ORDER

The petitioner is before this Court calling in question order dated 21-04-2023 passed by the XVIII Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.12540 of 2020 allowing an application filed by the respondent/accused under Section 65 of the Indian Evidence Act, 1872 (‘Evidence Act’ for short).

2. Heard Sri S.H. Raghavendra, learned counsel appearing for the petitioner and Sri L.Srinivasa, learned counsel appearing for the respondent.

3. The facts in brief germane are as follows:-

The petitioner is the complainant and respondent is the accused. The two have a transaction and in furtherance of which the accused is said to have issued a cheque in favour of the complainant. The complainant when presents the cheque for realization, was dishonoured for want of sufficient funds. This leads the complainant to cause a legal notice upon the accused/ respondent and takes further proceedings by registering a complaint invoking Section 200 of the Cr.P.C. before the concerned Court. The learned Magistrate takes cognizance of the offence and issues summons to the accused. The issue in the lis, does not concern with the merit of the matter. What drives the petitioner/complainant to this Court is an order passed by the concerned Court on 21-04-2023 on the application filed by the accused under Section 65 of the Evidence Act. In the proceedings at the time when the evidence was on, the accused files an application before the concerned court under Section 65 of the Evidence Act to produce the loan agreement dated 9-10-2018 in a photo copy form – a notarized photo copy. The concerned Court, after considering the application averments and the objections, allows the application and directs production of photo copy of the loan agreement as sought by the accused. It is therefore, the petitioner/complainant is before this Court challenging the said order.

4. The learned counsel appearing for the petitioner/

complainant would contend that the accused had no case against the petitioner. Knowing full well that the original of the loan agreement was not in possession of the accused, the accused seeks to produce a photo copy of the loan agreement as secondary evidence. It is his submission that such secondary evidence cannot be taken into consideration, as, such document would be in complete violation of law, notwithstanding the fact that the document is notarized.

5. On the other hand, the learned counsel appearing for the respondent/accused would submit that the issue lies in the loan agreement. Therefore, the loan agreement is placed on record in the form of photo copy which is notarized. He submits that mere production of photo copy of the loan agreement by itself would not prove the case of the accused, as he has to prove the contents of the document. Therefore, no prejudice would caused to the petitioner, if the document is permitted to be marked as secondary evidence. He would seek dismissal of the petition.

6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

7. The afore-narrated facts are not in dispute. The transaction between the parties is a matter of record. While the trial was on, in a proceeding under Section 138 of the Negotiable Instruments Act, 1881, the respondent/accused files an application to produce a photo copy of the loan agreement under Section 65 of the Evidence Act. It was his contention in the application that the loan agreement is a photocopy, as the original is with the complainant. He seeks production of the said loan agreement before the Court for the purpose of marking of the document as secondary evidence. This is seriously objected to by the petitioner before the concerned Court. The concerned Court, by its order dated 21-04-2023, considers entire spectrum of facts that led the accused seeking to place on record secondary evidence and allows the same. The reason so rendered by the concerned Court to allow the application