R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO.472 OF 2016 Between:
Sri S Sudarshan S/o S Krishna Murthy Aged about 48 years R/at No.17/A, 2nd Cross Nanjappa Layout Behind Government School Jaraganahalli J.P. Nagar Post Bangalore - 560078.
(By Sri K .T. Vasudeva Iyengar - Advocate) ... Petitioner And:
Sri G .M. Sunil Kumar S/o G.V. Muralidhar Rao Aged about 35 years S/o B.S. Ramesh No.1584, Ward No.22 H.S. Garden Kelaginia Thotagalu Chikkaballapura Taluk And District - Pin - 563125.
(By Sri. Appi Reddy – Advocate (Absent)) ... Respondent This Criminal Revision Petition is filed under Section 397 r/w Section 401 of the Code of Criminal Procedure, praying to, set aside the impugned orders dated 05.03.2016 in C.C.No.3202/2014 on the file of the XVI Addl. C.M.M., Bangalore and permit the complainant to lead further evidence and mark the one and only xerox copy of the postal acknowledgment receipt of legal notice received by the accused.
This Criminal Revision Petition coming on for Hearing, this day, the Court made the following:
O R D E R Heard the learned counsel for the petitioner - complainant. But the learned counsel for the respondent - accused is not present. Therefore, it is taken that there are no arguments on the part of the respondent – accused in C.C.No.3202/2014.
2. This petition is filed by the petitioner – complainant challenging the order dated 5.3.2016 passed by the Trial Court dismissing the applications filed under Section 311 of Cr.P.C. and Section 63 of the Evidence Act in C.C.No.3202/2014.
3. The factual matrix of the petition is that the petitioner – complainant had initiated proceedings against the accused for the offence punishable under Section 138 of the NI Act in C.C.No.3202/2014. In the said C.C.No.3202/2014, the complainant - petitioner filed an application under Section 311 Cr.P.C. and Section 63 of the Evidence Act to recall PW-1 for the purpose of marking photocopy of the postal acknowledgement. It was contended by the complainant that he had already adduced his evidence by examining himself as PW.1 and got marked documents. When he produced the photocopy of the postal acknowledgement in order to show the service of the legal notice on the accused, the same had been refused to be marked in evidence since the original was not produced. He had contended before the court below that he has issued legal notice to the accused through RPAD which was duly acknowledged, but however, he lost the original of the postal receipt and acknowledgement in order to prove the receipt of legal notice by the accused. He had also filed a sworn affidavit in compliance of Section 63 of the Evidence Act stating that he had lost the original postal receipt and acknowledgment. Despite of this contention taken by the complainant by filing an application under Section 311 Cr.P.C. read with Section 63 of the Indian Evidence Act, the Trial Court has dismissed the said application, causing serious prejudice to the petitioner. Hence, the petitioner has preferred this criminal revision petition.
4. It is the contention of the learned counsel for the petitioner that though he had taken a stand in his application under Section 63 of the Indian Evidence Act as well as in the affidavit to the effect that he had lost the original postal receipt and hence he had produced the xerox copy of the receipt to prove the fact that the respondent has in fact received the legal notice dated 19.02.2013, the court below has erred in rejecting the application of the petitioner, which has caused serious prejudice to the petitioner.
Therefore, the learned counsel prays that this criminal revision petition be allowed and the order passed by the Trial Court rejecting the application filed by the complainant under Section 311 Cr.P.C. and Section 63 of the Indian Evidence Act, 1872 be set aside and consequently permit him to produce the said document in evidence.
5. As already stated, despite of an opportunity given to the learned counsel for the respondent - accused, he has not come forward to address arguments. Therefore, it is taken that there are no arguments on the part of the respondent – accused in C.C.No.3202/2014.
6. On a careful consideration of the contentions advanced by the learned counsel for the petitioner – complainant as well as having regard to the material on record, it is gathered that the respondent - accused is required to face trial for the offences under Section 138 of the NI Act. The petitioner - complainant has initiated a case against the accused in order to prove the guilt of the accused where the accused issued a cheque for a sum of Rs.3,60,000/- and the cheque when presented, was returned with an endorsement saying ‘account closed’. Subsequently, notice was issued by the complainant calling upon the accused to pay the cheque amount. Accordingly, the requirement under Section 138 of the NI Act has been complied with and proceedings has been initiated against the accused. But since the postal receipt and acknowledgements for having served notice the accused have been lost by the complainant, he has made an application before the court below to produce the photocopy of the said postal receipt and acknowledgement. Though the photocopy of the document cannot be considered as ‘primary evidence’ under Section 62 of the Indian Evidence Act or as ‘secondary evidence’ under Section 63 of the Indian Evidence Act, however, since there is photocopy of the document, it is inferred that the original document has been photocopied. Marking of a document in evidence is the domain of the Trial Court and appreciation of the oral and documentary evidence as well is the domain of the Trial Court. Photocopy of the postal receipt and acknowledgement is said to have been produced by the complainant by filing an application under Section 311 Cr.P.C. Therefore, it is deemed proper to consider the grounds urged in this petition by interfering with the impugned order passed by the Trial Court in C.C.No.3202/2014 rejecting the application filed by the complainant. If the said application is not allowed and if the photocopy of the receipt and acknowledgement is not allowed to be produced, it would result in a miscarriage of justice and prejudice the requirement of oral and documentary evidence to prove the offence under Section 138 of the NI Act.
7. Therefore, the Criminal Revision Petition is allowed. Application filed by PW1 – complainant under Section 311 Cr.P.C. and Section 63 of the Indian Evidence Act is allowed. The matter is remanded to the Trial Court with a direction to allow PW1 to produce photocopy of the postal receipt and acknowledgement for marking of documents on his side in order to prove the guilt of the accused.
Since it is a case of the year 2014, the Trial Court shall fix the case for trial by securing PW1 and permit him to produce the postal receipt and acknowledgement even though it is a photocopy and mark the copy for the purpose of reference. Further, the Trial Court is directed to expedite the case by giving an opportunity to the defence counsel as well to cross-examine, in accordance with law.
Sd/-
JUDGE KS