The present Applicant Original accused has filed the aforesaid application for secondary evidence for accepting the xerox copy of the cheque. Therefore, the issue is whether the xerox copy of the cheque which has been accepted as a secondary evidence is justified or not.
The impugned order in
Revision Application No.28 of 2011 has reflected in detail, discussion about the facts. It is required to be mentioned that the complainant had given a notice Exhibit 54 to the accused to produce original cheque and also a notice under Section 66 of the Evidence Act. Thereafter, the original accused was directed to produce the same within 15 days. The Applicant accused declined to produce the same.
It is in this
background the complainant had produced the xerox copy, which is sought to be challenged that the court has considered the secondary evidence and the order passed by the learned Judicial Magistrate, Dahod, which has been confirmed in the impugned order passed in Criminal Revision Application No.28 of 2011 by the Sessions Court is erroneous.
As could be seen, there is a reference to the memo produced with an endorsement fund insufficient. The deposition of the Bank Officer has also been recorded. The order also refers to the provisions of Section 66 of the Evidence Act and it has been recorded that the xerox copy of the cheque was produced at mark 23/1 prepared by mechanical process. Further, as the original accused, with whom the cheque was lying, had declined to produce the xerox copy of the cheque, has been accepted as a secondary evidence in light of the statutory provision of Section 66 of the Evidence Act, clearly referring to this aspect. Therefore, even after giving the notice as required under the Evidence Act, the original is not produced by the party, the secondary evidence could be relied upon.1
Gujarat High Court
Omprakash Chaudhary, Prop Of ... vs Goverdhan Automobiles on 4 February, 2013
Bench: Rajesh H.Shukla