Bhuvaneshwari vs Prashanth Kumar.

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NC: 2024:KHC:10782
WP No. 18433 of 2023

R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 15TH DAY OF MARCH, 2024

BEFORE

THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY

WRIT PETITION NO. 18433 OF 2023 (GM-RES)

BETWEEN:

BHUVANESHWARI
W/O BHARATH P
AGED ABOUT 33 YEARS
R/AT 3/53 KADYA HOUSE
MADAPPADY POST,
SULLIA TALUK - 572 218.
…PETITIONER
(BY SRI B.S. SACHIN, ADV.)
AND:

PRASHANTH KUMAR
S/O ANNU GOWDA
AGED ABOUT 32 YEARS
R/AT ANTHARA HOUSE
KADIRUDYAVARA VILLAGE
BELTHANGADY TALUK - 574 228.
…RESPONDENT
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA R/W 482 OF CR.PC PRAYING TO SET
ASIDE THE IMPUGNED ORDER DTD 29.12.2022 IN CC NO.343 OF
2021 ON THE FILE OF PRL. CIVIL JUDGE AND JMFC, BELTHANGADY,
DK DISTRICT PRODUCED AT ANNEXURE-A AND CONSEQUENTLY
ALLOW XEROX COPY OF UNREGISTERED AGREEMENT OF SALE DTD
23.3.2021 TO BE MARKED IN EVIDENCE AND FURTHER PASS SUCH
OTHER AND FURTHER RELIEFS.

THIS PETITION, COMING ON FOR PRELIMINARY HEARING,


THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER

1. Petitioner is before this Court under Article 227 of the

Constitution of India read with Section 482 of Cr.PC with a

prayer to set aside the order dated 29.12.2022 passed in

C.C.No.343/2021 pending before the Court of Prl. Civil Judge &

JMFC, Belthangady, D.K. District, wherein the prayer made by

the petitioner to mark the Photostat copy of an unregistered

agreement to sell dated 23.03.2021, was rejected.

2. Heard the learned Counsel for the petitioner.

3. Petitioner herein is being tried before the Trial Court in

C.C.No.343/2021 for the offence punishable under Section 138

of the Negotiable Instruments Act, 1881. During the course of

cross-examination of PW-1, learned Counsel for the

accused/petitioner herein had shown the Photostat copy of an

unregistered agreement to sell dated 23.03.2021 and PW-1 had

admitted his signature on the said document. The said

document is an insufficiently stamped document. Learned

Counsel for the accused had requested the Trial Court to permit

him to mark the said document. However, learned Counsel for

the complainant had opposed the same on the ground that it is


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a Photostat copy and also insufficiently stamped document. The

Trial Court vide the order impugned rejected the prayer made

by the accused to permit him to mark the Photostat copy of the

document on the ground that it does not come within the

purview of secondary evidence, and therefore, the same cannot

be marked. Being aggrieved by the said order, the accused is

before this Court.

4. Learned Counsel for the petitioner submits that since the

respondent/complainant has admitted his signature in the

document, the Trial Court ought to have permitted him to mark

the same. He submits that since the signature in the document

is admitted, there is no requirement for filing an application

seeking permission of the court to adduce secondary evidence.

He submits that even insufficiently stamped document can be

marked in criminal proceedings and even if the complainant

had raised an objection, the document could have been marked

subject to objections which could have been considered at the

final stage. In support of his arguments, he has placed reliance

on the judgments of the Hon'ble Supreme Court in the case of

BIPIN SHANTILAL PANCHAL VS STATE OF GUJARAT &

ANOTHER - AIR 2001 SC 1158, and DHANPAT VS SHEO RAM


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(DECEASED) THROUGH LRS. & OTHERS - (2020)0 AIR (SC)

2666.

5. The document which is sought to be marked in the

present case is an agreement for sale dated 23.03.2021 and

undisputedly the same is an insufficiently stamped document.

For the reason that the complainant had admitted his signature

on the said document, the accused has made a prayer before

the Trial Court to permit him to mark the Photostat copy of the

document.

6. In almost identical circumstances, the Hon'ble Supreme

Court in the case of H.SIDDIQUI (DEAD) BY LRS. VS

A.RAMALINGAM - (2011)4 SCC 240, wherein a prayer was

made to permit the party to mark the document on the ground

that the other side had admitted the signature on the Photostat

copy of the document, the Hon'ble Supreme Court in

paragraphs 12, 14 & 17 has observed as under:

"12. The provisions of Section 65 of the


1872 Act provide for permitting the parties to
adduce secondary evidence. However, such a
course is subject to a large number of limitations.
In a case where the original documents are not
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produced at any time, nor has any factual


foundation been laid for giving secondary
evidence, it is not permissible for the court to
allow a party to adduce secondary evidence. Thus,
secondary evidence relating to the contents of a
document is inadmissible, until the non-production
of the original is accounted for, so as to bring it
within one or other of the cases provided for in
the section. The secondary evidence must be
authenticated by foundational evidence that the
alleged copy is in fact a true copy of the original.
Mere admission of a document in evidence does
not amount to its proof. Therefore, the
documentary evidence is required to be proved in
accordance with law. The court has an obligation
to decide the question of admissibility of a
document in secondary evidence before making
endorsement thereon.
14. In our humble opinion, the trial court
could not proceed in such an unwarranted manner
for the reason that the respondent had merely
admitted his signature on the photocopy of the
power of attorney and did not admit the contents
thereof. More so, the court should have borne in
mind that admissibility of a document or contents
thereof may not necessarily lead to drawing any
inference unless the contents thereof have some
probative value.
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17. Therefore, it is the duty of the court to


examine whether the documents produced in the
court or contents thereof have any probative
value."

