(16.12.2021)

In this petition filed under Section 482 of the Code of Criminal Procedure,

1973, the legality, validity and propriety of the order dated 28.09.2021 (Annexure

P/4) has been questioned, whereby the application filed by the Additional Public

Prosecutor in Sessions Case No.176/2012 under Section 63 of the Indian Evidence

Act, 1872 (hereinafter referred to as “Act”) has been allowed by the learned Court

below and permitted to produce the photocopy of cheques and photocopy of a

complaint as secondary evidence.

2.

The prosecution case, in brief, as reflected from the charge sheet and the

impugned order is that an FIR dated 26.03.2012 was registered on the basis of a

complaint made by one Munni and Anarkali against the applicants and another co-

accused for offences punishable under Sections 420, 409, 468, 471 and 34 of the

Indian Penal Code. On completion of investigation, charge sheet was filed against

the applicants and another co-accused. One of the co-accused persons died in an

accident. Thereafter, charges were framed against the applicants which were

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denied by them and as such, they were put on trial. During the course of the trial,

an application was moved by the Additional Public Prosecutor under Section 63 of

the Act since the original copy of the complaint and the seized cheques were not

available on record. Thereafter, the learned Court also sent various letters directing

the authorities to produce the original copy of the said documents. However, it

was informed by the In-charge of the police station that the original copies of the

cheques are not available in the Bank. The present application was allowed and

the account statement showing withdrawal of the amount mentioned in the

cheque, photocopy of the complaint and the photocopies of cheques are admitted

in evidence as secondary evidence. The applicants filed reply to the application

filed by the Additional Public Prosecutor under Section 63 of the Act clearly

stating that the photocopies of the cheques of the Union Bank of India through

which amount was transferred were not seized by any police officer from any

person or institution. Further no such seizure memorandums have been annexed

alongwith the charge sheet. As such, it is clear from the charge sheet that the

aforesaid documents were in whose possession at the relevant point of time. It is

also not known as to whether the photocopy was done from the original copy of

the documents by mechanical process and the copies compared with such copies.

The prosecution, in its application, has also not stated that the documents as

mentioned above have been lost or destroyed and therefore, Section 65(c) of the

Act has no role to play in the instant case.

Learned counsel for the applicants submitted that in view of the aforesaid,

the existence of the original has not been proved. It is also not known as to who

possessed the original or the photocopies of the relevant documents. No seizure

memo with regard to photocopies finds place in the charge sheet. He further

submitted that the conditions enumerated in Section 63 of the Act were not

satisfied. Therefore, the learned trial Court could not invoke Section 65(c) of the

Act.

Whether any evidence can be treated as secondary evidence, it has to satisfy

the conditions laid down in Section 63 of the Act. For the purpose of

convenience, Section 63 of the Act is reproduced hereinbelow:

63. Secondary evidence.—Secondary evidence means and includes—

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(1) Certified copies given under the provisions hereinafter contained;

(2) Copies made from the original by mechanical processes which in

themselves insure the accuracy of the copy, and copies compared with such

copies;

(3) Copies made from or compared with the original;

(4) Counterparts of documents as against the parties who did not execute

them;

(5) Oral accounts of the contents of a document given by some person who

has himself seen it.

The instant case falls within sub-sections (2) and (3) of Section 63 of the

Act. Once the co