Secondary evidence of a document is admissible under the Indian Evidence Act if the original is lost, provided the party claiming loss substantiates this claim.

Headnote:(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Sections 438 and 442 - Indian Evidence Act, 1872 - Sections 63 and 65 - Admissibility of secondary evidence - The trial court dismissed a petition to admit a xerox copy of a cheque due to lack of evidence of its loss. The petitioner claimed the cheque was misplaced by his advocate, but failed to substantiate this. The court established that refusal to accept the xerox copy was erroneous, given the original cheque’s verification by the court and later loss. (Paras 1-25)

(B) Legal principles regarding secondary evidence - The court emphasized that secondary evidence is admissible if the original is lost, citing Sections 63 and 65 of the Indian Evidence Act, mandating that a party must prima facie prove the loss to allow secondary evidence, which was not done here. (Paras 14-19)

(C) The court also noted that the endorsement of the original cheque's return to the petitioner indicated that the original was indeed verified and subsequently lost. (Paras 20-22)

ORDER

1. This Criminal Revision Case has been filed, against the order dated, 15.04.2025, passed in Crl.MP.No.101 of 2025 in STC.No.476 of 2016, by the Judicial Magistrate I, Pudukottai.

2. The facts of the case of the Petitioner, in a nutshell, as set out in the affidavit filed in support of this Criminal Revision Case, led to filing of this Criminal Revision Case and necessary for disposal of the same, are as follows:-

a) The Respondent had borrowed a sum of Rs.5,50,000/- from the Petitioner on 01.02.2014, for which, the Respondent had given a cheque, bearing No.009790, dated, 28.05.2014, drawn on ICICI Bank, Virachilai Branch, Pudukottai, as a security. When the said cheque was presented for encashment on 29.05.2015, it was returned on 30.05.2014, with an endorsement “Funds Insufficient”. Hence, the Petitioner had sent a legal notice to the Respondent on 14.06.2014, demanding him to repay the said loan amount and the said notice was returned, as the Respondent refused to accept the same. Hence, the Petitioner had filed a Petition in STC.No.476 of 2016, under Sections 138 and 147 of the Negotiable Instruments Act, before the Judicial Magistrate I, Pudukottai, to direct the Respondent to repay the said loan amount and also to punish him.

b) When the case was taken for trial, the Petitioner had filed Crl.MP.No.101 of 2025 under Section 63(a) of the Indian Evidence Act, in STC.No.476 of 2016, to accept the xerox copy of the cheque in question, as a secondary evidence on the ground that the original cheque was lost, as his erstwhile Advocate had misplaced the same with the bundles. By the impugned order, dated 15.04.2025, the Trial Court had dismissed the said Petition, on the sole ground that there is no evidence to prove the averment of the Petitioner that the original cheque was lost by his erstwhile Advocate. As against the same, the Petitioner has filed this Criminal Revision Case.

3. In the counter affidavit filed by the Respondent, it is averred as follows:-

(a)The sworn statement of the Petitioner was recorded by the Trial Court on 15.07.2014. After lapse of 10 years, the Petitioner filed the Petition under Section 63(a) of the Indian Evidence Act before the Trial Court, to accept the xerox copy of the cheque in question, stating that the cheque was misplaced by his earlier counsel.

(b)As per Section 63 of the Indian Evidence Act, the Petitioner failed to examine the earlier counsel, who lost the original cheque in question and also to submit documents to substantiate his claim. Hence, the Trial Court had rightly dismissed the Petition on the ground that no documents were produced by the Petitioner to sustain the plea raised by him.

4. This court heard Mr.A.Balaji, the learned counsel for the Petitioner and Ms.S.Prabha for Mr.D.Ramesh Kumar, the learned counsel for the Respondent.

5. The learned counsel for the Petitioner has submitted that after filing of the complaint under Section 138 of the Negotiable Instruments Act and after production of the original cheque before the Trial Court, the Trial Court, after recording the sworn statement of the Petitioner on 15.07.2014 and after verifying the original cheque and after retaining the xerox copies of all the documents, had returned the original cheque to the Petitioner on the very same date and that the Petitioner had also made an endorsement in the said sworn statement to the said effect and that thereafter, the original cheque was lost, as his erstwhile Advocate had misplaced the same with the bundles and thereafter, it was not traceable.

6. The learned counsel for the Petitioner has further submitted that since the Petitioner had produced the original cheque at the time of filing the Petition in STC.No.476 of 2016 and subsequently, the Trial Court also discussed about the production of the original cheque at the time of sworn statement, testing the bona fide of the cheque and also an endorsement to that effect was made by the Trial Court, the Trial Court ought to have accepted t

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