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2018 (7) TMI 2188 - HC - Indian LawsValidity of admission of the documents - xerox copies of the documents or original documents of the documents - necessity of notice mandated by Section 66 of the Indian Evidence Act - failure of the respondent to seek permission of the court, for filing documents, at a alter stage of filing the plaint - power under Article 227 of the Constitution of India. Whether the xerox copies of the documents would amount to secondary evidence? - HELD THAT:- The Court observed that mere allowing the complainant to mark the photostat copy of the document does not mean accepting its contents to be true; the burden is on the complainant to prove the contents of the cheque; it is only after the complainant discharges his evidentiary burden, that the onus shifts to the 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 lose the opportunity to send the document to FSL, the complainant cannot be restrained from establishing his case by producing the secondary evidence. The Court also considered the cases relied upon by the petitioners therein and distinguished them on facts, while dismissing the criminal petition - it can be understood that the Courts have been permitting admission of xerox copies into evidence, but the nature of the documents and the probative value of the documents and possibilities of tampering the documents have to be taken into consideration, before permitting xerox copies into evidence. Whether the original documents of the documents, sought to be admitted, are proved as lost? - HELD THAT:- The respondent filed his affidavit and affirms that the documents were lost while the office was being shifted and the case files were being transferred from one team to another - We are also inclined to accept the above approach adopted by this Court and consider the sworn affidavit of the respondent as sufficient to prove the fact of loss of originals. Whether the notice mandated by Section 66 of the Indian Evidence Act is necessary before admitting the documents? - HELD THAT:- The notice under Section 66 of the Act is necessary when the original is shown to be in possession of the person against whom the document is sought to be proved or is in possession of any person out of reach or not subject to the process of the Court or of any person who is legally bound to produce it. In order to seek dispensation of notice under Section 66 of the Act, the respondent should succeed in proving that the original document is in his own possession and is not in possession of a person against whom it is sought to be proved or is not in possession of any person out of reach or not subject to the process of the Court or any person legally bound to produce it. The documents, sought to be admitted in this case are of different categories - the notice under Section 66 of the Act is required to be given to the party in whose possession the original or the copies of the documents are, for production of such copies. Whether the failure of the respondent to seek permission of the court, for filing documents, at a alter stage of filing the plaint, would make the petition liable for dismissal? - HELD THAT:- The respondent, by this petition, only seeks permission to adduce secondary evidence of certain documents. Leave required under Order 7 Rule 14 of CPC can, if required, be obtained after the permission to adduce secondary evidence, is accorded. The impugned order, hence, need not be set aside on that count. Whether the power under Article 227 of the Constitution of India need to be exercised in this case? - HELD THAT:- This revision is under Article 227 of the Constitution of India. The maintainability of this petition is not disputed by both the counsel. But the scope of entertainment of such petition needs to be examined. There is no quarrel that the law is well settled that the power under Article 227 can be exercised only in exceptional cases i.e. to keep the Courts within the bounds of law, but not to merely correct the errors - Section 65 of the Act deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. The xerox copies of the documents, the originals of which are shown to be with the respondent and which are shown to have been lost, can be received in evidence. Both the parties agree upon the documents at Sl. Nos. 1, 3, 5 and 8 to 12, to be the documents, the originals of which would be with the respondent. Hence, the order of the Court below to the extent of admitting those documents can be sustained - the said documents cannot be permitted to be taken in evidence without following the procedure prescribed under Section 65(a) of the Act. The documents at Sl. Nos. 20 and 32 are the tables prepared by the petitioner and the same cannot be considered as documents also. Hence, they cannot be admitted in evidence. The civil revision petition is allowed in part.
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