The admissibility of secondary evidence requires foundational proof, especially when original documents exist.

ORDER

1. Petitioner is before this Court under Article 227 of the Constitution of India read with Section 482 of Cr.PC with a prayer to set aside the order dated 29.12.2022 passed in C.C.No.343/2021 pending before the Court of Prl. Civil Judge & JMFC, Belthangady, D.K. District, wherein the prayer made by the petitioner to mark the Photostat copy of an unregistered agreement to sell dated 23.03.2021, was rejected.

2. Heard the learned Counsel for the petitioner.

3. Petitioner herein is being tried before the Trial Court in C.C.No.343/2021 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. During the course of cross-examination of PW-1, learned Counsel for the accused/petitioner herein had shown the Photostat copy of an unregistered agreement to sell dated 23.03.2021 and PW-1 had admitted his signature on the said document. The said document is an insufficiently stamped document. Learned Counsel for the accused had requested the Trial Court to permit him to mark the said document. However, learned Counsel for the complainant had opposed the same on the ground that it is a Photostat copy and also insufficiently stamped document. The Trial Court vide the order impugned rejected the prayer made by the accused to permit him to mark the Photostat copy of the document on the ground that it does not come within the purview of secondary evidence, and therefore, the same cannot be marked. Being aggrieved by the said order, the accused is before this Court.

4. Learned Counsel for the petitioner submits that since the respondent/complainant has admitted his signature in the document, the Trial Court ought to have permitted him to mark the same. He submits that since the signature in the document is admitted, there is no requirement for filing an application seeking permission of the court to adduce secondary evidence. He submits that even insufficiently stamped document can be marked in criminal proceedings and even if the complainant had raised an objection, the document could have been marked subject to objections which could have been considered at the final stage. In support of his arguments, he has placed reliance on the judgments of the Hon'ble Supreme Court in the case of BIPIN SHANTILAL PANCHAL VS STATE OF GUJARAT & ANOTHER - AIR 2001 SC 1158, and DHANPAT VS SHEO RAM (DECEASED) THROUGH LRS. & OTHERS - (2020)0 AIR (SC) 2666.

5. The document which is sought to be marked in the present case is an agreement for sale dated 23.03.2021 and undisputedly the same is an insufficiently stamped document. For the reason that the complainant had admitted his signature on the said document, the accused has made a prayer before the Trial Court to permit him to mark the Photostat copy of the document.

6. In almost identical circumstances, the Hon'ble Supreme Court in the case of H.SIDDIQUI (DEAD) BY LRS. VS A.RAMALINGAM - (2011)4 SCC 240 , wherein a prayer was made to permit the party to mark the document on the ground that the other side had admitted the signature on the Photostat copy of the document, the Hon'ble Supreme Court in paragraphs 12, 14 & 17 has observed as under:

"12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the