1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Writ Petition 461/2010 Ashok Yashwantrao Khare V/s. Pravin Vishwanathrao Gaikwad ------------------------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. ------------------------------------------------------------------------------------------------------------------------------- Mr. Mahesh Rathod, Advocate for Petitioner Coram: A.P. Bhangale, J Dated : 26th July 2011 1. Heard Mr. Mahesh Rathod, Advocate for the Petitioner. 2. It appears that Summary Criminal Case No. 9910/2008 is pending before the Judicial Magistrate, First Class, Nagpur in which the application was filed on behalf of the accused with request to lead secondary evidence in respect of receipt dated 30/06/2004. According to the accused, he had filed one agreement dated 21/06/2004, and complainant admitted his signature on the said agreement (exh. 32). The accused had then given notice to the complainant to produce document (receipt dated 30/06/2004) but complainant denied the same, thus, original could not be brought on record. The signature of the complainant on the said receipt will 2 prove that original as well as signature on receipt i.e. 30/06/2004 is that of the complainant, therefore, it is necessary to permit the accused to lead secondary evidence in respect of receipt dated 30/06/2004. According to the accused, original document of the receipt is not in possession of him and the complainant also denied that he is in possession of the same. Therefore, original could not be brought on record. 3. Under these circumstances, when the original document is not available then the accused may be permitted to lead secondary evidence in respect of the photo stat copy thereof. Whilst, the prayer was objected by the complainant on the ground that xerox copy of the receipt is forged document and the receipt was never prepared by the complainant and that the accused has filed a forged and false document with a dishonest and fraudulent intention. 4. The learned Advocate for the complainant wants to rely upon the ruling in case of H. Siddiqui (dead) by Lrs. V/s. A. Ramalingam reported in 2011(4) Mh.L.J. SC 88 in order to submit that the documentary evidence is required to be proved in accordance with law. It is true that the secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. For this purpose, the parties may file their affidavits or lead evidence in this regard. The learned trial Magistrate 3 can, after allowing the parties to lead secondary evidence, appreciate as to whether it is admissible according to law. 5. For these reasons, the impugned order dated 29/01/2010 is set aside. The learned Magistrate is directed to allow parties to lead evidence in respect of photo stat copy. Truth of the contents thereof is a matter of appreciation of evidence after the parties have led their respective evidence in the case. Hence, the application is disposed of accordingly. JUDGE Punde