Case Note & Summary
The appellant, Maharashtra State Seeds Corporation Limited, filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondents for dishonour of a cheque for Rs. 4,91,445/- issued towards payment of dues. The cheque was dishonoured due to insufficiency of funds. After statutory notice, the respondents failed to pay. The trial court acquitted the respondents on the ground that the complainant failed to prove the case as the original cheque and bank memo were not produced. The complainant had filed an application to lead secondary evidence, which was rejected by the trial court. The High Court found that the trial court erred in rejecting the application without proper inquiry. The court noted that the complainant had explained that the original documents were lost and had filed an affidavit in support. The High Court held that the trial court should have allowed the secondary evidence and then proceeded to decide the case on merits. The acquittal was set aside and the matter was remanded to the trial court for fresh trial, with a direction to permit the complainant to lead secondary evidence. The court emphasized that the power to allow secondary evidence is discretionary but must be exercised judiciously, and the trial court's approach was too technical.
Headnote
A) Criminal Law - Dishonour of Cheque - Section 138 Negotiable Instruments Act, 1881 - Secondary Evidence - The complainant sought to lead secondary evidence of the cheque and bank memo after the originals were lost. The trial court rejected the application and acquitted the accused. The High Court held that the trial court erred in rejecting the application without proper inquiry, as the complainant had shown sufficient cause for loss of originals. The acquittal was set aside and the case remanded for fresh trial. (Paras 1-10) B) Evidence Act - Secondary Evidence - Section 65 Indian Evidence Act, 1872 - When original document is lost or destroyed, secondary evidence is admissible. The court must be satisfied of the existence and loss of the original. In this case, the complainant's application was supported by an affidavit and the trial court's rejection was premature. (Paras 5-8)
Issue of Consideration
Whether the trial court erred in rejecting the complainant's application to lead secondary evidence of the cheque and dishonour memo, and whether the acquittal of the accused under Section 138 of the Negotiable Instruments Act was proper.
Final Decision
The appeal is allowed. The judgment and order of acquittal dated 22nd December 2008 is set aside. The case is remanded to the trial court for fresh trial. The trial court is directed to permit the complainant to lead secondary evidence and decide the case afresh in accordance with law. The parties are directed to appear before the trial court on 6th August 2012.
Law Points
- Secondary evidence permissible when original document lost or destroyed
- Section 65 Indian Evidence Act
- 1872
- Section 138 Negotiable Instruments Act
- 1881
- Dishonour of cheque
- insufficiency of funds
- notice of demand
- acquittal reversed
- remand for fresh trial
