IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.500 OF 2008 Keynote Corporate Services Ltd. .. Petitioner Vs. Shri A.C.P.Industries Ltd. & Ors. .. Respondents Mr.R.R.Salvi with Mr.A.Bagla i/by M/s.Bagla Dandekar & Co for petitioner. Mr.I.P.Bangaria for respondent Nos.1 and 2. Mr.J.P.Yagnik, A.P.P for respondent No.5. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE : 08th July 2008. P.C.: . The submissions of the learned counsel appearing for the parties were heard yesterday. By this petition under Article 227 of the Constitution of India, the petitioner has taken an exception to the orders dated 12th December 2007 as well as 31st January 2008 passed by the learned Special Metropolitan Magistrate, Mumbai and learned Additional Sessions Judge, Mumbai respectively. 2. The petitioner filed a complaint under section 138 of the Negotiable Instruments Act, 1881 against the : 2 : 1st to 4th respondents. In the said complaint, an affidavit in lieu of examination-in-chief of one Mr.Uday Patil was filed by the petitioners. On 01st December 2007, an application was filed by the petitioner seeking permission to lead secondary evidence. Secondary evidence was sought to be adduced as according to the case of the petitioner, the original documents including the cheque in dispute were not traceable. The said application was contested by the 1st to 4th respondents. By order dated 12th December 2007, the learned Special Metropolitan Magistrate, Mumbai rejected the said application on the ground that the affidavit in lieu of the examination-in-chief of the petitioner was filed on record without seeking any permission to lead secondary evidence. The application was rejected on the ground that the same was filed after filing the affidvit in lieu of the examination in chief of the representative of the petitioner/complainant. 3. A Revision Application preferred by the petitioner against the said order was rejected by the judgment and order dated 21st January 2008 by the learned Additional Sessions Judge. 4. The submission of the learned counsel for the : 3 : petitioner is that in the affidavit in lieu of examination in chief itself a foundation was laid for leading secondary evidence of the documents which were misplaced or which were not traceable. He submitted that only a formal application was made by the petitioner seeking permission to lead secondary evidence of the documents which were misplaced. The secondary evidence of the cheque was sought to be led by producing a true xerox copy thereof. He, therefore, submitted that the Courts below have committed an error by rejecting the application made by the petitioner. 5. The learned counsel appearing for the 1st to 4th respondents relied upon a decision of the Apex Court in the case of State of Rajasthan & Ors. Vs. Khemraj & Ors. (AIR 2000 SC 1759). He submitted that unless a proper application seeking prior permission to lead secondary evidence was filed by the petitioner, secondary evidence of the documents allegedly misplaced could not have been adduced by the petitioner. He submitted that the learned Special Metropolitan Magistrate was justified in rejecting the said application. 6. I have carefully considered the submissions. It : 4 : will be necessary to refer to the affidavit of Mr.Uday Patil, authorised representative of the petitioner filed by way of examination in chief. Paragraph No.9 of the said affidavit reads thus:- "9) I say that the accused in discharge of their liability issued a cheque bearing No.934012 dated 07th June 2001 for a sum of Rs.24,15,000/- (Rupees Twenty Four Lakh Fifteen Thousand Only) drawn on Global Trust Bank Limited, Fort Branch, Mumbai 400 001. I say that some time in June 2007 when my advocates asked for the original documents for filing affidavit of evidence pertaining to the above complaint, I was unable to locate the same due to shifting of the files from Bombay to New Bombay Godown in February 2007. When the original documents were not traceable inspite of a detailed search, I lodged a complaint with M.R.A Marg Police Station on 25th September 2007 in respect of the missing/loss original documents pertaining to the above mentioned criminal complaint. The Senior Inspector of M.R.A Marg Police Station has issued a certificate dated 25th September 2007 to this : 5 : effect. I am producing the original certificate dated 25th September 2007 in the compilation of documents. It may be taken on record and admitted in evidence and marked as Exhibit ‘P-2’. I crave leave of this Hon’ble Court to produce secondary evidence in respect of all the original documents pertaining to the above mentioned criminal complaint. I say that in any case the Criminal Revision Application No.598 of 2007 filed by the accused herein admitted the issuance of the cheque. I am producing a xerox copy of the said cheque. The xerox copy herein produced of the said cheque is the xerox which I have personally taken from the original cheque bearing No.934012 dated 07th June 2001 issued by the accused to the complainant at the time of filing of the complaint. I have seen the original cheque bearing No.934012 dated 07th June 2001 issued by the accused to the complainant. The said cheque has been signed by the accused. The xerox copy of the said cheque produced herein is the true and correct copy of the original cheque. It may be taken on record and admitted in evidence and marked as Exhibit ‘P-3’." : 6 : Thus, the petitioner was seeking to invoke clause (c) of Section 65 of the Indian Evidence Act, 1872. According to the counsel for the petitioner, a foundation was already laid in paragraph No.9 of affidavit in lieu of examination of chief for leading secondary evidence. 7. The law requires that a party seeking to adduce secondary evidence by invoking clause (c) of Section 65 of the Evidence Act has to prove that the original document has been either destroyed or lost or that the party, for any further reason, not arising from own default or neglect, is unable to produce the original in a reasonable time. If such a case is established on evidence, the Court can always consider the secondary evidence provided a copy of the original sought to be produced is proved to be a true copy of the original. 8. In any event, in the present case an application was made by the petitioner seeking permission to lead secondary evidence. In the said application reliance was placed on the averments made in the affidavit in lieu of examination in chief of the representative of the petitioner. There was no reason for the learned : 7 : trial Judge to reject the said application. By filing the said application the petitioner was not seeking to produce any other material or any other affidavit except the affidavit which was already filed. The petitioner was not seeking to produce any documents apart from the documents which were already tendered alongwith the said affidavit. Whether the petitioner has made out a case for leading secondary evidence or not could have been always considered by the learned trial Judge on merits. The reasons given for rejecting the application are hyper technical. 9. In the result, the impugned orders will have to be quashed and set aside with a direction to the trial Court to consider the prayer made by the petitioner for leading secondary evidence on the basis of the case made out in the affidavit in lieu of examination in chief. 10. Hence, I pass the following order: (i) The impugned orders are quashed and set aside. The learned trial Judge will consider the prayer made by the petitioner for leading secondary evidence in the light of assertions made in para 9 of the affidavit in lieu of : 8 : examination-in-chief. (ii) All contentions of the parties in that behalf are expressly kept open. (iii) Rule is partly made absolute in above terms with no orders as to costs. (iv) Parties and trial Court to act upon an authenticated copy of this order. (A.S.Oka,J)