Civil Revision No.2873 of 2008 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.2873 of 2008 Date of Decision: May 19, 2008 Parminder Singh & Company, BXX-2970, Gurdev Nagar (Back side Malhar Theatre), Ludhiana. ...Petitioner VERSUS Ludhiana Improvement Trust, Ludhiana & others ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Pawan Kumar, Advocate and Mr.Swapan Shorey, Advocate, for the petitioner. ***** RANJIT SINGH, J. Prayer of respondent No.3 for leading secondary evidence in regard to cheques bearing No.0168212 and 0168213 drawn on Bank of Baroda, Block Tower, Ludhiana stands allowed. Feeling aggrieved against the same, the petitioner has filed the present revision petition to impugn the said order. Respondent-Improvement Trust had issued Civil Revision No.2873 of 2008 : 2 : advertisement for auction of one hotel site, situated in the Model Town Extension Scheme, Ludhiana., The auction was initially fixed on 20.1.1992, but was conducted on 25.2.1992. The hotel site was auctioned for Rs.39, 94,320/-. The successful bidder had deposited 25% of the bit amount. The dispute has now arisen between the petitioner and respondent No.3, who are Parminder Singh and Company and Shri Parminder Singh son of Jagdish Singh. It is claimed by plaintiff Jasbir Singh that he is proprietor of M/s Parminder Singh & Company and his bid was accepted in the said auction. He further says that the money was deposited by him. When respondents No.1 and 2 were intended to cancel the said auction, he filed the instant suit. Respondent No.3, however, claims that he was successful in the bid and he had deposited the entire amount. He has also filed a separate suit for seeking declaration that he is the real purchaser of the plot and has impleaded the plaintiff in the present suit as one of the defendants. Both the suits were consolidated and are being tried. It is noticed that amount of Rs.four lacs was deposited by the successful bidder vide receipt No.78620 dated 25.2.1992. Otherwise, it is stated that total amount of Rs.six lacs was deposited with Ludhiana Improvement Trust vide draft No.551927 dated 25.2.1992 drawn on Bank of Baroda against receipt No.78559 dated 25.2.1992. Both the plaintiffs and respondents are alleging that they had deposited the said amount. Respondent No.3, however, pleads that the Bankers cheque/draft No.551927 dated 25.2.1992 was got issued from the Bank account of Maan Singh & Company against Civil Revision No.2873 of 2008 : 3 : cheque No.0168212 dated 25.2.1992 issued by Shri J.S.Garcha father of the defendant on behalf of M/s Maan Singh & Company. Application accordingly was filed for grant of permission to prove the cheques in question by way of secondary evidence. It is revealed in the application that record of the bank relating to the withdrawal of the amount of Rs.four lacs by Maan Singh & Company was summoned from the Bank. It is then disclosed that the record relating to the cheques in question was destroyed by the Bank as per the guidelines and, thus, this record is not available. Original cheques accordingly cannot be produced. The plaintiff has obtained the copies of the cheques as per the provisions of the Banker Books Evidence Act, which has already been placed on record as marks DX2 and DX3. It is also stated that father of the defendant-applicant had made an endorsement on the back of cheque No.0168212 requesting the Bank to issue pay order in the name of Chairman, Improvement Trust, Ludhiana. Since the original record has been destroyed, permission is sought to prove the said certified copies of the cheques by way of secondary evidence. The petitioner, however, objected to this prayer made on behalf of respondent No.3. It is submitted that copies of the cheques in question cannot be issued under the Banker Books Evidence Act and it is pleaded that the copies are ante-dated, fabricated and forged. Plea further is that the loss of the original document is required to be proved before the party can seek permission to lead secondary evidence. It appears that the trial court has mainly been impressed Civil Revision No.2873 of 2008 : 4 : by the action of respondent No.3 to examine Anil Sharma, DW-3, who has stated that the certified copies of the cheques in question were issued by him. DW-3 has further stated that the record relating to original cheque book has been destroyed. It is submitted with some justification that if the originals cheques are destroyed then from where the copies have been certified by the Bank or the Bankers. The trial court has made reference to a few judgments to say that when original cheque is shown to the court to have been lost/destroyed, then the permission to lead secondary evidence can be granted. At the same time, the trial court rightly observed that there is no provision under the Banker Books Evidence Act, whereby certified copies of the cheques could be issued. DW-3 was cross- examined to cast doubt in regard to the loss/destruction of the original document and it is thus urged that respondent No.3 was not able to lay proper basis for leading secondary evidence in regard to the cheque in the form of certified true copy. The petitioner would rightly raise question as to how the certified copies of the cheques are issued by the Bank if these can not be so issued under Banker Books Evidence Act. I have perused the impugned order. It appears that photostat copies of the cheques are available and are being produced on record as secondary evidence. Nothing is available from the record to show from where these photo copies of the cheques have become available with the Bank to certify the cheques as certified copies. If the original is lost, how the photo copies were kept and are available with the Bank to certify these as a true copy of the Civil Revision No.2873 of 2008 : 5 : original. Concededly the original cheques are not available for comparison. How their certified copies have been prepared?. Though the trial court has found this to be a fit case to allow the photo copies of the cheques as secondary evidence, but apparently these documents would not be free from doubt. Perhaps it is in this background that the court has itself observed that it is not to meticulously examine the evidence brought on file. This is only a permission to lead secondary evidence. Obviously, at the stage of allowing this application for secondary evidence, the court has not considered what value is to be attached to the documents so produced and permitted to be placed on record as secondary evidence. The certified copies of the cheques certainly are not free from doubt, though are being allowed to be led as secondary evidence. The court itself has noticed that this evidence cannot be so certified under the Banker Books Evidence Act. Then why the Bank has done it, needs to be gone into. Is it to help the respondents?. At least the the court should not appear soft to any party. As already observed, the non-availability of the original cheques having been conceded, the action of the Bank employee to certify these cheques to be true, copies cannot be easily accepted. Since the court itself has appeared to have left the question open in regard to the value to be attached to this document, which is to be determined at the final stage, I am not inclined to interfere in the order granting permission to lead these documents by way of secondary evidence. However, it would be necessary to convey a clear message to the court to be vigilant as attempt appears to be to Civil Revision No.2873 of 2008 : 6 : have this property which now must be worth a fortune. At this stage, it is only a permission to lead secondary evidence given. Certainly the court would go into the remaining assertions and allegations made by the parties and see if this document is authentic or not and what value is to be attached to the same. It can certainly be expected that the court would place reliance on this evidence only if it comes to the conclusion that it is a genuinely a true certified copy of the original after ruling out the possibility of any attempt to mislead. With the above observations, the present revision is disposed of in limine without notice to the respondents. May 19, 2008 ( RANJIT SINGH ) ramesh JUDGE