- (1.) CHALLENGE in this Criminal Misc. Petition is to the order dated 12th May, 2009, whereby the learned Additional Chief Judicial Magistrate, CBI Cases, Jodhpur permitted the complainant non petitioner no.2 Ram Arora to file the photostat copies of certain documents as secondary evidence.
(2.) SHORN of unnecessary details, the facts of the case are that one complaint for the offence under Section 138 of Negotiable Instrument Act came to be filed by the non petitioner no.2-complainant Ram Arora against the accused petitioner Abdul Mutlib in the court of ACJM, CBI Cases, Jodhpur. During the trial, the complainant Ram Arora filed photostat copies of the bills in the court imploring that this photostat copy should be treated as secondary evidence under Section 65 of Indian Evidence Act. The trial court after hearing the parties allowed the prayer and permitted the complainant to file the photostat copies of the bills as secondary evidence. Having heard the learned counsel for the parties and carefully scanned the relevant material on record including the provisions of law, a very short question springing for consideration in the instant petition is as to whether the photostat copy of a carbon copy of a bill is a secondary evidence within the meaning of Secondary Evidence defined under Section 63 of Indian Evidence Act? At the very out-set, it is relevant to record that the said photostat copies are found to be copies of carbon copies of bills. It is stated that there was a partnership firm in the name and style of 'The Watches of the World'. The petitioner accused purchased watches and made the payment through cheque. The original bill was given to the buyer and carbon copy of the bills remained in the Bill Book. This partnership firm later-on got dissolved, but the bill book probably either was left with the partner of the firm when the account was tallied or it is misplaced. However, its production was not possible. The photostat copies of the carbon copies are genuine documents, the genuineness of which cannot be questioned at this stage. Learned counsel for the petitioner canvassed that a photostat copy of a carbon copy, if not compared with the carbon copy does not fall within the definition of Secondary Evidence under Section 63 of Indian Evidence Act. Sub-section (2) of Section 63 of Indian Evidence Act mandates that copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies, are the secondary evidence. In the instant case, the photostat copies are not compared with the carbon copies, hence, they are not admissible as secondary evidence. He cited two judgments in support thereof.
(3.) E Converso, the learned counsel for the non petitioner no.2 complainant contended that the impugned order rendered by the trial court is just and proper, which warrants no intervention for the simple reason that the complainant before dissolution of the partnership firm got a photostat copy done from the carbon copy of the bill, but since that bill book is not traceable, there is no ground to cast any doubt upon their genuineness. Hence, in view thereof, this criminal misc. petition deserves to be dismissed. In the case of Raja Mahadeva Royal Y. B. Versus Raja Virabasava Chikka Royal and Other reported in AIR (35) 1948 Privy Council 114, the Privy Council albeit adjudged that the documents being merely copies of copies, the originals not having been satisfactorily accounted for, were inadmissible in evidence and they need to be rejected, but quoting the famous dictum of Lord Mansfield, the Privy Council also observed as under:- "famous dictum of Lord Mansfield that it is safer to admit a document the legality and the admissibility of which is in question rather than to shut it out from the evidence." It is undeniably and un-disputably a settled proposition of law that a photostat copy of the copy of a document, the original not having been satisfactorily accounted for, is not admissible in evidence and such evidence should be rejected. ;