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TMI Blog2020 (1) TMI 934X X X X Extracts X X X X X X X X Extracts X X X X ..... lope has been misplaced. The aforesaid documents were submitted with the complaint and after comparison from the copies, the documents were returned to the counsel for complainant. The documents were in possession of the counsel but after several efforts, the counsel could not trace out the postal receipt and the written envelope. The documents have been misplaced in the various files of the office of counsel. Therefore, the complainant seeks permission to prove the aforesaid postal receipt and written envelope by the help of secondary evidence. 4. Accused/petitioners filed the reply before the trial court and the trial court/JMFC dismissed that application on 23.4.2019. Against the aforesaid order passed in all 4 cases, the complainant preferred 4 criminal cases bearing Criminal Revision Nos.77/2019, 78/2019, 79/2019 and 80/2019 before the Sessions Court. Fifth Additional Sessions Judge, Katni vide order dated 28.8.2019 allowed all revisions and set aside the order passed by the Judicial Magistrate First Class, Katni. The Court granted the permission under section 65 of the Evidence Act to produce the secondary evidence of aforesaid 2 documents. 5. It is submitted by the counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isionist, does not appear to have passed the test of correctness and proprietary and therefore, the same is not sustainable in law and hence, the Impugned Order is set aside by allowing the present Revision Petition to allow the Revisionist/Complainant to adduce secondary evidence qua the postal receipt and returned postal envelop;" 8. Counsel for petitioners cited Rakesh Mohindra Vs. Anita Beri & Ors., 2016 (II) MPJR (SC) 137. In this case the Supreme Court observed that a document is required to be proved by the primary evidence and in the absence of primary evidence, the document can be proved by secondary evidence. The pre-condition for leading secondary evidence is that the party could not produce the document inspite of the best efforts and its production is beyond control of the party. Before adducing the secondary evidence, the party has to lay factual foundation to establish the right to give secondary evidence. The Court said in Para 17 :- "17. The pre-conditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same which is beyond their control. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Rita Samual Vs. B.K.Kurmi, 2014 (2) DCR 518=2014 STPL 4998 (MP) (Judgment dated 16.1.2014 passed in Criminal Revision No.1464/2012), the complaint was initially filed without annexing the original cheque and some documents. At the stage of recording of the evidence, the application under section 65 of Evidence Act was filed. It was stated that the complainant had given all the original documents including the cheque, in dispute, to his counsel but subsequently such counsel had neither filed such documents in the Court nor returned to the respondent and inspite of making efforts, such original documents were not given by the counsel to the complainant, then he made complaint against the Advocate to the State Bar Council and the Bar Council suspended the licence of Advocate for practicing for the period of 5 years. In the aforesaid situation, the Court gave the permission to adduce the secondary evidence. The Court observed in Para 4 and 5:- "4. In the available circumstances there was no any other option with the respondent except to prove his case on the basis of the secondary evidence and for which he has filed the impugned application, hence it is held that the same has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the instrument would most properly be found, but not necessarily in every possible place; nor need the search have been made recently or for the purpose of the cause." 8. Thus, one has to establish that the photocopy is of a document which actually existed. For this purpose, there must be sufficient proof of the search for the original to render secondary evidence admissible. It must be established that the party has exhausted all resources and means in search of the documents which were available to him. In the present case, the petitioner has not made any efforts to obtain certified copy of the resolution dated 12.6.2004 from the Gram Panchayat. No copy under the Right to Information Act, 2005 is also prayed for. No complaint regarding alleged loss of said document to the higher authorities is placed on record." 13. Therefore, it appears from the aforesaid case law that the Court should be liberal at the time of granting the permission of adducing the secondary evidence. If it is found that the refusal of aforesaid permission would collapse the entire case of the complainant, then the Court should permit the production of secondary evidence. 14. In the present case, the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report has not been received within 30 days from the sending of the aforesaid article. Therefore, postal receipt is necessary to prove the sending of notice to the accused. It is also appeared from the record that the accused did not pay any amount to the complainant even after filing the complaint and after receiving the notice of complaint. Therefore, proof of refusal of notice is a mere formality. 16. Even then the revisional Court also protected the right of petitioners and said in Para 15 as under:- "15. Before parting with the case, it would be apt to add that at the time of adducing the secondary evidence by the Revisionist on the above mentioned any of the documents, the nonapplicants/ accused herein shall be at liberty to cross-examine the every witness of the respondent regarding existence and the custody of the original documents and why such intimation was given to the court at belated stage. They shall also be at liberty to challenge the documents and its execution on the basis of the available circumstances. Besides this, they shall be at liberty to adduce the evidence in this regard on their own behalf in support of their defence. But the Ld.Trial court shall cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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