IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : November 18, 2009. CRM M-29700 of 2008 (O/M). M/s Shree Manohar International C/o M/s Jainsons Knit Pvt. Ltd., Ludhina. ...... Petitioner(s). Versus. Neelam Rani Jain ...... Respondent(s). CRM M-29731 of 2008 (O/M). M/s Shree Manohar International C/o M/s Jainsons Knit Pvt. Ltd., Ludhiana. ...... Petitioner(s). Versus. Narinder Kumar and Sons (H.U.F.). ...... Respondent(s). CORAM:HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present: Mr. Raj Paul Kansal, Advocate, for the petitioner. (in both the petitions). Mr. Amit Rawal, Advocate, for the respondent. (in both the petitions). AUGUSTINE GEORGE MASIH, J. By this order, I propose to dispose of CRM M-29700 of 2008 M/s Shree Manohar International Versus Neelam Rani, and CRM M-29731 of 2008 M/s Shree Manohar International Versus Narinder Kumar and sons (H.U.F.), with the consent of the parties as these petitions have been preferred under Section 482 Cr.P.C. with similar prayer, based on the same documents, between the same parties and for the same relief. CRM M-29700 of 2008 (O/M). For the sake of convenience, facts have been taken from CRM M-29700 of 2008 M/s Shree Manohar International Versus Neelam Rani Jain. The orders under challenge are also of the same date. Prayer in these petitions is for quashing of orders dated 15.09.2008(Annexure-P-3), passed by the learned Judicial Magistrate 1st Class, Ludhiana, and quashing of criminal complaint, titled as Mrs. Neelan Rani Jain Versus M/s Shree Manohar International and another. At the very outset, it needs to be recorded that counsel for the petitioner did not press his prayer with regard to quashing of criminal complaint titled as Mrs. Neelam Rani Jain Versus M/s Shree Manohar International and another. However, he has pressed for quashing of order dated 15.09.2008 (Annexure-P-3), passed by the learned Judicial Magistrate 1st Class, Ludhiana, wherein application moved by the petitioner for leading secondary evidence, had been rejected by the learned Trial Court. Counsel for the petitioner contends that a criminal complaint was preferred by Mrs. Neelam Rani Jain against the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the Act”). During the pendency of the said complaint, a compromise dated 13.04.2007 had taken place between petitioner and respondent, with the intervention of the respectables of the locality. As per the terms of the compromise respondent/complainant had received knitted cloth worth Rs. 2,52,483/- vide Bill No. 107, dated 13.04.2007, and had received cash amount of Rs. 42,517/- and a meager amount of Rs. 30,000/- was still to be paid by the petitioner/accused, who was ready to make the said payment. Unfortunately, the original compromise dated 13.04.2007 and the bill book -2- CRM M-29700 of 2008 (O/M). were lost. The petitioner/accused made efforts to trace out the same, but the same could not be found. However, on entering into a compromise between the parties, the said compromise as also the bill book, referred to above, photocopies of the same were got prepared and photocopies of these were got attested and notarised from the Notary Public at Ludhiana. As the original compromise and the bill book had been lost, an application dated 29.08.2007, was preferred by the petitioner/accused before the learned Trial Court for leading secondary evidence to prove the original compromise and bill book. On being contested by respondent/complainant, the same was rejected by the learned Trial Court, vide order dated 15.09.2008 (Annexure-P-3). He further contends that application dated 29.08.2007 for leading secondary evidence was supported by an affidavit. The petitioner/accused, as a matter of fact, had lodged D.D.R. No. 9, dated 18.05.2007, in Police Sundar Nagar, District Ludhiana (Annexure-P-4). When the documents were duly notarised and attested by the Notary Public, then the same is admissible in evidence and, therefore, the learned Trial Court should have permitted the application, moved by the petitioner/accused for leading secondary evidence. He further contends that the function of the notary is to verify, authenticate, certify or attest the execution of any instrument. The documents having been duly attested by the Notary Public, which was photocopy of the original document, meaning thereby that the original documents had been produced before the Notary Public, who had, on seeing the same, attested the photocopy of the original document, the execution of the document stood fully proved and, thus, the observations of the learned Trial Court, while rejecting the application of the petitioner/accused for permission to lead secondary evidence is not in -3- CRM M-29700 of 2008 (O/M). accordance with law. He relied upon the judgment of this Court in the case of Banarsi Dass Versus Maman Chand, A.I.R. 1992 Punjab and Haryana, 145, to contend that where a document bears the attestation of the Notary, i.e., a true photocopy of the original and the said