Admissibility of photocopies as secondary evidence and the conditions for invoking Section 65(C) of the Evidence Act in a criminal proceeding.

S.K. Palo, J.

1. Ms. Premlata Lokhande, learned counsel for the applicant. None appears for the respondent.

2. This petition under Section 482 of Criminal Procedure Code has been preferred by the petitioner for invoking the extra ordinary jurisdiction of this Court to set aside the order dated 09/09/2014 passed by the Fourth ASJ, Jabalpur in Criminal Revision No.182/2014 and to uphold the order dated 26/03/2014 passed by JMFC, Jabalpur in Criminal Case No.10517/2011.

3. Brief facts just necessary for disposal of this petition are, the respondent filed a criminal complaint case under Section 138 of Negotiable Instruments Act, before the learned JMFC, Jabalpur. During the pendency of the criminal case, an application under Section 65(C) of the Indian Evidence Act has been filed by the complainant/respondent. The learned JMFC dismissed the petition. In the criminal revision, learned Fourth ASJ, Jabalpur allowed the same, setting aside the order dated 26/03/2014 directed the trial Court to record secondary evidence in relation to the cheque and other documents which has been lost by the complainant.

4. Aggrieved by this order, the applicant has preferred this petition on the ground that the respondent/complainant has filed the complaint on false grounds, on the basis of a forged cheque. The complainant has stated that the said cheque was lost on 14/04/2013, whereas the contents of the petitioner from the beginning was the cheques has been fabricated. There is no certified copy of the cheque, only photocopy of the same is made available. Therefore, no such relief could have been granted to the respondent.

5. It is vehemently argued that photocopies cannot be admitted as secondary evidence and there were manipulation in the cheque. Hence, the order dated 09-09-2014 passed by the ASJ is bad in the eyes of the law.

6. Reliance has been placed on the judgments passed in Gwalior Development Authority v. Dushyant Sharma and others reported as 2013(4) MPHT 339 and T. Vanamamalai v. T.D. Sundara Varadhan reported as Banking Cases 374.

7. The complainant/respondent filed application under Section 65(C) of the Indian Evidence Act along with photocopies of the cheque, the memo of M.P. Rajya Sarkari Bank, Branch Rampur, Jabalpur intimating the dishonour of the cheque along with copy of the complaint made to the police on 14/04/2013, whereby intimation was given to the police station Madanmahal regarding the loss of the cheque and the memo, etc. Copy of order dated 26/03/2014 passed by the learned JMFC shows that photocopy of the same could not be used for secondary evidence. Order-Sheet dated 12/10/2011 of the trial Court shows that the original documents were tallied with the photocopies and were returned to the complainant. Allegedly, the documents were lost on 14/04/2013. Therefore, the report was made at police station Rampur, Jabalpur.

8. The case referred by the counsel for the petitioner T. Vanamamalai (supra) is not attracted in the present case for it is with regard to the procedure to be followed in cases under the Negotiable Instruments Act, 1881, to affix date seal of the Court on the complaint as well as on copies filed, intended to be served upon the accused.

9. As regarding the other case, Gwalior Development Authority (supra), it is with regard to civil cases about admission of photocopies as secondary evidence where it has been held that photocopies of documents cannot be treated as secondary evidence because this cannot be compared with original documents. The present case is a criminal case. And the photocopies of the cheque and other documents were compared by the trial Court vide order sheet dated 12/10/2011. The requirement on 63(2) are:-

(1) Copies are made from the original by mechanical process.

(2) Copies are compared with original copies (the copy has been complied as per the entry made in the order-sheet dated 12/10/2011).

(3) The photocopies of the cheque and memorandum of the bank are made from the original cheque (as