( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 516 OF 2010 Mukesh s/o Digambar Deolalikar APPLICANT VERSUS Raju Arunkumar Jhanjaria RESPONDENT .... Mr. N.B. Narwade, advocate for the applicant. Mr. L.B. Pallod, advocate for the respondent. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 6th October, 2010] PER COURT : 1. By this application, the applicant seeks quashing of order dated 15th January, 2010, rendered by the learned Judicial Magistrate (F.C.), Ahmednagar on an application (Exh-76) filed in Summary Case bearing S.T.C. No. 3089/2007. 2. The applicant is original complainant and filed private complaint case for offence punishable under section 138 of the Negotiable Instruments Act, alleging that the respondent issued a cheque in his favour for amount of Rs. three (3) lacs which was dishonoured. He alleged that though demand notice was issued, yet, it was not complied with and, ( 2 ) therefore, the respondent is guilty for offence under section 138 of the Negotiable Instruments Act. 3. The respondent filed an application for permission to lead secondary evidence in respect of a receipt which is purportedly executed by the applicant. The case of the respondent is that the original receipt of deposit made by him is filed in the proceedings of the criminal cases bearing S.T.C. No. 39001/2006 and S.T.C. No. 39002/2006 instituted by him for offence under section 138 of the Negotiable Instruments Act in the Court of learned Judicial Magistrate (F.C.), Indore. The respondent alleged that the receipt has been executed by the present applicant and would falsify his allegation regarding the payment made to the respondent. The respondent produced certified copy of the receipt. 4. The learned Judicial Magistrate allowed the application and granted permission to prove the receipt filed at Exh-44/15 in the criminal case by adducing secondary evidence. 5. The learned advocate for the applicant would submit that such permission cannot be granted in favour of the ( 3 ) respondent because the respondent desires to prove copy of the document though the original receipt is fabricated and false. It is argued that if such permission is granted, then the prosecution of the respondent for offence of perjury will be stalled. 6. Section 65 (c) of the Indian Evidence Act reads as below : "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) **** (b) **** (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." 7. Perusal of Section 65 (c) reveals that such permission can be granted for any other reason which is not accountable to default of the party. The respondent filed certified copy of the receipt. It is stated by learned advocate for the respondent that the receipt has been duly ( 4 ) proved before the Court of learned Judicial Magistrate (F.C.) and, therefore, it is admitted in evidence in the criminal cases pending on the file of learned Judicial Magistrate (F.C.) at Indore. Thus, the proof of the document is already submitted by the respondent. If the applicant had any objection regarding fabrication of the document, then it could have been raised before the learned Judicial Magistrate, Indore and appropriate action for offence of perjury could be sought against the respondent. In any case, when such a document is filed in the Court of Judicial Magistrate (F.C.) at Indore, it is difficult to contemplate any criminal action against the applicant in the Court of learned Judicial Magistrate (F.C.), at Ahmednagar. The grant of permission to lead secondary evidence cannot be faulted with when it is noticed that the original document i.e. the receipt is filed in the judicial proceedings pending on the file of learned Judicial Magistrate (F.C.) at Indore. For, the said document being proved one, cannot be returned to the respondent without disposal of the said criminal cases instituted by him and, therefore, it would be difficult for him to produce the original receipts. These reasons are taken into account by the learned Judicial Magistrate (F.C.) while passing the impugned order. Under the circumstances, the impugned order cannot be ( 5 ) deemed as perverse. No interference is called for. The application is dismissed. [V.R. KINGAONKAR] JUDGE NPJ/criapln516-10