document itself shows that the photocopy was compared with the original document by the Notary Public and, therefore, the existence of the document and its admissibility in evidence is in accordance with law. On the other hand, counsel for respondent/complainant contends that the basic requirement of an application for leading secondary evidence to be allowed by a Court is the existence and execution of document, which is essential. Secondary evidence relating to a document can only be given, if it is able to establish loss of original document and reasons should be clearly enumerated, as to how, when, and where the said document was lost and the efforts, which were made to trace out the same. He, therefore, contends that the basic requirement of law as provided under Section 65 of the Indian Evidence Act, having not been fulfilled in the application moved by the petitioner/accused before the learned Trial Court, the said application had been rightly rejected by the learned Trial Court. He further contends that the application is devoid of the basic material ingredients, which would fulfill the requirement of Section 65 of the Indian Evidence Act, which would have given the petitioner/accused right to lead and produce secondary evidence before the learned Trial Court. For these contentions, he relied upon the judgments of Hon'ble the Supreme Court in the case of Smt. J. Yashoda Versus Smt. K. Shobha Rani, 2007 (2) R.C.R. (Civil), 840, and judgment of this Court in the case of M/s Parkash Chand Kapoor Chand Versus Inderjit Singh and others, 2006 (3) C.R.C. (Civil) -4- CRM M-29700 of 2008 (O/M). 700. He submits that there was no compromise, which was entered into between the parties and the alleged compromise dated 13.04.2005 and the documents, which were sought to be produced in secondary evidence, are forged documents. The documents do not bear signatures of Narinder Kumar Jain or his wife Smt. Neelam Rani Jain-respondent/complainant. In the application, no date, month, and year had been mentioned as to when the alleged compromise and document were lost. Even the place where the same had been lost, has not been mentioned. As regard D.D.R. No. 9, dated 18.05.2007 (Annexure-P-4), which is alleged to have been got recorded by the petitioner/accused, he contends that the same is not a part of the record of the learned Trial Court nor was it attached with the application and mention of the same is also not there in the said application. That apart, he contends that the statement of the petitioner/accused under Section 313 Cr.P.C. was recorded on 10.04.2007, where he had mentioned that a compromise had taken place between the parties. The compromise, which was now sought to be produced and that too by way of secondary evidence is dated 13.04.2007. Even if it is accepted that the original documents were lost on 18.05.2007, after 10.04.2007 there were two dates before the learned Trial Court, i.e., 24.04.2007 and 10.05.2007. On these dates, no application was moved by the petitioner /accused before the learned Trial Court for production of these documents, which came into existence on 13.04.2007. Thereafter, the case came up for hearing before the learned Trial Court on 11.06.2007, 07.08.2007 and 17.08.2007, but on none of these occasions, any application was moved before the learned Trial Court with regard to the fact that the original compromise and the bill book stood lost. The application, for the first time, had been moved on 29.08.2007, -5- CRM M-29700 of 2008 (O/M). which again was devoid of any details whatsoever, which would fulfill the requirement of the provisions of Sections 63 and 65 of the Indian Evidence Act. He on this basis submits that the application moved by the petitioner/accused was not bonafide and had been preferred merely to delay the trial proceedings. On 24.08.2009, records of the learned Trial Court were called for and the same were received. I have heard counsel for the parties and have gone through the records of the case. Sections 63 and 65 (c) of the Indian Evidence Act would be relevant for the just decision of this case and are reproduced below :- “Section 63. Secondary Evidence - Secondary evidence means and includes. 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. Section 65. Cases in which secondary evidence relating to documents may be given :- Secondary evidence may be given of the existence, condition or contends of a document in the following cases :- a. to b xxx xxx c. When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; -6- CRM M-29700 of 2008 (O/M). d. to g xxx xxx ” A perusal of the above would show that the best evidence, which could be led by a party is preliminary evidence, which is the original document. It is only at the stage, when the said documents were not available, which could be for the reason as in the present case, the documents having been lost, then the existence, or contends of the documents, are required to be proved. The basic requirement, therefore, for producing secondary evidence relating to a document is, to prove that the said documents have been lost but that would not suffice. What is, therefore, required is proving the existence and execution of the documents. Unless, the first hurdle with regard to existence and execution of the documents as also the contents of the documents are crossed, and the second hurdle permission to lead secondary evidence cannot be granted. Hon'ble the Supreme Court in the case of Smt. J. Yoshda (supra) has, in paras-7, 8, and 9, held as follows :- “7. