IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No. 3828 OF 2016 BETWEEN:
State by Madikeri Town Police Station, Represented by the State Public Prosecutor, High Court Building, Bengaluru-560 0 01 (By Sri Dildar Shiralli, H.C.G.P.) AND:
G.G. Hemanthkumar S/o G.E. Ganesh, Garagandur village, Sunticoppa 571 237 (By Sri Prabhakar L Shetty Adv.,) … Petitioner … Respondent THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 12.02.2016 PASSED BY THE I ADDL. DISTRICT AND SESSIONS JUDGE, KODAGU, MADIKERI, IN CRL.RP.NO. 19/2015 AND THE ORDER DATED 12.1.2015 PASSED BY THE PRL. CIVIL JUDGE (JR.DN.) AND JMFC., MADIKERI, IN C.C.NO.1305/2007 AND ALLOW THE APPLICATION FILED UNDER SECTION 65 INDIAN EVIDENCE ACT.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned HCGP for petitioner and learned counsel for respondent. Perused the records.
2. Petitioner - State moved an application before the trial court under Section 65 of Indian Evidence Act, seeking production of xerox copies of Form No.35 collected during the course of investigation. In the application, it was stated that Form No.35 and other documents in xerox were produced by the R.T.O., in view of the loss of original documents. The same was reported to M.T.P.S., and a Crl.Mis. No.1289/2012 was registered. Contending that on account of the loss of originals prosecution had to depend upon the secondary evidence i.e., xerox copies of Form No.35 and other documents, prosecution sought to produce secondary evidence of Form No.35. Learned Magistrate by his order dated 12.01.2015 rejected the application. Even the revision petition filed by the petitioner – State has been rejected by order dated 12.02.2016 in Crl.R.P.No.19/2015, affirming the order passed by the learned Magistrate.
3. The averments made in the application clearly disclose that the petitioner –State has laid a foundation for production of secondary evidence. It is specifically stated in the application that original file was lost and was not traceable. The averment made in the application go to show that proceedings were even initiated for loss of original file. Under the said circumstances, prosecution having laid foundation for production of secondary evidence, the courts below have erred in rejecting the application.
4. In this context, it may be useful to refer to the decision of the Hon’ble Supreme Court in the case of Kaliya Vs. State of M.P. reported in (2013) 10 SCC 758, wherein at para No.10 it is held as under:
“10. Section 65(c) of the Act 1872 provides that secondary evidence can be adduced relating to a document when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason, not arising from his own default, or neglect, produce it in reasonable time. The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence. (Vide: H. Siddiqui (dead) by Lrs. v. A. Ramalingam, AIR 2011 SC 1492; and Rasiklal Manikchand Dhariwal & Anr. v. M.S.S. Food Products, (2012) 2 SCC 196). However, the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non-production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. Further, mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide: The Roman Catholic Mission v. The State of Madras, AIR 1966 SC 1457; Marwari Khumhar & Ors. v. Bhagwanpuri Guru Ganeshpuri & Anr., AIR 2000 SC 2629; R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple & Anr., AIR 2003 SC 4548; Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082; and Life Insurance Corporation of India & Anr. v. Rampal Singh Bisen, (2010) 4 SCC 491).
However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasized that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party.” A similar view has been re-iterated in J. Yashoda v. K. Shobha Rani, AIR 2007 SC 1721.”
In the light of the above proposition of law and the averments made in the petition, in my view, petition requires to be allowed subject to proof and admissibility of the said document.
Accordingly, petition is allowed. Impugned order dated 12.2.2016 passed by the I Addl. District & Sessions Judge, Kodagu Madikeri in Crl. Revision Petition No.19/2015 and order dated 12.01.2015 passed by the Prl. Civil Judge (Jr.Dn.) & JMFC., Madikeri, in C.C.No.1305/2007 are set aside. The application filed before the trial court under Section 65 of the Indian Evidence Act is allowed. The petitioner is permitted to produce the documents as sought for.
Sd/- JUDGE psg*