ORDER

1. In this petition filed under section 482 of the Code of Criminal Procedure, 1973, the legality, validity and propriety of the order dated 28.9.2021 (Annexure P/4) has been questioned, whereby the application filed by the Additional Public Prosecutor in Sessions Case No.176/2012 under section 63 of the Indian Evidence Act, 1872 (hereinafter referred to as “Act”) has been allowed by the learned Court below and permitted to produce the photocopy of cheques and photocopy of a complaint as secondary evidence.

2. The prosecution case, in brief, as reflected from the charge sheet and the impugned order is that an FIR dated 26.3.2012 was registered on the basis of a complaint made by one Munni and Anarkali against the applicants and another coaccused for offences punishable under sections 420, 409, 468, 471 and 34 of the Indian Penal Code. On completion of investigation, charge sheet was filed against the applicants and another co-accused. One of the co-accused persons died in an accident. Thereafter, charges were framed against the applicants which were denied by them and as such, they were put on trial. During the course of the trial, an application was moved by the Additional Public Prosecutor under section 63 of the Act since the original copy of the complaint and the seized cheques were not available on record. Thereafter, the learned Court also sent various letters directing the authorities to produce the original copy of the said documents. However, it was informed by the In-charge of the police station that the original copies of the cheques are not available in the Bank. The present application was allowed and the account statement showing withdrawal of the amount mentioned in the cheque, photocopy of the complaint and the photocopies of cheques are admitted in evidence as secondary evidence. The applicants filed reply to the application filed by the Additional Public Prosecutor under section 63 of the Act clearly stating that the photocopies of the cheques of the Union Bank of India through which amount was transferred were not seized by any police officer from any person or institution. Further no such seizure memorandums have been annexed alongwith the charge sheet. As such, it is clear from the charge sheet that the aforesaid documents were in whose possession at the relevant point of time. It is also not known as to whether the photocopy was done from the original copy of the documents by mechanical process and the copies compared with such copies. The prosecution, in its application, has also not stated that the documents as mentioned above have been lost or destroyed and therefore, section 65(c) of the Act has no role to play in the instant case.

3. Learned counsel for the applicants submitted that in view of the aforesaid, the existence of the original has not been proved. It is also not known as to who possessed the original or the photocopies of the relevant documents. No seizure memo with regard to photocopies finds place in the charge sheet. He further submitted that the conditions enumerated in section 63 of the Act were not satisfied. Therefore, the learned trial Court could not invoke section 65(c) of the Act.

4. Whether any evidence can be treated as secondary evidence, it has to satisfy the conditions laid down in section 63 of the Act. For the purpose of convenience, section 63 of the Act is reproduced hereinbelow :

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 insure 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.

5. The instant case falls within sub-sections (2) and (3) of section 63 of the Ac