Case Note & Summary
The petitioner, Sri R. Lakshminarasimha, filed a criminal petition under Section 482 of the Code of Criminal Procedure, 1973, challenging the orders dated 24.03.2016 passed by the XV Additional Chief Metropolitan Magistrate, Bengaluru, in C.C. No. 9562/2012, and the order dated 01.01.2018 passed by the LXII Additional City Civil and Sessions Judge, Bengaluru, in Criminal Revision Petition No. 244/2016. The respondent, Sri Gouthamchand, had lodged a private complaint under Section 200 Cr.P.C. for an offence under Section 138 of the Negotiable Instruments Act, 1881, alleging that the petitioner issued several cheques for repayment of a debt. During the trial, the petitioner filed an application under Section 65 of the Indian Evidence Act, 1872, seeking permission to lead secondary evidence of the cheques, claiming that the original cheques were lost or misplaced. The trial court rejected the application, and the revisional court confirmed that order. The High Court examined the provisions of Section 65 of the Evidence Act, which allows secondary evidence when the original document is lost or not available. The Court noted that the courts below had erred in rejecting the application without considering the legal position. The High Court held that the petitioner is entitled to lead secondary evidence, as the loss of original documents is a valid ground under Section 65. Consequently, the petition was allowed, the impugned orders were set aside, and the trial court was directed to permit the petitioner to lead secondary evidence in accordance with law.
Headnote
A) Evidence Act - Secondary Evidence - Section 65 Indian Evidence Act, 1872 - Lost Documents - The petitioner sought to produce certified copies of cheques as secondary evidence after the originals were lost. The trial court and revisional court rejected the application. The High Court held that when a document is lost or not available, secondary evidence is permissible under Section 65 of the Evidence Act, and the courts below erred in rejecting the application. (Paras 1-10)
B) Negotiable Instruments Act - Dishonour of Cheque - Section 138 Negotiable Instruments Act, 1881 - Secondary Evidence - In a complaint under Section 138 NI Act, the complainant can lead secondary evidence of the cheques if the originals are lost. The High Court allowed the petition and set aside the impugned orders, permitting the petitioner to lead secondary evidence. (Paras 2-12)
Issue of Consideration
Whether the petitioner is entitled to lead secondary evidence under Section 65 of the Indian Evidence Act, 1872, in a complaint under Section 138 of the Negotiable Instruments Act, 1881, when the original cheques are lost or misplaced.
Final Decision
The High Court allowed the petition, set aside the impugned orders dated 24.03.2016 and 01.01.2018, and directed the trial court to permit the petitioner to lead secondary evidence in accordance with law.
Law Points
- Secondary evidence
- Section 65 Indian Evidence Act
- Section 138 Negotiable Instruments Act
- Criminal Procedure Code Section 482
- Certified copies
- Lost documents
Case Details
2018 LawText (KAR) (05) 6
G. S. Venkat Subba Rao (for petitioner), Tomy Sebastian (Senior Counsel for respondent) with Smt. Reny Sebastian
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Nature of Litigation
Criminal petition under Section 482 Cr.P.C. challenging orders rejecting application under Section 65 of Evidence Act to lead secondary evidence in a complaint under Section 138 NI Act.
Remedy Sought
Petitioner sought quashing of the order dated 01.01.2018 passed by the LXII Addl. City Civil and Sessions Judge, Bengaluru, in Criminal Revision Petition No.244/2016, which confirmed the order dated 24.03.2016 passed by the XV Addl. Chief Metropolitan Magistrate, Bengaluru, in C.C. No.9562/2012, rejecting the application under Section 65 of the Indian Evidence Act.
Filing Reason
The petitioner's application under Section 65 of the Indian Evidence Act to lead secondary evidence of cheques (originals lost) was rejected by the trial court and confirmed by the revisional court.
Previous Decisions
The trial court (XV Addl. CMM, Bengaluru) rejected the application under Section 65 of Evidence Act on 24.03.2016 in C.C. No.9562/2012. The revisional court (LXII Addl. City Civil and Sessions Judge, Bengaluru) confirmed that order on 01.01.2018 in Criminal Revision Petition No.244/2016.
Issues
Whether the petitioner is entitled to lead secondary evidence under Section 65 of the Indian Evidence Act, 1872, when the original cheques are lost or misplaced in a complaint under Section 138 of the Negotiable Instruments Act, 1881.
Submissions/Arguments
Petitioner argued that the original cheques were lost and therefore secondary evidence in the form of certified copies should be permitted under Section 65 of the Evidence Act.
Respondent opposed the application, but the judgment does not detail the respondent's specific arguments.
Ratio Decidendi
Under Section 65 of the Indian Evidence Act, 1872, secondary evidence is admissible when the original document is lost or not available. The courts below erred in rejecting the application for secondary evidence without considering this legal position. The petitioner is entitled to lead secondary evidence of the cheques in the complaint under Section 138 of the Negotiable Instruments Act.
Judgment Excerpts
The petitioner has called in question the order dated 24.03.2016 passed by the XV Addl. Chief Metropolitan Magistrate, Bengaluru, in C.C.NO.9562/2012 on the application filed under Section 65 of the Indian Evidence Act rejecting the said application which order was confirmed by the LXII Addl. City Civil and Sessions Judge, Bengaluru in Criminal Revision Petition No.244/2016 vide order dated 01.01.2018.
Procedural History
The respondent filed a private complaint under Section 200 Cr.P.C. for an offence under Section 138 NI Act. During trial, the petitioner filed an application under Section 65 of the Evidence Act to lead secondary evidence of cheques. The trial court rejected the application on 24.03.2016. The petitioner filed a criminal revision petition (No.244/2016) before the Sessions Court, which was dismissed on 01.01.2018. The petitioner then filed the present petition under Section 482 Cr.P.C. before the High Court.
Acts & Sections
- Indian Evidence Act, 1872: Section 65
- Negotiable Instruments Act, 1881: Section 138
- Code of Criminal Procedure, 1973: Section 200, Section 482
