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MADRAS HIGH COURT
M.GAGAN BOTHRA – Appellant
Versus
J.SATHISH KUMAR – Respondent
CRL RC/1166/2022
CRIMINAL REVISION - DISHONOUR OF CHEQUE - SECONDARY EVIDENCE - XEROX COPY OF CHEQUE - SEIZURE OF ORIGINAL CHEQUE BY POLICE - RETURN OF DOCUMENTS BY COURT ORDER - DISPUTE OVER RETURN OF ORIGINAL CHEQUE - TRIAL COURT DIRECTED TO RECEIVE XEROX COPY AS SECONDARY EVIDENCE AND DECIDE DISPUTE AFTER EVIDENCE
Fact of the Case:
The petitioner filed a complaint against the respondent for dishonour of a cheque. The original cheque was seized by the police in connection with another case. The petitioner filed an application before the trial court seeking permission to file a xerox copy of the cheque as secondary evidence. The trial court rejected the application.
Finding of the Court:
The High Court set aside the impugned order and directed the trial court to receive the xerox copy of the disputed cheque and other related documents as secondary evidence. The trial court was also directed to permit the accused to let in evidence to prove that the original cheque had been returned by the father of the petitioner.
Issues: Whether the trial court erred in rejecting the petitioner's application to file a xerox copy of the cheque as secondary evidence.
Ratio Decidendi: The High Court held that the trial court should have allowed the petitioner to file the xerox copy of the cheque as secondary evidence since the original cheque had been seized by the police and not returned to the petitioner.
Final Decision: The High Court allowed the criminal revision petition and directed the trial court to receive the xerox copy of the cheque as secondary evidence and decide the dispute after evidence.
Crl.R.C.No.1166 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.01.2023
CORAM
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
Crl.R.C.No.1166 of 2022
M.Gagan Bothra
...
Petitioner
/vs/
J.Sathish Kumar,
... Respondent
Prayer: Criminal Revision Petition is filed under Section 397 and 401 of
Cr.P.C., to set aside the judgment/order dated 27.06.2022 passed in
Crl.M.P.No.10596 of 2019 by the Learned Fast Track Court No.4,
Metropolitan Magistrate, George Town, Chennai.
For Petitioner ... Mr.M.Gagan Bothra (Party-in-person)
For Respondent
... Mr.L.Infant Dinesh
O R D E R
Challenging the impugned order passed in Crl.M.P.No.10596 of
2019 in C.C.No.1033 of 2017 on the file of the Learned Fast Track Court
No.4, Metropolitan Magistrate, George Town, Chennai, dated 27.06.2022,
the present Criminal Revision Petition has been filed.
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Crl.R.C.No.1166 of 2022
2.
The petitioner appeared party-in-person. The
complainant/petitioner filed a complaint against the respondent/accused for
dishonour of cheque bearing No.823622, dated 22.03.2017, for a sum of
Rs.35,00,000/-. He, while filing the complaint, filed the original cheque and
other documents. After taking sworn statement, all documents had been
returned to the complainant, to produce the same at the time of trial.
Thereafter, a criminal complaint has been registered against the petitioner and
his father in Crime No.213 of 2017 and they were arrested and the police
have seized 200 documents along with the original cheque. Hence, the
petitioner and his father filed an application in Crl.M.P.Nos.383 and 384 of
2018 in Crime No.213 of 2017, for a direction to return the seized
documents.
3. The trial Court,
vide order dated 15.02.2018 in
Crl.M.P.Nos.383 & 384 of 2018 elaborately discussed and ordered to return
the documents listed in the order seized by the police under the mahazar in
the above said crime number. In that list of documents, the disputed cheque
was also mentioned but the original cheque taken by the police in Crime
No.213 of 2017, has not been returned. Therefore, the petitioner filed an
application in Crl.M.P.No.10596 of 2019 before the trial Court seeking
permission to file the xerox copy of the cheque. The trial Court, by passing
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Crl.R.C.No.1166 of 2022
the impugned order, rejected the application without considering the genuine
reason. Hence, he seeks to set aside the impugned order and to permit him to
file xerox copy of the cheque as the secondary evidence.
4. The Learned Counsel appearing for the respondent objected to
allow the revision and further contended that, the petitioner's father gave a
letter to the respondent on 18.07.2017, in which, after settling the amount, all
the original documents given by the respondent were returned to him. Under
these circumstances, this petitioner falsely by using the xerox copy of the
cheque filed the complaint. Therefore, it cannot be permitted to file xerox
copy of the cheque to proceed the case. Hence, there is no reason to interfere
with the order passed by the trial Court and he seeks to dismiss the revision.
5. On perusal of records, the fact reveals that the petitioner filed
the complaint against the respondent/accused for the offence under Section
138 N.I Act, for dishonour of cheque bearing No.823622, dated 22.03.2017,
for a sum of Rs.35,00,000/-. The case has been taken on file in C.C.No.1033
of 2017. During the trial, the petitioner filed a petition in Crl.M.P.No.10596
of 2019 seeking permission of the Court to file the xerox copy of the disputed
cheque as the secondary evidence on the ground that the original cheque was
seized by the respondent police in connection with the case registered in
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Crl.R.C.No.1166 of 2022
Crime No.213 of 2017,
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