ORDER:

The present Criminal Petition is filed to quash the order dated

03.12.2018 in Crl.M.P.No.895 of 2018 in C.C.No.544 of 2017 on the file of the Special Magistrate, Hindupur.

2. On perusal of the order, it appears that the accused has executed an agreement of sale in favour of the 1st respondent herein- complainant. But for the allegations mentioned in the report lodged to the police, on investigation, the police have laid charge before the jurisdictional Magistrate which is registered as C.C.No.544 of 2017.

3. Be that as it may, the 1st respondent-complainant has filed an application under Section 65 of the Indian Evidence Act praying the Court to permit the complainant to receive and mark the xerox copy of the settlement of agreement on his behalf as secondary evidence. It is asserted by the complainant in the Criminal Miscellaneous Petition that on the advice of the elders, the accused had executed a settlement of agreement in favour of the complainant and the original agreement was in the custody of the accused and he is in possession of the xerox copy of the said settlement of the agreement and despite the notice was given under Section 66 of the Evidence Act, the accused has not produced produced the original settlement agreement. Hence, the impugned Criminal Miscellaneous Petition is filed to mark the document as secondary evidence, as the settlement of agreement document is necessary document to prove his case, otherwise, he will put to irreparable loss and injury.

4. The accused, who is the respondent in the Criminal Miscellaneous Petition, filed counter denying all the allegations made in the petition, however he admitted the issuance of the notice under Section 66 of the Evidence Act and he has given reply to the said notice denying the possession of the original settlement agreement and further contended that in order to invoke the provisions of Section 66 of the Evidence Act, the complainant, at the first instance, has to satisfy the Court the requirement of Sections 62, 64 and 65 of the Indian Evidence Act before requesting the Court to receive the xerox copy of the document as secondary evidence and as seen from the conduct of the complainant, the complainant failed to prove the due execution of the settlement agreement and since the complainant failed to establish the very due execution of the document in original and requesting the Court to receive the xerox copy as additional evidence does not arise. Therefore, the accused-the petitioner herein prayed to dismiss the said Criminal Miscellaneous Petition filed to mark the xerox copy of the original document as secondary evidence.

5. Upon considering the arguments of the both sides and the provisions of Sections 65 and 66 of the Indian Evidence Act, the trial Court has allowed the Criminal Miscellaneous Petition observing that the complainant followed the procedure laid under Section 66 of the Indian Evidence Act and the accused failed to produce the original settlement executed by him in favour of the complainant, in spite of receiving notice also, the accused has not produced the said document before the Court and therefore, it can be safely concluded that the complainant can follow the procedure under Sections 65 and 66 of the Indian Evidence Act to adduce secondary evidence upon costs.

6. Feeling aggrieved by the order dated 03.12.2018 passed by the trial Court in Crl.M.P.No.895 of 2018 in C.C.No.544 of 2017, the present Criminal Petition is filed to quash the same on the ground that the order of the learned Magistrate is illegal and unsustainable and there is no whisper as to the execution of the settlement agreement and nowhere stated either in the complaint or in the notice about the execution of the said settlement of agreement. Therefore, prayed to set aside the order impugned in the present Criminal Petition.

7. A secondary evidence can be given under Section 65 of the Indian Evidence Act, when the original is shown or appears to be in the possession or