Case Note & Summary
The dispute arose from a summary criminal case pending before the Judicial Magistrate (First Class), Parbhani under Section 138 of the Negotiable Instruments Act, 1881. The petitioner was the accused, facing a cheque dishonour complaint filed by the respondent complainant. The complainant alleged that after dishonour of a cheque, he issued a statutory demand notice to the petitioner, but the postal envelope was returned with the endorsement 'addressee refused to accept'. The original envelope was subsequently lost, and the complainant sought to prove its contents by leading secondary evidence. The complainant filed an application at Exh.49 before the trial court, supported by an affidavit averring the issuance of notice, refusal, and loss of the original envelope. He also examined the Post Master, who deposed that the transaction occurred in 2015 and his office did not maintain records beyond two years, hence no official record of the refusal was available. The trial court allowed the application, permitting secondary evidence of the envelope. The petitioner challenged that order before the High Court, contending that the respondent had not laid any foundation for secondary evidence and that the order was illegal. The respondent argued that the foundation was properly laid because he had averred the loss, examined the Post Master, and held a Xerox copy of the envelope along with postal acknowledgment. The High Court examined the application and the impugned order. It noted that the complainant had lost the original envelope and the postal department had destroyed records after two years, thereby making the primary evidence unavailable. The court held that these facts satisfied the requirements of Section 65(c) of the Indian Evidence Act, 1872, which permits secondary evidence when the original has been lost or destroyed. It found that the trial court had rightly allowed secondary evidence and committed no illegality. Accordingly, the High Court dismissed the criminal writ petition and discharged the rule. The final decision favoured the respondent complainant.
Headnote
A) Evidence - Secondary Evidence - Lost Original Envelope - Indian Evidence Act, 1872, Section 65(c) - In a cheque dishonour case, complainant sought to prove notice and refusal by secondary evidence of returned envelope, as original envelope was lost and postal record destroyed after two years - Court held foundation under Section 65(c) was established because original was lost and official record unavailable - Held that trial court rightly allowed secondary evidence and petition dismissed (Paras 7-9).
Issue of Consideration
Whether the trial court rightly allowed secondary evidence of the lost envelope with refusal endorsement under Section 65(c) of the Indian Evidence Act, 1872.
Final Decision
Petition dismissed; rule discharged. The High Court upheld the trial court's order allowing secondary evidence.
Law Points
- Secondary evidence admissible when original lost
- Section 65(c) Indian Evidence Act
- 1872
- Foundation for secondary evidence
- Notice service in Section 138 NI Act can be proved by secondary evidence
- Trial court discretion upheld