7. It is trite that secondary evidence must be authenticated

by factual foundation laid and in normal circumstances an

application is required to be filed before the court, after laying

down necessary foundation for permitting the party to adduce

secondary evidence. Secondary evidence can be introuduced if

primary evidence is not available and the reasons for its

absence is satisfactorily explained. The party is required to

explore all possibilities to secure the primary evidence and

inspite of the same, if primary evidence is not available, court

can permit adducing secondary evidence. The party is required

to explain the circumstances under which the copy of the

primary evidence was made and also about his custody of the

same. The party is also required to provide foundational

evidence to show that the alleged copy is a true copy of the

original.

8. In Dhanpat's case supra, the Hon'ble Supreme Court has

observed that an application for leading secondary evidence is


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not required if the foundation for the same is laid in the plaint

or evidence. But in the case on hand, there is no such

foundation available on record based on which permission can

be granted to adduce secondary evidence to the petitioner

herein.

9. In Bipin Shantilal Panchal's case supra, the Hon'ble

Supreme Court in a case where the Trial Court stopped further

trial on the ground that objection was raised by a party for

marking of certain documents, has observed in paragraph 14 as

under:

"14. When so recast, the practice which can


be a better substitute is this: Whenever an
objection is raised during evidence-taking stage
regarding the admissibility of any material or item
of oral evidence the trial court can make a note of
such objection and mark the objected document
tentatively as an exhibit in the case (or record the
objected part of the oral evidence) subject to such
objections to be decided at the last stage in the
final judgment. If the court finds at the final stage
that the objection so raised is sustainable the
Judge or Magistrate can keep such evidence
excluded from consideration. In our view there is
no illegality in adopting such a course. (However,
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we make it clear that if the objection relates to


deficiency of stamp duty of a document the court
has to decide the objection before proceeding
further. For all other objections the procedure
suggested above can be followed.)"

10. The Hon'ble Supreme Court in the aforesaid said case has

very clearly stated that if the document is insufficiently

stamped, the court has to decide the objections first before

proceeding further. In the said case, the Hon'ble Supreme

Court was not considering the question of permitting the party

to mark a Photostat copy of the document in the absence of

necessary foundation for granting such permission.

11. In the case of VIJAY VS UNION OF INDIA & OTHERS -

2023 SCC OnLine SC 1585, the Hon'ble Supreme Court in

paragrapohs 34 & 35 has observed as under:

"34. After perusing various judgments of


this Court, we can deduce the following principles
relevant for examining the admissibility of
secondary evidence:

33.1 Law requires the best evidence to be


given first, that is, primary evidence.
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33.2 Section 63 of the Evidence Act


provides a list of the kinds of documents that can
be produced as secondary evidence, which is
admissible only in the absence of primary
evidence.

33.3 If the original document is available, it


has to be produced and proved in the manner
prescribed for primary evidence. So long as the
best evidence is within the possession or can be
produced or can be reached, no inferior proof
could be given.

33.4 A party must endeavor to adduce


primary evidence of the contents, and only in
exceptional cases will secondary evidence be
admissible. The exceptions are designed to
provide relief when a party is genuinely unable to
produce the original through no fault of that party.

33.5 When the non-availability of a


document is sufficiently and properly explained,
then the secondary evidence can be allowed.

33.6 Secondary evidence could be given


when the party cannot produce the original
document for any reason not arising from his
default or neglect.

33.7 When the copies are produced in the


absence of the original document, they become
good secondary evidence. Still, there must be
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foundational evidence that the alleged copy is a


true copy of the original.

33.8 Before producing secondary evidence


of the contents of a document, the non-production
of the original must be accounted for in a manner
that can bring it within one or other of the cases
provided for in the section.

33.9 Mere production and marking of a


document as an exhibit by the Court cannot be
held to be due proof of its contents. It has to be
proved in accordance with the law.

35. A reading of Section 65(a) of the


Evidence Act displays the following:

a. Secondary evidence can be presented as


a substitute when the original document/primary
evidence is in the possession of the opposing
party or held by a third party;

b. Such a person refuses to produce the


document even after due notice,

c. It must be ensured that the alleged copy


is a true copy of the original.

12. In the aforesaid judgment, the Hon'ble Supreme Court

has observed that if a document that is required to be

stamped, is not sufficiently stamped, then the position of law is


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well settled that a copy of such document as secondary

evidence cannot be adduced.

13. Under the circumstances, I am of the opinion that the

Trial Court was fully justified in rejecting the prayer of the

petitioner to permit him to mark the Photostat copy of the

document merely for the reason that the complainant had

admitted his signature in the said document.

14. For the reasons aforestated, I do not find any good

ground to interfere with the order passed by the Trial Court.

Accordingly, petition is dismissed.

Sd/-
JUDGE

KK

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