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2024 (2) TMI 1244 - BOMBAY HIGH COURTDishonour of Cheque - Rule of evidence - acquittal of accused - Proof of liability - service of demand notice - complainant company has proved their representative C.W. No. 1 was authorised by them to give evidence before the court or not - trial court has committed wrong in discarding the oral and documentary evidence or not - HELD THAT:- It is a rule of evidence that a document has to be proved by producing the original that is primary evidence. It is also true that a document can be proved by way of secondary evidence. There are rules for producing a secondary evidence. It is laid down in Section 65 of the Indian Evidence Act. If the conditions therein are fulfilled the party can rely upon secondary evidence. So can it be said that the complainant was justified in relying upon certified true copy of board resolution instead of producing the original minutes book? When the complainant has averred in the affidavit about production of the original and prayed for return of document, I think the complainant has fulfilled its responsibilities of proving the same - it was necessary for the accused at least to point out during the cross-examination that their originals are not produced. He need not call upon the complainant’s witness to produce their original, he could have certainly asked the complainant’s witness that the original minutes book is not produced. This was not put during the cross-examination. So that was the best opportunity for the accused to point out that lacuna. In fact, he allowed the complainant to go on with the case on the basis of the line of cross-examination he has adopted. Ultimately, the trial is conducted on the basis of what case you are putting. When it comes to the accused it is by way of cross-examination. When these questions were not put to complainant at a subsequent stage, you cannot put him to surprise by raising that plea subsequently at the time or arguments. This objection is not of such a kind which goes to the root of the matter. This objection is about mode of proof of the document. By way of his conduct, the Respondent – Accused was not justified in raising this plea at subsequent stage. Certainly, the findings can be considered as perverse. Because the trial court has unnecessarily observed about non-production of the original minutes book while writing the judgment. The observation is erroneous and unwarranted in the set of facts and circumstances mentioned above. When the witness has produced the original at some point of time, it was not objected throughout the trial, then the learned trial judge was wrong in discarding the true copy of the resolution simply for the reason that original minutes book is not produced. This is hyper-technical view and needs to be corrected. Thus, it is held that the complainant has proved that the Respondent – Accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act. Hence, judgment of acquittal needs to be set aside and Respondent – Accused needs to be convicted for offence under Section 138 of the Negotiable Instruments Act - Respondent – Accused is sentenced to pay a fine of Rs. 1,00,00,000/-. Appeal allowed.
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