Photo copies can be accepted as secondary evidence if the genuineness of the original document is established, and the conditions laid down in Section 65 of the Evidence Act are fulfilled.

The applicant has preferred the revision against the order dated 30.5.2009 passed by the IInd Additional Judge to the Court of Xth Additional Sessions Judge, Bhopal in Criminal Revision No.549/2008 whereby the order dated 25.11.2008 passed by the JMFC, Bhopal (Shri P.C. Gupta) in Criminal Case No.7/2006 was set aside and the application of the respondent under sections 63, 65 of the Indian Evidence Act was accepted.

2. The facts of the case in short are that, the complainant has lodged a criminal complaint against the respondents for offences punishable under Section 138 of the Negotiable Instruments Act. During the pendency of that complaint an application under Sections 63, 65 of the Evidence Act was submitted before the trial Court that some of the documents are in custody of the complainant and the office copies of such documents cannot be produced by the defendants because the documents are in possession of the liquidator in some other matter and therefore, they filed some photo copies of various letters, cheques etc. and prayed for their proof by the secondary evidence.

3. The learned JMFC after considering the application dismissed the application on the ground that much opportunity was given to the accused persons and therefore, a last opportunity of defence evidence was given by the trial Court. In criminal revision the learned Additional Sessions Judge allowed the criminal revision and also accepted the application submitted under Sections 63, 65 of the Evidence Act.

4. I have heard the learned counsel for the parties at length.

5. The learned counsel for the applicant has raised so many objections including the objection that it was a second application of similar nature which was barred under law. The provisions of Section 63 and 65 of the Evidence Act were read in the arguments and shown that photo copies cannot be accepted as secondary evidence. The reliance is placed upon the judgment passed by Hon'ble the Apex Court in the case of “J. Yashoda Vs. K. Shobha Rani” [(2007) 5 SCC 730] and one order of single Bench of this Court passed in the case of “Ram Singh Sahu Vs. Ram Dayal Gangaram Maheshwari” (2000 (3) MPLJ 142) is referred. It is also submitted that no such plea was supported by an affidavit. Annexure A/5 was not at all supported by any affidavit. Some of the letters which were written by the accused are their own documents and therefore, those cannot be proved by the secondary evidence.

6. On the other hand the learned counsel for the respondent has referred para 7 of the impugned order and the statement of the complainant in which he has accepted about the genuineness of such documents and therefore, it is prayed that the order passed by the revisionary Court may be maintained.

7. It is no where directed by any Court that photo copy cannot be proved as the secondary evidence. If the defination of Section 63 of the Evidence Act is perused then photo copy also falls in that category. The condition to accept the photo copy is that genuineness of the original document should be established and it is also to be established that the photo copy done with the original document was not at all tampered. In the case of J. Yoshada (supra) the Hon'ble Apex Court has laid that for adducing secondary evidence, it is necessary for the party to prove existence and execution of the original document. Also the conditions laid down in Section 65 of the Evidence Act must be fulfilled then secondary evidence can be admitted. It is no where directed by the Hon'ble Supreme Court that photo copies cannot be taken as a secondary evidence in any case. In the case of Ram Singh Sahu (supra) the learned single Bench of this Court refused the application of secondary evidence because no notice was given to the opposite party under Order 11 Rule 15 of C.P.C. The present matter is not a civil matter and therefore, there was no necessity to give a notice under Order 11 Rule 15 of C.P.C.

8. Looking to the evidence given by the complaina