The main legal point established is the conditions for admitting secondary evidence under section 65 of the Evidence Act, emphasizing the need to prove the existence and loss of the original document and the preparation of the photocopy by a mechanical process.

ORDER : – This petition under section 482 of the Code of Criminal Procedure has been preferred by the applicant against the order dated 19-3-2019 passed by Judicial Magistrate First Class, Gwalior in Case No. 15455/2014 whereby the application under section 65 of the Evidence Act filed by the applicant has been dismissed.

2. The facts leading to filing of present petition are that the applicant filed a private complaint under section 138 of Negotiable Instruments Act before the Court of Judicial Magistrate First Class, Gwalior against the respondent alleging that the respondent had taken the loan of Rs. 2,17,000/- from the applicant and handed over a cheque bearing No. 007165 amounting to Rs. 3,00,000/-. The applicant presented the said cheque in the concerned bank on 21-6-2014 which was returned back on 12-7-2014 as dishonoured due to insufficient balance. A notice dated 2-8-2014 was sent to the respondent by registered post which was duly received by the respondent.

3. During the pendency of the trial, the applicant moved an application under section 65 of the Evidence Act stating therein that when the applicant appeared before the trial Court, then he came to know that he lost the original registry receipt of legal notice and receiving receipt of the same and in spite of his best efforts, the same could not be traced out, hence he sought permission to file the photocopy of the receipts in the Court as secondary evidence. The trial Court vide impugned order dated 19-3-2019 dismissed the aforesaid application preferred by the applicant. Being aggrieved by the impugned order, the applicant has preferred this petition.

4. It was submitted by learned counsel for the applicant that the trial Court has committed illegality and jurisdictional error in dismissing the application filed by the applicant under section 65 of the Evidence Act. Initially, the complaint was registered on the basis of original registry receipt and receiving receipt of the legal notice but thereafter the said documents were misplaced and in spite of his best efforts, the same could not be traced. Therefore, the Court below should have taken the photocopy of the said documents on record as secondary evidence. Hence, the impugned order passed by the trial Court deserves to be set aside.

5. To the contrary, learned counsel for the respondent had submitted that no explanation for losing the original registry receipt and receiving receipt of the legal notice was given by the applicant, therefore, no interference in the impugned order is required.

6. I have considered rival contentions of the parties and perused the available record.

7. In the present case, looking to the controversy, following question emerges for consideration : –

1. Whether, the photocopy of any relevant document whose original copy is lost, can be admitted as a secondary evidence? If yes, then under what circumstances, such permission can be given :

8. Section 65(c) of the Indian Evidence Act reads as under : –

“(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;”

9. Section 63(2) of the Indian Evidence Act reads as under : –

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

10. This Court in the case of Ranchhod Lal vs. Bheru Lal, 2001 (II) MPWN 13 has held that the original diary maintained by the pleader is not traceable and it is lost. As such, the applicant is entitled to lead secondary evidence to prove relevant entries made in the photostat copy of the diary maintained by the pleader. The trial Court has committed illegality in rejecting the prayer of the applicant for permitting him to produce secondary evidence of the photostat copy of the entries.

11. Similarly, in the case of Dr. Harish Chand Pipariya vs. Mukesh Kumar Kushwaha, 200