Secondary evidence of a lost cheque is admissible in a prosecution under Section 138 of the Negotiable Instruments Act.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 20^TH DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945 CRL.MC NO. 2913 OF 2018 AGAINST THE ORDER/JUDGMENT ST 1007/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOLLAM PETITIONER:

MARYKUTTY AGED 65 YEARS D/O MARIYAMMA, MUTHIRAVILA PADINJATTATHIL VEEDU, NEDUMPANA P.O. NEDUMPANA VILLAGE, KOLLAM DISTRICT BY ADVS.

SRI.K.V.ANIL KUMAR RADHIKA S.ANIL SWAPNA VIJAYAN(K/001165/2006)

RESPONDENTS:

1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM- 682 031

2 ROSAMMA JOHNSON W/O JOHNSON, THADATHIL VEEDU,PALAMUKKU, KANNANALLOOR P.O.KOLLAM DISTRICT, PIN-691 576 BY ADV SRI.M.L.SURESH KUMAR OTHER PRESENT:

SRI. M.C. ASHI (PP)

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

20.02.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

BECHU KURIAN THOMAS, J. -----------------------------------------

Crl.M.C. No. 2913 of 2018 ----------------------------------------

Dated this the 20th day of February, 2024 ORDER Petitioner challenges the order dated 22-09-2017, in Crl.M.P.No.1792/2016 S.T.No.1007/2014 on the files of the Judicial First Class Magistrate’s Court-II, Kollam. As per the impugned order, the petitioner's application for adducing oral evidence regarding a lost cheque was dismissed, stating that no prosecution under Section 138 can be made on the basis of a photocopy of the cheque.

2. In the decision in Chitaranjan v. Jayarajan 2005 KHC 132, a learned Single Judge of this Court had held that in the case of cheques, it would be improper to deny the complainant the opportunity to substantiate his grievance by adducing secondary evidence, which is permitted under Section 65 of the Evidence Act. Similarly, in a recent judgment of this Court in Crl.R.P. No.578/2023 another learned Single Judge had relied upon the aforesaid judgment in Chitaranjan’s case and held that if the circumstances enable the party to the litigation to adduce secondary evidence, the Court cannot refuse permission to adduce such secondary evidence. Whether the evidence so adduced is admissible or relevant is a question that will have to be decided after an appreciation of the relevant document.

3. In the instant case, the defacto complainant contends that the original cheque was lost from the possession of the son of the complainant and only a photocopy is available. The said photocopy was sought to be adduced as secondary evidence, which was declined by the learned Magistrate. Considering the nature of documents sought to be produced, I am of the view that the observation of the learned Magistrate that prosecution under 138 of N.I.Act cannot be made on the photocopy of the cheque is not legally tenable and is hence required to be interfered with.

4. Accordingly, I set aside the order dated 22-09-2017 in Crl.M.P.No.1792/2016 S.T.No.1007/2014 on the files of the Judicial First Class Magistrate’s Court-II, Kollam and permit the petitioner to adduce secondary evidence of the lost cheque, in accordance with law. The Crl.M.C is allowed as above.

BECHU KURIAN THOMAS JUDGE AJM APPENDIX OF CRL.MC 2913/2018 PETITIONER ANNEXURES ANNEXURE A A TRUE COPY OF THE COMPLAINT IN ST NO.1007/2014 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOLLAM ANNEXURE B A TUE COPY OF THE AFFIDAVIT AND PETITION IN CRL.M.P. NO.1792/2016 IN ST NO.1007/2014 ANNEXURE C A TRUE COPY OF ORDER DATED 22-09-

2017 IN CRL.M.P. NO.1792/2016 IN ST NO.1007/2014 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOLLAM TRUE COPY