A court must allow secondary evidence when original documents are lost and not attributable to the petitioner's neglect, pursuant to Section 65(c) of the Indian Evidence Act.

ORDER

The petitioner company, represented by its Director, is the complainant in C.C.No.3398 of 2017 pending on the files of the Judicial First Class Magistrate Court (Special Court for N.I Act Cases), Ernakulam. The complaint was filed alleging commission of the offence punishable under Section 138 of the Negotiable Instruments Act. The allegation in the complaint is that, Cheque No.000071 dated 20.05.2017 for Rs.2,59,150/- issued by the accused/ respondent towards discharge of a legally enforceable debt was returned unpaid with the remark 'account blocked' and despite issuance of demand notice, the accused failed to pay the amount.

2. Along with the complaint dated 10.08.2017, the petitioner produced the following documents;

i) cheque bearing No.000071 dated 20.05.2017, ii) dishonour memo dated 23.05.2017, iii) copy of lawyer notice dated 20.06.2017, iv) postal receipts dated 21.06.2017 and v) unclaimed notice dated 04.07.2017

3. The complaint was accepted on file and numbered as C.C.No.3398 of 2017. The case was listed for trial and taken up for evidence on 09.01.2025. While the petitioner, represented by its Director, was being examined and the relevant documents marked in evidence, it was noticed that only photocopies of the cheque and dishonour memo were available. The learned Magistrate therefore refused to admit those documents in evidence. Faced with such a situation, the petitioner filed Annexure-A6 affidavit dated 15.01.2025 stating that, in spite of best efforts the original cheque and dishonour memo could not be traced out and permission should therefore be granted to mark the copies of those documents. The Magistrate having refused to accept and act upon the affidavit, the petitioner filed Annexure-A7 application under Section 348 of BNSS with the prayer to recall the complainant for further chief examination. The learned Magistrate having returned that application stating that it is not in the proper form, Annexure-A8 application was filed under Section 65 (c) of the Indian Evidence Act for getting the true copies of the cheque and the dishonour memo marked as petitioner's exhibits. The court below having dismissed that application by Annexure-A9 order, this Crl.M.C is filed.

4. Learned counsel for the petitioner submitted that the originals of the cheque and the dishonour memo were produced along with the complaint, as evident from the list of documents and affidavit appended to the complaint. Moreover, the complaint was numbered after verification of the documents produced, which also indicates that the original of the cheque and dishonour memo were produced along with the complaint. As only photocopies are available in the court now, the originals being not traceable, the petitioner has no alternative than to get the photocopies of those documents marked. By dismissing the petition under Section 65 (c) of the Indian Evidence Act, petitioner is denied the opportunity to substantiate the allegations in the complaint.

5. It is contended that Section 65 (c) provides for adducing secondary evidence when the original document is destroyed or lost. According to the counsel, the originals of the cheque and dishonour memo having been lost irrecoverably for reasons not attributable to the petitioner, the court below is bound to permit the petitioner to produce and mark the photocopies of those documents. Support for the argument is sought to be drawn from Section 63 (2) of the Indian Evidence Act.

6. As notice to the respondent was returned unserved with the remark 'abolished', the petitioner was permitted to serve notice