Basic requirement for application for secondary evidence
On 20.9.2005 when the process was issued against the accused, complainant had made an application for permission to lead secondary evidence. Though the application is not happily worded, complainant wanted to state that original cheque was misplaced on the 10
way to office from court and that police report had been lodged as also an affidavit was sworn in to that effect. Said application was not supported by affidavit and it was signed by the counsel for complainant. Learned Special Judge very surprisingly allowed the application to lead secondary evidence by a single-word order "Granted". The secondary evidence can be permitted to be adduced only after non-production of primary evidence is satisfactorily accounted for. Secondary evidence may be given of the existence, condition or contents of a document, inter-alia, when the original has been destroyed or lost. It is settled position of law as pronounced by the Apex Court in State of Rajasthan v. Khemraj reported in AIR 2000 SC 1759 that application for the production of secondary evidence must give full details and must be supported by a proper affidavit. In the present case, application preferred by the complainant Corporation, purportedly under Section 65 of the Evidence Act, was not supported by affidavit; it did not give full particulars and was under the signature of a counsel appearing for complainant. Moreover, when learned Special Judge issued process against accused on the same day when the application was filed i.e. on 20.9.2005, he could have waited for appearance of the accused in order to afford them an opportunity to give say or contest the application instead of allowing the same hastily or ex- parte on the very day when the application was moved.
Bombay High Court
Nagpur Bench : Nagpur vs Deshmukh, Resident Of ... on 6 July, 2012
Bench: A.P. Bhangale
