HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL REVISION CASE No.1924 of 2003 ORDER: This Criminal Revision Case is directed against the order passed by the II Additional Judicial First Class Magistrate, Nellore, in Crl.MP.No.4620 of 2003 in C.C.No.284 of 2001, dated 28.11.2003, whereby the petition filed by the first respondent, under Sections 63 and 65 of the Indian Evidence Act, 1872 (for short ‘Act 1 of 1872’), was allowed. Brief facts of the case are as follows: The petitioner herein is the accused. Pursuant to the business transactions between the petitioner and the first respondent, a cheque bearing No.509701 dated 06.12.2000 for Rs.6,48,469/- was issued by the petitioner to the first respondent and when the same was presented for realisation, it was returned with an endorsement “payment stopped”. After following the procedure prescribed under Sections 138 and 142 of the Negotiable Instruments Act, 1881 (for short ‘the Act’), a private complaint has been filed and the same was numbered as C.C.No.284 of 2001. When the matter was ripe for trial, the first respondent filed the present petition under Sections 63 and 65 of Act 1 of 1872 to dispense with the production of the original cheque and allow to mark the Xerox copy of the same cheque, which had already been filed into the Court, as an exhibit and allow them to proceed with the trial. The petition was opposed by the petitioner-accused by filing his counter affidavit. The learned Magistrate, by order dated 28.11.2003, in Crl.MP.No.4620 of 2003, negatived the contention of the petitioner and the first respondent was permitted to mark the Xerox copy of the cheque in question as an exhibit. Learned Counsel for the petitioner contended that though the petitioner had issued cheque to the first respondent, he never borrowed the cheque amount and the cheque in question was issued only as a security by making certain interpolations. He further contended that as the original cheque has been presented before the bank, it is very much available and is required to establish the fact that there are interpolations and, therefore, the Court below ought not have permitted the first respondent to get the Xerox copy of the cheque that had already been filed into the Court in C.C.No.284 of 2001 marked as an exhibit. Despite service of notice on the first respondent, it has not chosen to appear either in person or through counsel. I am totally in agreement with the contention put forth by the learned Counsel for the petitioner. However, in normal circumstances, the original document is very much required and if the same is lost or destroyed, as provided for under Section 65(c) of Act 1 of 1872, the Xerox copy can also be marked as secondary evidence. In the case on hand, in fact, the original cheque was filed into the Court along with the complaint and only after due verification of the documents, the case was taken on file and numbered as C.C.No.284 of 2001. Subsequently, as per the circulars issued by this Court on various occasions, the original cheque was returned to the first respondent by substituting the same with the Xerox copy. While returning the original cheque bearing No. 509701 to the first respondent, the same was verified by the office and was satisfied that the Xerox copy as well as the original cheque were one and the same. When the mater was ripe for trial, the first respondent filed the present petition to get the Xerox copy of the cheque in question marked as an exhibit alleging that subsequent to the return of the original cheque, the same was lost and, therefore, it is not in a position to produce the same. In my considered view, the reason stated by the first respondent appears to be true because the original cheque was produced at the time of filing the complaint in C.C.No.284 of 2001. If the first respondent has any dishonest intention, it would not have filed the original cheque even at the time of filing the complaint. As per Section 65(c) of Act 1 of 1872, whenever the petitioner establishes that the original one is lost or destroyed, the Xerox copy of the original can be accepted as secondary evidence. Hence, the Court below was justified in accepting the Xerox copy of the original cheque marked as an exhibit as secondary evidence. Therefore, I see no merits in this revision. Accordingly, the Criminal Revision Case is dismissed. GOPALA KRISHNA TAMADA, J Date:07.12.2010 usd