@JUDGMENTTAG-ORDER
A.N. Venugopala Gowda, J.@mdashRespondent 1 is the Plaintiff. Petitioner, Respondents 2 and 3 are the Defendants, in a suit for recovery of money. By filing written statement suit has been contested. Issues having been framed, the trial has commenced. During the course of examination of P.W. 1, a certified copy of the cheque was sought to be exhibited, to which an objection was raised by the learned Counsel for the Defendants 1 and 2. The further examination was deferred and the objection was heard. The point raised for consideration was, whether the certified copy of the cheque in question can be marked as exhibit on behalf of the Plaintiff?
2. The Plaintiff did not produce the original of the cheque, whereas, he produced a certified copy issued by the Court. The objection raised was overruled and the certified copy was permitted to be marked as exhibit on behalf of the Plaintiff subject to proving of its contents. Said order has been questioned in this writ petition.
3. Sri Irshad Ahmed K, learned Advocate appearing for the Petitioner contended that, the objection was particularly with regard to cheque being forged and tampered and in the circumstances, the original alone should be produced and marked and not a certified copy and in overruling the objection, the Trial Court has committed irrationality and illegality.
4. Sri H.S. Prashanth, learned Counsel appearing for the 1st Respondent, on the other hand contended that, the original of the cheque is in the Criminal Court, wherefrom the certified copy has been obtained and the law does not lay a bar to mark the certified copy as an exhibit, since production of secondary evidence is permissible.
5. The Trial Court has held that, the question as to whether the cheque is misused or forged has to be ascertained after a full-fledged trial and the document sought to be marked being a certified copy issued by a Court of law, can be marked as an exhibit.
6. Having heard the learned Counsel, I have perused the writ papers.
7. Chapter v. of the Indian Evidence Act, 1872 (for short, the Act''), deals with documentary evidence. Section 61 thereof lays down that:
61. Proof of contents of documents.-The contents of documents may be proved either by primary or by secondary evidence.
As per Section 62 of the Act, primary evidence means the document itself produced for the inspection of the Court. Section 63 categorizes five kinds of secondary evidence. Section 64 lays down that documents must be proved by primary evidence except in the cases mentioned in the following sections. However, Clause (e) of Section 65, which enumerates the cases in which secondary evidence relating to documents may be given, carves out an exception to the extent that when the original document is a "public document" secondary evidence is admissible even though the original document is still in existence and available.
8. Section 74 of the Act defines what are known as "public documents". As per Section 75 of the Indian Evidence Act, all documents other than those stated in Section 74 are private documents. From this point of view, the document in question is certainly a private document.
9. Secondary evidence, as is well-settled, as a general rule, is admissible only in the absence of primary evidence. If the original cheque itself is found to be inadmissible on account of the nature of objections raised, the party is not entitled to introduce secondary evidence of its contents. Section 63 declares that secondary evidence may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in the said section is exhaustive which declares that secondary evidence ''means and includes'' and then follows the five kinds of secondary evidence. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of the document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring within one or the other cases provided in the section. In this connection, it is necessary to notice the decision of the Apex Court in the case of
According to Clause (a) of Section 65 of the Indian Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it.
10. The admitted fact in the present case is that the original is in the Criminal Court. Only when conditions prescribed in Section 65 are satisfied, the document can be admitted as secondary evidence. Since Clause (a) of Section 65 has not been satisfied, the objection raised being tenable, ought to have been accepted and upheld. In not doing so, the Trial Court has committed an irrational act. There is misdirection on the part of the Trial Court. The impugned order does suffer from the infirmity warranting interference.
In the result, the writ petition stands allowed and the impugned order stands quashed.
However, it is open to the 1st Respondent/Plaintiff to either produce the primary evidence or secondary evidence as the case may be, by following the procedure prescribed under law.
No costs.
