Secondary Evidence – Photocopy of Affidavit – If the applicant has the photocopy of the affidavit, which is necessary for just decision of case then opportunity to lead the secondary evidence should be given

Mr. Rajbir Sehrawat, J. (Oral) - Present petition has been filed challenging the Order dated 12.11.2018(Annexure P-5) passed by the Additional Sessions Judge, Amritsar, whereby upholding the Order dated 12.07.2018(Annexure P-3) passed by the Judicial Magistrate Ist Class, Ajnala, the application filed by the Complainant for leading secondary evidence qua the affidavit in dispute has been upheld and the revision filed by the present petitioner was dismissed.

2. The brief facts which has given rise to the present petition are that the Complainant purchased share in property from successors-in interest of Kartar Kaur. The land purchased by the Complainant had tube well there on, with electric connection in the name of said Kartar Kaur. The Complainant had purchased the land alongwith the tube well and the electric connection. However, when he confirmed the latest status regarding the electric connection, then it was found that the same was running in the name of petitioner No.1 Baldev Singh. Further allegation of the Complainant is that, after the death of Kartar Kaur, through impersonation by some other person as Kartar Kaur, the petitioner prepared a false affidavit and got the electricity connection transferred in his name; in connivance with his co-accused.

3. At the stage of pre-charge evidence, the clerk of Punjab State Power Corporation Ltd., Sub Divisional Ajnala was examined by the Complainant. This witness had brought the record before the Court. However, in the statement made before the Court, this witness stated that the original of the affidavit dated 01.02.1990, on the basis of which electric connection was transferred in the name of the present petitioner, was missing from the concerned file of the Corporation. However, this witness deposed that the connection was, in fact, transferred in the name of the present petitioner on the basis of the affidavit.

4. The above said facts necessitated the filing of application for leading secondary evidence by the Complainant qua the above said affidavit.

5. The Trial Court allowed the application. However, aggrieved against the Order passed by the Trial Court, the present petitioner preferred revision petition before the Additional Sessions Judge, Amritsar. However, the said revision petition was also dismissed vide impugned Order dated 12.11.2018(Annexure P-5). That is how; the present petition has been filed by the petitioner, challenging the orders passed by the Courts below.

6. Having heard the learned counsel for the petitioners, this Court finds that the Order passed by the Courts below, by no means, are in violation of the law. The statement of the CW-1, the official of the Punjab State Power Corporation Ltd, has duly established the fact qua the existence and use of the said affidavit. However, the plea taken by the witness is that the said affidavit is no more available on the file of the Corporation.

7. In view of this situation, if the Complainant had the photocopy of the said affidavit and he has filed application praying for permission to lead the same in secondary evidence to substantiate his case, then it can not be said that his prayer is in violation of any law. Rather the opportunity to lead the secondary evidence qua the affidavit has become necessary for just decision of the case. Although the observation made by the Trial Court, that the original affidavit is in possession of the petitioner, may not be substantiated at this stage, however, the fact remains that the official witness of the Corporation have admitted that the original of the said affidavit was submitted to the Corporation at the time of transfer of the electric connection. As a result, the fact whether the original of the said affidavit is found to be in possession of the petitioner or it is found to have been submitted to the Corporation, which has subsequently gone missing, is a moot point. In either situation, the Complainant is entitled to lead the secondary evidence of the same