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2015 (4) TMI 1317 - HYDERABAD HIGH COURTDishonor of Cheque - adducing the photostat copy of cheque as secondary evidence - the complainant did not establish the facts that the cheque sought to be marked is the photostat copy of the original cheque and that the original cheque was lost - Section 65 of the Evidence Act - HELD THAT:- Since the trial Court will not number the criminal case without production of original cheque at the time of filing the case, it can be presumed that original cheque must have been filed into Court. Further, as per the observation of learned Metropolitan Sessions Judge, it was not the contention of the accused before him that the original cheque was not filed at all into Court. So, by this count also it can be held that original cheque was indeed filed into Court. Then, at the time of withdrawing original cheque concerned Court staff will return the original cheque only on comparison of original with photostat copy. Therefore, the photostat copy now available in the Court can be presumed as exact copy of original cheque. Then loss of cheque is concerned, no doubt, except the affidavit of complainant he has not produced any supporting evidence or affidavit of his previous counsel. In the considered view of this Court, that is not the big lapse to reject his request. As rightly argued by learned counsel for 2nd respondent/complainant the document sought to be produced is not brought forth all of a sudden, but is available in the Court itself. Therefore, the Courts below were right in permitting him to adduce the secondary evidence. Therefore, the contention of the accused that original cheque was not filed into Court and its loss was not proved cannot be appreciated. The next contention of the petitioners/accused is that photostat copy of the cheque is easily tamperable by mechanical process and if the same is allowed to be marked as exhibit, accused may not be able to send the document for comparison to FSL to establish their defence plea - HELD THAT:- The burden is on the complainant to prove the contents of the cheque. It is only after the complainant discharges his evidentiary burden then the onus shifts to accused. The accused can establish their defence by various other means which are legally permissible to them. So, merely on the apprehension that the accused will loose the opportunity to send the document to FSL, the complainant cannot be restrained from establishing his case by producing the secondary evidence. Therefore, this contention also cannot be accepted. There are no merits in the Criminal Petition - petition dismissed.
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