ORDER:

Challenge in this C.R.P. at the instance of defendant is to the order dated 07.12.2023 in I.A.No.745/2023 in O.S.No.423/2013 where under the learned II Additional District Judge, Visakhapatnam allowed the petition filed under Section 65 of CPC R/w Section 151 of CPC by the plaintiff-bank to adduce secondary evidence by way of marking the plaint documents No.16 to 35 and documents No.1 to 9.

1. The factual matrix is thus:

(a) The plaintiff filed O.S.No.423/2013 against the defendant for recovery of a sum of Rs.12,82,258/- with subsequent interest at 12%

per annum on the ground that the defendant who worked as Clerk in plaintiff-bank committed some irregularities and manipulated the bank transactions and misappropriated the amounts. Parallely, the bank took up criminal proceedings against her in Cr.No.692/2010 on the file of III Town PS LNO, Visakhapatnam and also initiated departmental enquiry proceedings.

(b) While so, during trial in O.S.No.423/2013, the plaintiff filed I.A.No.745/2013 under Section 65 of the Indian Evidence Act seeking permission of the Court to adduce secondary evidence in respect of plaint documents No.1 to 9 and 16 to 35. It is submitted that plaint documents No.36 to 91 were already marked as Exs.A1 to A62 but however, plaint documents No.1 to 35 could not be marked as exhibits as they are photostat copies. The original documents No.1 to 9 were not available in the bank and they could not be traced. So far as documents No.16 to 35 are concerned, they were handed over to the police officials of III Town P.S. on 08.01.2011 under acknowledgement for the purpose of conducting investigation and they were not returned back. Plaintiff-bank filed a petition in I.A.No.3040/2017 for a direction to the III Town P.S. for production of the aforesaid documents. However, the Officers of said police station did not produce the documents and ultimately submitted that III Town P.S. was bifurcated in the year 2015 and concerned records may be available with III Town P.S. MVP Colony Zone but the officers of the said police station also did not produce the documents stating that they were not handed over to said police station by III Town P.S. Again summons were issued to III Town P.S. but the authorities intimated that the documents might be misplaced either in the III Town PS or MVP Colony Zone and the documents have not been filed in CC No.242/2012. Hence the plaintiff – bank filed IA No.745/2023 seeking permission of the court to adduce secondary evidence in respect of documents No.1 to 9 and 16 to 35.

2. The defendant filed the counter and opposed the petition on the main ground that in the corresponding criminal case No.242/2012, the bank officials i.e., the Branch Manager and Assistant General Manager were examined as PWs.2 and 6 respectively and they have deposed that they did not hand over any documents to the police and similarly the investigating officers were examined as PWs.5 and 10 and they too stated that they did not receive any documents from the bank and therefore the question of the plaintiff-bank handing over the documents to the officers of III Town P.S., Visakhapatnam for investigating purpose and their failing to return those documents does not arise and ultimately the bank failed to satisfy the condition laid down in Section- 65(c) of Indian Evidence Act to the effect that the original was lost and hence the petition shall be dismissed.

3. The trial Court having regard to the acknowledgment of the S.I of Police, III Town P.S found on the plaint document No.9 which is a covering letter for handing over the documents addressed by the bank to the S.I of Police, III Town PS, Visakhapatnam, held that in view of such acknowledgment given by S.I of Police, the deposition of PWs.2, 5, 6 and 10 in CC No.242/2012 cannot be based upon to reject the request of the plaintiff-bank. The trial Court was ultimately satisfied with the explanation of the bank in terms of Section 65(c) of Indian Evidence Act and allow