allows secondary evidence. It is evident from Section 65 of the Evidence Act that only certified copy and no other kind of secondary evidence is permissible where the original is a document referred to under clause (f) of Section 65 of the Evi