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contends. 8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence “means and includes” and then follow the five kinds of secondary evidence. 9. The rule which is the most universal, namely, that the best evidence the nature of the case will admit shall be -7- CRM M-29700 of 2008 (O/M). produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contends of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. In Ashok Dulichand Versus Madahavlal Dube and Another [1975 (4) S.C.C. 664], it was inter alia held as follows : “After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of the Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case -8- CRM M-29700 of 2008 (O/M). is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973,, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed Photostat copy. Prayer was also made by the appellant that in case respondent No. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the Photostat copy had been filed by the appellant was in the possession of respondent No. 1. There was also no other material on the record to indicate the original document was in the possession of respondent No. 1. The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in possession of the original document at the time its copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the Photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court.” This High Court also in the case of M/s Parkash Chand Kapoor Chand (supra), has in para-6 held as follow :- -9- CRM M-29700 of 2008 (O/M). “6. I have given my thoughtful consideration to the contentions raised by learned counsel for the respective parties. In order to appreciate the same the provisions of Section 65(c) of the Evidence Act which provides for leading of secondary evidence when the original has been destroyed or lost may be noticed. The same reads as under :- 65. Cases in which secondary evidence relating to documents may be given :- Secondary evidence may be given of the existence, condition or contents of a document in the following cases :- a. to b xxx xxx c. When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; d. to g xxx xxx In terms of the above, it is evidence that the secondary evidence may be given of the existence, condition or contents of a document in the cases enumerated above. In terms of clause (c) thereof it is provided that secondary evidence may be given when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. The principle underlying the provisions of Section 65 of the Evidence Act is that the best evidence that is available should be produced. The original document is always the best and primary evidence. Section 65 provides an alternative method of proving the contents of a document which for various reasons cannot be produced. However, it is liable to be shown that the original document of which secondary evidence is sought to be produced was in existence. Besides, secondary evidence is admissible when it is shown that the primary evidence which is the original document was in existence. Therefore, before secondary -10- CRM M-29700 of 2008 (O/M). evidence of a document can be led and proved, the original document i.e. the agreement to sell dated 13.06.1995 has not been shown to exist or accounted for anywhere and it is only for the first time in the written statement dated 10.08.2000 that it has been stated by defendants No. 2 and 3 that Inderjit Singh (defendant No. 1) had executed an agreement to sell dated 13.06.1995. the aid agreement is also stated to be with the respective husbands of defendants No. 2 and 3 and not with the defendants No. 2 and 3 themselves. In fact, the stand taken by defendants No. 2 and 3 is that on 13.06.1995 i.e. the date of entering into the agreement of sale of land measuring 20 Bighas @ Rs. 40,000/- per Bigha the earnest money amounting to Rs. 5,49,000- was received by Inderjit Singh (defendatn No. 1) and an agreement to this effect was executed in favour of the husbands of the respective defendants No. 2 and 3. Therefore, if earnest money amounting to Rs. 5,49,000/- had been received on 13.06.1995 and that also in pursuance of the agreement, a mention of the same i.e. regarding existence of the agreement would have been there in the sale deed that was subsequently executed by Inderjit Singh (defendant No. 1) in favour of Kulwinder Kaur and Tejinder Kaur (defendants No. 2 and 3). Besides there must be some other