The present Applicant Original accused has filed the aforesaid application for secondary evidence for accepting the xerox copy of the cheque. Therefore, the issue is whether the xerox copy of the cheque which has been accepted as a secondary evidence is justified or not.
The impugned order in
Revision Application No.28 of 2011 has reflected in detail, discussion about the facts. It is required to be mentioned that the complainant had given a notice Exhibit 54 to the accused to produce original cheque and also a notice under Section 66 of the Evidence Act. Thereafter, the original accused was directed to produce the same within 15 days. The Applicant accused declined to produce the same.
It is in this
background the complainant had produced the xerox copy, which is sought to be challenged that the court has considered the secondary evidence and the order passed by the learned Judicial Magistrate, Dahod, which has been confirmed in the impugned order passed in Criminal Revision Application No.28 of 2011 by the Sessions Court is erroneous.
As could be seen, there is a reference to the memo produced with an endorsement fund insufficient. The deposition of the Bank Officer has also been recorded. The order also refers to the provisions of Section 66 of the Evidence Act and it has been recorded that the xerox copy of the cheque was produced at mark 23/1 prepared by mechanical process. Further, as the original accused, with whom the cheque was lying, had declined to produce the xerox copy of the cheque, has been accepted as a secondary evidence in light of the statutory provision of Section 66 of the Evidence Act, clearly referring to this aspect. Therefore, even after giving the notice as required under the Evidence Act, the original is not produced by the party, the secondary evidence could be relied upon.1
Gujarat High Court
Omprakash Chaudhary, Prop Of ... vs Goverdhan Automobiles on 4 February, 2013
Bench: Rajesh H.Shukla
The present Special
Criminal Application has been filed by the Petitioner under Articles 226 and 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code, 1973 challenging the impugned order passed in Criminal Revision Application No. 28 of 2011 by the learned Principal Sessions Judge, Dahod dated 21.7.2012 on the grounds stated in this Application.
Heard learned Advocate
Shri Nitin K. Mehta for the Petitioner.
Before recording of the submissions, it is desirable to make a note of the fact that this matter was argued by the learned Advocate, and as per the order dated 22.10.2012 by this Bench, it has been recorded:
Arguments are
concluded. At the request made by learned advocate Mr. Mehta for the petitioner, the matter is adjourned to enable him to take instructions. S.O. to 23.10.2012.
Thereafter on
29.10.2012, as there was a sick-note of learned Advocate Shri Mehta, the order has been passed:
As there is
sick-note of learned advocate Mr. Nitin Mehta for the applicant, the matter is adjourned to 06/11/2012.
Again, the matter came
up on 9.11.2012. The learned Advocate was not present due to leave-note, and the order was passed on 9.11.2012:
Though arguments
have been concluded as back as on 22.10.2012, the matter is adjourned because of sick-note or leave-note. Today also as there is leave-note of learned advocate Mr. Nitin Mehta, the matter is adjourned to 03/12/2012.
It appears that due to
change in the business / roster, the matter was posted before another Bench (K.M.Thaker,J) and thereafter, as per the note prepared by the office, the Hon'ble the Chief Justice has directed this matter to be placed before this Bench.
Learned Advocate Shri
Mehta today requested for permission to allow him to make submissions, which cannot be entertained, and still, as and by way of indulgence, he submitted a few authorities, which have been taken on record.
Learned Advocate Shri
Mehta has though given two judgments reported in 1998 (1) GLR 519 Unilec Engineering Co And Anr v. Union of India and the another judgment reported in 1984 GLH 831 Patel Maganbhai Bapujibhai and others v. Patel Ishwarbhai Motibhai and ors, both
these judgments would not apply to the peculiar facts of the case though the learned Advocate has tendered and relied upon the same.
The
judgment reported in 1998 (1) GLR 519 (supra) would not have any application, which could be seen from Head Note C that it was a hand-written document with the signature of the concerned person and it was not stated that it was a copy made from original by mechanical process. That is not the case herein and therefore, this judgment will not have any application.
As can be seen from the record, the impugned order, an application Exhibit 91 given by the Applicant in Criminal Case No.2451 of 2006 before the learned 4th Additional Chief Judicial Magistrate, Dahod. The present Applicant Original accused has filed the aforesaid application for secondary evidence for accepting the xerox copy of the cheque. Therefore, the issue is whether the xerox copy of the cheque which has been accepted as a secondary evidence is justified or not.
The impugned order in
Revision Application No.28 of 2011 has reflected in detail, discussion about the facts. It is required to be mentioned that the complainant had given a notice Exhibit 54 to the accused to produce original cheque and also a notice under Section 66 of the Evidence Act. Thereafter, the original accused was directed to produce the same within 15 days. The Applicant accused declined to produce the same.
It is in this
background the complainant had produced the xerox copy, which is sought to be challenged that the court has considered the secondary evidence and the order passed by the learned Judicial Magistrate, Dahod, which has been confirmed in the impugned order passed in Criminal Revision Application No.28 of 2011 by the Sessions Court is erroneous.
As could be seen, there is a reference to the memo produced with an endorsement fund insufficient. The deposition of the Bank Officer has also been recorded. The order also refers to the provisions of Section 66 of the Evidence Act and it has been recorded that the xerox copy of the cheque was produced at mark 23/1 prepared by mechanical process. Further, as the original accused, with whom the cheque was lying, had declined to produce the xerox copy of the cheque, has been accepted as a secondary evidence in light of the statutory provision of Section 66 of the Evidence Act, clearly referring to this aspect. Therefore, even after giving the notice as required under the Evidence Act, the original is not produced by the party, the secondary evidence could be relied upon.
It is in these
circumstances, the impugned order passed in Criminal Revision Application No. 28 of 2011 by the Sessions Court, Dahod cannot be said to be erroneous, which would call for any interference in exercise of supervisory jurisdiction under Article 227 of the Constitution of India or inherent jurisdiction under Section 482 of Cr.PC.
The Hon'ble Court in a
judgment reported in (1980) 1 SCC 43 Raj Kapoor and Ors. v. State and Ors. has made the observations. A general principle pervades this branch of law when a specific provision is made. Easy resort to inherent power is not right except under
compelling circumstances, not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code.
Similar
views have been expressed in catena of judicial pronouncements including the judgment of the Hon'ble Apex Court reported in (2006) 7 SCC 296 - Popular Muthiah v. State Represented by Inspector of Police.
Therefore, the powers
under Section 482 of Cr.PC are of very wide amplitude which require great caution in its exercise. It has been repeatedly observed that no hard and fast rule can be laid down for exercise of extraordinary jurisdiction. In other words it is not a lack of jurisdiction, but the propriety for exercise of such power when specific provision is made in the statute or the procedural law like Cr.PC or CPC.
Therefore, in view of
these observations, the impugned order cannot be said to be erroneous much less there is any jurisdictional error which call for any interference in exercise of jurisdiction under Section 482 of Cr.PC. The present Special Criminal Application therefore deserves to be dismissed and accordingly stands dismissed.
(RAJESH H.SHUKLA, J.)
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