Photocopies can be admitted as secondary evidence when the original document is lost, provided they are relevant and material to the case.

ORDER :

Mr. Kuldeep Mathur, J. - By way of filing the present criminal misc. petition, the petitioner has prayed for following reliefs-:

"It is, therefore, most humbly and respectfully prayed on behalf of petitioner that this criminal misc. petition may kindly be allowed and order dated 21.01.2021 passed by learned Special Judicial Magistrate (N.I. Act Cases) No.2, Udaipur in complaint case No.7666/2014; Kulbir Singh Chhabra v. Vinay Dagliya, may kindly be quashed and set aside and consequent thereto, the application filed by the petitioner under Section 65 of the Evidence Act may kindly be accepted. Any other appropriate order or direction which may be deemed just and proper in the facts and circumstances of the case may be passed in favour of the petitioner."

2. Succinctly stated, facts of the present case are that the respondent No.2 had issued two cheques having No.000051 and No.000052 for the repayment of the loan of Rs. 20, 00, 000/- to the petitioner which was returned from the bank on 12.08.2009 with the endorsement- 'funds insufficient'. In pursuance of the same the petitioner served a mandatory notice dated 05.09.2009 through his counsel and received the acknowledgement on 09.09.2019. He thereafter, filed a complaint under Section 138 of the N.I. Act and the learned trial court while taking cognizance of the matter, proceeded with the trial.

3. During the course of the trial, the petitioner submitted an application under Section 65 of the Indian Evidence Act before the learned Special Judicial Magistrate (N.I. Act Cases) Court No.2, Udaipur, stating therein that the retained original copy of the notice sent by the petitioner under the signatures of advocate to the respondent No.2 as per the provisions of the N.I. Act, through registered post and the acknowledgement due, had been misplaced/lost by the advocate of the petitioner and thus implored the Court to consider the photocopy of the legal notice sent by his advocate dated 01.09.2009 as secondary evidence of the original. However, the same has been rejected by the Special Judicial Magistrate (N.I. Act Cases) Court No.2, Udaipur vide impugned order dated 21.01.2021.

4. Learned counsel for the petitioner submitted that the original notice dated 05.09.2009, had been sent to the respondent No.2 and the acknowledgement of the same had been received by the petitioner's counsel on 09.09.2019 under the seal of the concerned post office. Learned counsel submitted that normally, a second copy of the legal notice is not kept as the original has been sent to the opposite party. Learned counsel further submitted that in the present case, the matter in issue is pending since 2009 and since a photocopy of the original notice is available, the same is required to be considered as secondary evidence of the original. Reliance was placed on the judgment of Pappu Singh @ Laxmansingh v. The State of Rajasthan reported in 2002 (1) Cri.LR (Raj) 566 in which even a photocopy of carbon copy has been considered as secondary evidence of the original.

5. Per Contra, Learned Public Prosecutor has opposed the prayer stating that the provision 65 of the Evidence Act is amply clear and the photocopy from no stretch of imagination can be considered at par with the original.

6. Heard.

7. The section 63 and 65 of the Evidence Act reads as under:-

"63. Secondary evidence

Secondary evidence means and includes -

(1) certified copies given under the provisions hereinafter contained;

(2) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;

(3) copies made from or compared with the original;

(4) counterparts of documents as against the parties who did not execute them;

(5) oral accounts of the contents of a document given by some person who has himself seen it.

Section 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