material to even otherwise show prima facie as to how the said amount of Rs. 5,49,000/- was raised on or some time before 13.06.1995 and how it was expended by by Inderjit Singh (defendant No. 1). This Court in the case of Mangat Ram Versus Prabhu Dayal and others , 2002 (4) R.C.R. (Civil) 706; 2002 (3) C.C.C. 381(P/H), held that when document is lost, the applicant must show how he produced its photocopy which is produced. The said case was not a case where the documents were required to be kept in duplicate and in triplicate and the applicant having failed to prove as to how he arranged photocopy of the original document, the application for seeking permission to lead secondary evidence was dismissed. In Hari Singh Versus Shish Ram and others, -11- CRM M-29700 of 2008 (O/M). 2002 (4) R.C.R. (Civil) 830 ; 2003 (`1) C.C.C. 554 (P/H), in a case where the applicant seeking permission to lead secondary evidence had failed to prove the existence of the document, it was held that before a party is permitted to adduce secondary evidence, it is a sine qua non for him to show that the document was in existence and despite notice, it has not been produced by the party in whose custody the document was kept.” In the present case, the petitioner/accused has miserably failed in proving that the documents had indeed been lost, as the basic ingredients for proving the same, were missing in the application, which had been moved by the petitioner/accused before the learned Trial Court. No date, time, month, and year had been mentioned in the application, as to when the alleged compromise dated 13.04.2007 and the bill book were lost. Place and how it was lost, had also not been mentioned. The D.D.R. No. 9, dated 18.05.2007 (Annexure-P-4) recorded at Police Post Sundar Nagar, District Ludhiana, which has been attached with this petition, does not find mention in the application. A perusal of the D.D.R. No. 9, dated 18.05.2007 also shows that there is no date, time, and place mentioned with regard to loss of bill book. What is important here is that this D.D.R. was only with regard to loss of three cheques, number whereof and bill book only had been mentioned. There is no mention of loss of agreement dated 13.04.2007, which is the basic document, which was being sought to be produced by the petitioner/accused before the Trial Court through secondary evidence. Thus, the application being devoid of the basic ingredients and material for bringing it within the purview of Section 65(c) of the Indian Evidence Act, the same had been rightly rejected by the learned Trial Court. -12- CRM M-29700 of 2008 (O/M). That apart the conduct of the petitioner during the trial proceedings itself shows that the present application had been moved by him to delay the trial. The statements of accused under Section 313 Cr.P.C. were recorded on 10.04.2007. He states that there is an agreement in existence between the parties and the matter has been compromised. However, the alleged agreement is dated 13.04.2007. The case, thereafter, came up for hearing before the learned Trial Court on 24.04.2007, 10.05.2007, 23.05.2007, 11.06.2007, 07.08.2007, and 17.08.2007, but no application either to place on record the original documents or any application with regard to the same having been lost, was preferred by the petitioner/accused. Even if Annexure-P-4, i.e., D.D.R. No. 9, dated 18.05.2007, is taken into consideration as the date when the documents were lost, still the petitioner/accused had two dates, i.e., 24.04.2007 and 10.05.2007 to produce the original documents before the learned Trial Court. After the registration of the D.D.R. No. 9, dated 18.05.2007, again the learned Trial Court was ceased of this matter on 23.05.2007, 11.06.2007, 07.08.2007, and 17.08.2007, but no application with regard to original documents having been lost , was preferred by the petitioner. The application for leading secondary evidence was preferred only on 29.08.2007, which again did not disclose the factum of D.D.R. No. 9, dated 18.05.2007 having been recorded with the police. This is obvious for the reason that D.D.R. No. 9, dated 18.05.2007, does not refer to compromise dated 13.04.2007 and this is the reason why D.D.R. No. 9, dated 18.05.2007 was not produced before the learned Trial Court. Firstly, the existence of the documents having been denied by the respondent and if there being such documents, the authenticity of the same also denied by the -13- CRM M-29700 of 2008 (O/M). respondent and particularly when the said original documents are not available, the factum of documents having lost, giving details of the said loss, resort to preferring the present application for secondary evidence can only be said to be with a malafide intention to delay the trial proceedings. In the light of the above, no fault can be found in the impugned order dated 15.09.2008 (Annexure-P-3), passed by the learned Judicial Magistrate 1st Class, Ludhiana. Finding no merit in both the petitions, the same stand