1 CRI.APP.NO.4340/2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.4340 OF 2008. Bhanudas s/o Baburao Gawali, Age: 50 years, Occ: Agriculture, R/o: Manthale Nagar, Latur, Dist.Latur. ...Applicant. Versus Rohidas s/o Sakharam Pawale, Age: 43 years, Occ: Business, r/o: Gawali Nagar, Latur, Dist.Latur. ...Respondent. ... Mr.S.S.Manale, Advocate for the applicant. Respondent-Served-Absent. ... CORAM: A.V.NIRGUDE,J. Date : 3rd July, 2009. COURT'S ORDER: 1. Heard Mr.S.S.Manale, learned Advocate for the applicant. Respondent is absent though he is properly served with the notice. 2 CRI.APP.NO.4340/2008 2. The applicant who is complainant in the lower Court has challenged the order passed by the learned Chief Judicial Magistrate, Latur on Exh. 57 in STCC No.4091/2005. The respondent was prosecuted under Section 138 of the Negotiable Act. The applicant alleged that he had given to the respondent a hand loan and to effect repayment of the loan the respondent/accused handed over to him the cheques in question. The cheques were dishonoured and so the complaint came to be lodged. 3. The defence of the respondent was that the applicant had given him right to sell his immovable property namely certain plots near Latur City. He said that this right was given to him and others only for a period of 01.01.2005 to 01.01.2006. An agreement to that effect was executed in his and two others favour. He said, to ensure due compliance of the agreement the applicant took from him three blank signed cheques as security. The respondent has been taking this defence since prior to filing of the complaint. The respondent,even lead his own oral evidence in his defence and he said that the 3 CRI.APP.NO.4340/2008 original agreement, a mention of which is made above, was not with him. He said, he has a xerox copy. Since it was a xerox copy, the same was not accepted on record. After completion of recording of his deposition, the respondent moved an application under Section 65 of the Evidence Act, seeking permission to lead secondary evidence relating to the xerox copy of the agreement. In that application,he said- "It is pertinent to be noted that, alleged document is not in possession of the accused, It is beyond the control of the accused to produce original document. He has tried his best level to get the original documents. All efforts have gone fruitless. The complainant has also denied the possession of the original documents. Therefore, there is no option to the accused but to lead the secondary evidence regarding the documents which is xerox copy filed on record." 4. The applicant/complainant opposed such move saying that the application is not within the frame work of Section 65 of the Indian Evidence Act. But the learned Chief Judicial Magistrate passed the impugned order saying that the respondent accused should be given an opportunity to lead secondary evidence, because 4 CRI.APP.NO.4340/2008 of that the case could be finally decided and multiplicity of litigation between the parties would be avoided. The learned Chief Judicial Magistrate opined that, "if at all the documents come on record the parties would argue about it's evidential value. 5. The question is whether the respondent could have succeeded in seeking permission to lead secondary evidence relating to the so called photo state copy of the alleged agreement. In order to answer this question, on has to minutely read Section 65 of the Indian Evidence Act, 1872. It reads as under: "Sec.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) when the original is shown or appears to be in the 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, or of any person legally bound to 5 CRI.APP.NO.4340/2008 produce it, and when, after the notice mentioned in section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (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) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in (India) to be given in evidence; (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible. 6 CRI.APP.NO.4340/2008 In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents." 6. As per the contention of the respondent mentioned in the application and quoted above, he does not say that he had the original document with him and that had lost it. Since the document was executed in his favour, it was he or the other beneficiaries who should have it. He simply stated that the document in question was not in his possession. In view of the above quoted paragraph of his application, his case would not fall within the para meter of Clause (a) or Clause (c) or clauses (d) (e) (f) (g). The application on which the impugned order is came to be passed, did not contain averments necessary to fit it in the para meter of Section 65 of the Evidence Act. The learned Chief Judicial Magistrate, it seems, did not take pains to examine this lacuna of the application. He 7 CRI.APP.NO.4340/2008 apparently did not examine as to whether the application would fall within one of the clauses of Section 65 of the Evidence Act. The approach of the learned Chief Judicial Magistrate, it seems, was casual, which was not expected at that stage of the trial. The application, therefore succeeds. The application is allowed in terms of prayer clause (B) & (C) of the application. The impugned order stands quashed and set aside. (A.V.NIRGUDE,J.) lkp