A party can lead secondary evidence to prove the existence and contents of a document if the original is not in their possession or control, as per Section 65 of the Indian Evidence Act.

JUDGMENT

Kanwaljit Singh Ahluwalia, J. - Instant petition has been preferred under Section 482 Cr.P.C., 1973 praying therein that the order dated 29.05.2018 passed by the Court of Special Metropolitan Magistrate (N.I. Act Cases), No.3, Jaipur Metropolitan Jaipur, whereby the application of the petitioner under Section 91 Cr.P.C., 1973 was dismissed, be set aside.

2. Briefly stated, the respondent/complainant had instituted a complaint under section 138 of the Negotiable Instruments Act alleging therein that the petitioner had issued a cheque amounting to Rs. 4,50,000/- and the said cheque, on presentation had bounced.

3. The learned counsel appearing for the petitioner has referred to the cross-examination of the complainant to contend that the complainant in the earlier part of the cross- examination admitted that an agreement was executed between the parties. The complainant has also admitted that if the Court directs, he can produce agreement/document in the Court.

4. It will be apposite to reproduce here following lines from the cross-examination of the complainant :-

5. On the basis of above admission made by the complainant in the cross-examination, the complainant filed an application under Section 91 Cr.P.C., 1973 praying before the trial Court that the complainant be directed to produce the agreement/document for effective cross-examination. The trial Court rejected the application relying upon subsequent answers given by the complainant in the cross-examination. In the later portion, the complainant has stated as under :-

6. At the conclusion of the cross-examination, entertaining the request made by ld. counsel appearing for the petitioner that the complainant be directed to produce agreement/document, the trial Court gave following findings :-

7. Counsel appearing for the petitioner has submitted that since in the earlier part of the cross-examination, the complainant admitted that he can produce agreement/document, if it is so directed by the Court, the trial Court should have allowed the application filed by the accused-petitioner under Section 91 Cr.P.C., 1973 The trial Court to satisfy then and there asked the complainant and the complainant bluntly refused and said in categoric terms that he has no agreement/document in his possession. Therefore, the trial Court under Section 91 Cr.P.C., 1973 cannot compel the complainant to produce agreement/document possession of which has been denied by the complainant especially in the last portion of the cross-examination.

8. section 65 of the Indian Evidence Act reads as under :-

"65. Cases in which secondary evidence relating to documents may be given .-Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:-

(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;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (Emphasis supplied)

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (Emphasis supplied).

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of section 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1[India] to be given in evidence 2; 1[India] to be given in evidence 2 ;"

(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined