Secondary evidence is permissible when original documents are lost, and the reasons for the loss, even if stemming from negligence, do not negate this permission.

O R D E R

Dated this the 7th day of March, 2023 The petitioner is the accused in ST 69/2016 on the Judicial First Class Magistrate Court-IV, Kochi. The case originated on a complaint filed by the 1st respondent against the petitioner alleging commission of offence under Section 138 of the Negotiable Instruments Act (the N.I Act for short). The challenge in this criminal M.C is against Annexure A1 order of the trial court, permitting the complainant to let in secondary evidence under Section 65 (c) of the Indian Evidence Act . The request in that regard was made on the premise that the originals of all documents, including the cheque, the dishonour memo, postal receipt and acknowledgment card were lost from the possession of the complainant.

2.Learned counsel for the petitioner submitted that Section 65 (c) of the Evidence Act cannot be pressed into service, since the documents were admittedly lost due to the negligence of the complainant. Further, the factual submission that the documents were lost during the course of shifting of its office is also incorrect, since there is no change in the office of the complainant even in the address shown in the cause title of the Crl.M.C.

3.Learned counsel for the 1st respondent submitted that the originals of documents were produced along with the complaint and was returned by the court after substituting the originals with copies. In this regard attention is drawn to the following paragraph in Annexure A2 order;

“The complaint was filed before the Honourable Judicial First Class Magistrate Court No.II at Kochi on 09.09.2014. Along with the complaint 7 documents were produced by the complaint including the original cheque for Rs.7,50,000/- (Rupees Seven Lakhs and fifty thousand only) dated 20.12.2013 bearing no.068250 drawn on IDBI Bank, Angamaly Branch and the memo issued from Union Bank of India, Service Branch, Ernakulam. But as per the direction of the court the original cheque, memo issued by Union Bank of India, Service Branch, Ernakulam dated 05.03.2014, postal receipt dated 19.03.2014 and the postal acknowledgment card dated 27.03.2014 were replaced by producing the true photostat copies of the same. The originals were verified with the copies and returned to the complainant.”

Referring to 65(c) of the Evidence Act, it is contended that, secondary evidence as to the existence, condition or content of a document can be accepted when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. It is submitted that the specific case put forth by the complainant is that the originals were lost from its custody after they were produced and returned by the court.

4. Inspite of the assertive argument of the learned counsel for the petitioner, I find no reason to interfere with the findings of the trial court. The fact that the originals of the documents were produced along with the complaint cannot be disputed in the light of the trial court's finding in that regard. As regards the reason for seeking to adduce secondary evidence, the complainant’s explanation has to be accepted, since the complainant does not stand to gain by holding back the original documents. With respect to the contention that the office of the complainant was never shifted, the explanation that the complainant’s office at Ernakulam was closed and the documents were lost during transit to the head office at Chennai to be acceptable.

For the aforementioned reasons, the criminal appeal is dismissed.