((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2684 OF 2004 Rajendra Balwant Hudlikar Petitioner versus Vinayak Shrikrishna Londhe & anr. Respondents S.S.Kulkarni for petitioner. Rajesh More, APP for the State. Prashant Patil for respondent no.1. CORAM : A.S.OKA, J. DATE : 17th April 2009 JUDGEMENT : 1. Heard learned counsel for the petitioner and the learned counsel appearing for the first respondent. The petition is taken-up for final hearing. The petitioner is the complainant in a complaint alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act of 1881"). The petitioner in the complaint is relying upon a demand notice issued to the first respondent-accused. According to the case of the petitioner, when the demand notice was issued, the first respondent was in custody of Sarkar Wada Police Station, at Nashik and, ((-2-)) therefore, the said notice was served through the Officer in-charge of the said Police Station. According to the case of the petitioner, the original office copy bearing the acknowledgement signed by the concerned Police Officer was produced alongwith the complaint. 2. According to the petitioner the said original office copy was misplaced from the record. Therefore, an application was made seeking permission of the Court to lead secondary evidence of the said office copy of the notice by producing a xerox copy thereof. On 20th November 2003 the learned Magistrate passed an order permitting production of the xerox copy. However, the learned Magistrate observed that the question of permitting secondary evidence will be decided after the enquiry of missing documents. On the date on which the order was passed another application was moved by the petitioners stating therein that though in the earlier application it was stated that the xerox copy of the document was produced, inadvertently, the same was not produced. It was prayed that the production of the xerox copy be allowed. There was a further ((-3-)) order passed on 20th December 2003. The operative part of the said order reads thus :- "ORDER I) Xerox copy of the document at sr.no.6 mentioned in FERISTA of complaint i.e. copy of the notice which was delivered to the PSO of Sarkarwada police station for the service to the accused and the acknowledgement taken on that copy is allowed to be produced on record. II) The burden of proof of document lies on the complainant." While disposing of the said application, the learned Judge observed that unless the enquiry regarding allegation that the original document was missing is concluded, the secondary evidence cannot be allowed. Further, the learned Judge observed that as the trial was of a summary nature, a xerox copy of the missing document can be treated as secondary evidence. Thus, the sum and substance of the aforesaid orders is that the production of a xerox copy of the alleged office copy of the notice bearing acknowledgement of the Police Station has been permitted to be produced on record. 3. Now, the only question which requires consideration is whether further proceedings of the complaint will have to wait till the ((-4-)) enquiry regarding alleged missing document is concluded. On 07th November 2006, this Court passed an order calling for the information as regards status of the enquiry. Till today the report has not been received from the concerned Court. 4. In the application at Exhibit-43 a specific contention has been raised by the petitioner that the original office copy bearing acknowledgement of the Police Station was produced alongwith the complaint. In the said application it is asserted that during the course of cross-examination of the petitioner the fact that the original office copy has been misplaced was revealed and the said fact was brought to the notice of the Court by the advocate of the petitioner. These factual averments have not been disputed by the first respondent in his reply filed to that application. In the reply it is stated that the first respondent had no objection for taking on record a xerox copy of the alleged office copy of the notice but the petitioner will have to prove the said document. The reply shows that the specific averment made in the said application at Exhibit-43 that the ((-5-)) original office copy was produced and was misplaced has not been disputed by the respondent. Therefore, without waiting for the outcome of the enquiry which is presumably being held on the administrative side, the petitioner could have been allowed to lead secondary evidence by production of xerox copy of the missing documents. 5. Even if the original office copy was on record, the petitioner was required to prove the alleged acknowledgement on the said office copy. The petitioner was also required to prove that the notice was duly served to the accused. The learned counsel for the petitioner states that in the affidavit in lieu of examination-in-chief of the petitioner the said document has been proved. However, it is for the Trial Court to decide whether the said document has been duly proved. 6. In the circumstances, the impugned orders need modification. Hence, the petition is disposed of by passing following order :- (a) The impugned orders are modified by directing that the petitioner is permitted to ((-6-)) lead secondary evidence of the office copy of the notice by production of alleged xerox copy thereof which is already placed on record of the Trial Court; (b) The question of proof of the said document is kept open; (c) It will be open for the petitioner to lead additional evidence, if any, for proving the document. Even if the petitioner does not lead any further evidence, it will be open for the first respondent to recall the petitioner for further cross examination on the said document; (d) Issue of proof of document is expressly kept open which will be decided by the Trial Court on the basis of evidence which is already adduced and the evidence which may be adduced hereinafter; (e) Writ petition is disposed of in above terms; (f) This order will not preclude the concerned Court from concluding the enquiry conducted on the administrative side regarding allegation of ((-7-)) missing document. (A.S.OKA, J.)