Point of Law: Section 63 of Evidence Act defines secondary evidence with certain illustrations.

ORDER :

1. The present Misc. Petition has been preferred under Section 482 Cr.P.C. by the petitioner against the order dated 04.03.2021 passed by the Special Judge, SC/ST (Prevention of Atrocities) Cases, Bhilwara in Criminal Revision No. 101/2020 (88/2020) whereby revision petition filed by the petitioner was dismissed against the order dated 29.08.2019 passed by the Additional Chief Judicial Magistrate No. 2, Bhilwara in Criminal Case No. 833/2015, whereby an application under Section 65 of the Evidence Act filed by the respondent No. 2 was allowed.

2. Learned counsel for the petitioner would submitted that in criminal case respondent No. 2 without filing original document has filed an application under Section 65 of the Evidence Act for taking the same on record as secondary evidence to prove execution of sale agreement between accused and respondent No. 2, which was allowed by the learned trial Court without following the process as prescribed under Section 65 of the Evidence Act. He would further submitted that no agreement was ever executed between the petitioner and the respondent No. 2 but a photostat copy of false and fabricated document, filed by respondent No. 2 was allowed to be admitted and exhibited as evidence by the trial Court. He would further submitted that if any of the original document is not available or have lost or destroyed then, under the law party may be permitted to lead secondary evidence but before admitting any document, the conditions as prescribed under the Act have to be fulfilled but in the present case, learned trial Court has failed to consider the conditions as prescribed before admission of secondary evidence. He relied upon the judgment delivered in J. Yashoa vs. K. Shoba Rani, Manu/SCX/7314/2007 : 2007 (5) SCC 630.

3. Aforesaid contentions were opposed by learned Public Prosecutor for State and learned counsel for complainantrespondent. Learned counsel for complainant-respondent would submitted that the document has already been exhibited and admitted in evidence before by the trial Court thus, the petition has already rendered infructuous. He would further submitted that mere exhibition of document does not give any right to file the present petition. He would further submitted that learned trial Court has supplemented the order with valid and cogent reasons and there are no grounds for interference by Hon’ble Court.

4. Heard learned counsel for petitioner, learned Public Prosecutor for State and learned counsel for respondent No. 2. Perused the material available on record.

5. The fact of the matter is that an FIR No. 340/2014 was registered at the Police Station Kotwali, District Bhilwara at the instance of respondent No. 2, wherein after investigation, charge sheet under Sections 452-323/34 of the IPC and 406-420 of IPC was filed against present petitioner and Smt. Vahida Khanam. Thereafter charges under Section 452/34, 323/34, 406 in alternative 420 IPC against present petitioner were framed. Few witnesses were examined by the prosecution. A perusal of the record further indicated that respondent No. 2 Smt. Madhubala was examined before learned trial Court as PW-4 and her examination in chief was recorded, but nothing to suggest that evidence of PW-4 was completed. A case status report as downloaded from the E-Court Portal shows that on 08.09.2022, the matter was fixed for prosecution evidence and thereafter it was listed for arguments on applications on next date of hearing i.e. 27.09.2022, which is still at the same stage. The allegation in the charge sheet are that present petitioner, who was owner of Vehicle Mahendra Jeep bearing registration No. RJ-06-C-7840, purchased on finance, allegedly sold this vehicle to respondent No. 2 for a consideration of Rs. 3 lacs. It was further averred that said amount was received in cash by present petitioner but for execution of documents and also handover the possession, some time was sought by petitioner, which was allowed by respondent No. 2.