1 Amk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 445 OF 2007 WITH CRIMINAL REVISION APPLICATION NO. 447 OF 2007 Bholenath Developers Ltd. .. Applicant Vs. Alok Tiwari & Ors. .. Respondents Mr. Lalla i/b M/s. Lalla & Lalla for the Applicant Mr. Niranjan Mundargi for Respondent Nos.1 & 2. Mrs. A. A. Mane APP for the State. CORAM : MRS. R. S. DALVI, J. DATE : 19th November, 2009. P.C.: 1. These applications challenge the orders of learned Sessions Judge, Mumbai setting aside the order of the learned Magistrate allowing secondary evidence to be led by way of copies of the original document upon the prima facie satisfaction about the reason for leading secondary evidence. 2. The applicant who is the original complainant in Criminal complaint under Section 138 of the Negotiable 2 Instruments Act sought to prove the dishonoured cheque, memo of dishonour, copy of notice of demand, postal acknowledgment of having sent the notice etc. These documents were said to be destroyed in a fire. Evidence with regard to fire itself has been led. A panchnama has been made. The learned Magistrate upon being satisfied, concluded that a case for leading secondary evidence is made out. 3. This conclusion is also prima facie. It is subject to the cross-examination of the witness producing secondary evidence as well as the reason for the proof of the secondary evidence. Nothing has been foreclosed by the Magistrate. The learned Magistrate has specifically observed that the evidential value of the documentary evidence shall be assessed in the light of cross- examination at proper stage. The order is absolutely correct. Even the application is correctly made. 4. It may be mentioned that any application can be made orally or in writing. It is only because of controversy between various parties that as a matter of prudence several applications are required to be made in writing which the other party has an 3 opportunity to dispute. However, that does not take away the right of the party or his Advocate to make an oral application and the right of the Court to consider such an application which is orally made. 5. To allow a party to lead secondary evidence during the course of trial, evidence as required under Section 65 of the Indian Evidence Act is to be orally led by the witness. If the judge is satisfied that a case is made out for proving the document by secondary evidence, such evidence can be allowed to be led. In fact that is the spirit of the substantive law of evidence. 6. That can be seen from the fact that Section 65 of the Indian Evidence Act does not require any application to be made in writing in any particular form. There is nothing in the Procedure Codes, civil or criminal which lays down how an application for leading documentary evidence by secondary evidence is to be made. It, therefore, implies that such application can be made even orally. 7. All that is required, is the satisfaction of the Court that 4 the provisions of Section 65 of the Indian Evidence Act are complied in its spirit. Therefore, the reason for leading secondary evidence and the actual document produced as secondary evidence is required to be seen by the Court. 8. If a mere xerox copy of a document taken without showing the source of its production is sought to be tendered by secondary evidence it would be rejected. The witness is required to show in essence why the evidence is required and produce a copy of the original document taken out by manual or mechanical process – to cite a typewritten carbon copy, a xerox copy originally taken out when the document came into being and before it was lost or destroyed etc. 9. Once these parameters are satisfied, the party must be entitled to produce all the evidence that he or she desires. No party can be disallowed from producing any relevant evidence upon a mere technicality. Hence, stating that the written application is not in proper form or is otherwise vague or does not show particulars, cannot entitle the Court to reject the evidence which is being produced on merits. 5 10. The order of the learned Sessions Judge disallowing the evidence even though the panchnama was produced to evidence the fire and the copies of the documents available with the complainant at the time of destruction in fire are produced, is clearly erroneous. This order, therefore, requires interference. 11. The order of the learned Magistrate is restored. Criminal Revision Applications are disposed of allowing the learned Magistrate to consider the oral evidence which he has allowed in C. C. No. 416/SS of 2005 and C. C. No. 424/SS of 2005 as per the order dated 11.04.2007. 12. The trial shall proceed upon considering such evidence. 13. The Registrar (Judicial) shall serve a copy of this order upon the learned Sessions Judge who passed the impugned order. (R. S. DALVI, J.)