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2021 (6) TMI 776 - CHHATTISGARH HIGH COURTDishonor of Cheque - photocopy of the cheque can be taken as secondary evidence as provided under Section 65 of the Evidence Act or not - Whether, writ petition (criminal) assailing legality and propriety of the order passed by the Revisional Court is maintainable? - HELD THAT:- Learned counsel while refuting the said contention would submit that the power exercised by this Court under Article 226 of the Constitution of India and under Section 482 Cr.P.C. are one and the same as both the powers have to be exercised rarely and sparingly to prevent abuse of process of any court or to secure the ends of justice, therefore, the writ petition (criminal) assailing the orders passed by the learned Session Judge as well as learned Magistrate First Class is maintainable - the writ petition (criminal) is maintainable assailing the order passed by the learned Sessions Judge in the criminal revision. Therefore, issue number 1 raised by the respondent goes against him and this Court finds that the writ petition (criminal) is maintainable. Whether, the photocopy of the document can be taken as secondary evidence as provided under Section 65 of the Evidence Act? - HELD THAT:- From perusal of Clause 2 and 3 of the Section 63 of the Indian Evidence Act it can be said that by some mechanical process copy of the document may be obtained but the petitioner shall ensure its correctness and accuracy by sufficient placing materials on record. It is pertinent to mention here that there is no whisper in the application filed by petitioner before Trial Court which shall indicate that it has been obtained by mechanical process to ensure its accuracy - In the present application since there is no averment under Section 65 of the Indian Evidence Act that photocopy was compared with the original and it was accurate photocopy of the original and further have not filed with affidavit with regard to person who has obtained the said photocopy. From record it is difficult to hold the hallmark, authenticity and accuracy of the photocopy. The petitioner failed to explain as to what were the circumstances under which photocopy was prepared and who was in possession of the original document at the time of photocopy being prepared. In view of these circumstances, this Court comes to conclusion that no foundation has been laid for leading secondary evidence in the shape of photocopy. Thus, it can be established that photocopy is neither primary evidence nor secondary evidence because the parties are required to prove whether the photocopy taken is the exact copy of the original., therefore, in view of Section 65 of the Indian Evidence Act the Revisional Court as well as the Judicial Magistrate First Class have not committed any error while rejecting the application. The learned Judicial Magistrate First Class and learned Revisional Court have not committed any illegality or irregularities while rejecting the application for permission to lead secondary evidence which warrants interference by this Court exercising power under Article 226 of the Constitution of India - Petition dismissed.
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