Mohd. Abulas Khan vs State of U.P. and Smt. Fatima Tasneem

R.K. Rastogi, J.—This is an application u/s 482 Cr. P. C. for quashing the proceeding of complaint case No. 691 of 2006, Smt. Fatima Tasneem v. Mohd. Abulas Khan pending in the court of A.C.J.M Court No. 3, Allahabad.

The facts relevant for disposal of this application are that the criminal complaint case No 691 of 2006 against the accused applicant is pending in the court of A.C.J.M. Court No. 3 Allahabad. On 2.12.06 it was noticed that the disputed original Cheque No. 664740 which was ordered to be kept on 4.9.06 in a sealed cover was not available on the file and therefore the Office/Reader was directed to attach that disputed original Cheque kept in a sealed cover in the file of the case. The case was directed to be put on 14.12.06 for evidence. On 14.12.06 it had been noted on the order sheet that a report had been given by the Reader regarding that Cheque but no report was received from the office and so the case was directed to be put up on 6.1.07. On that date, it has been noted on the order sheet that an office report was received to the effect that the disputed cheque had not been received in the office after being sealed and since the sealed cheque was not available in the file of the case, the presiding officer passed an order that information to this effect be given to the District Judge and the complainant should produce secondary evidence of the disputed cheque. On 17.1.07 a photostat copy of the original cheque was filed and a copy of that was also given to the accused. On 18.1.07 an application was moved from the side of the accused that since the intimation had been given to the District Judge regarding loss of the cheque, the proceeding of the case should remain stayed till receipt of the instructions from the District Judge. This application was opposed by the complainant. After hearing the parties, the learned presiding officer rejected the application. Aggrieved with that order this application u/s 482 Cr.P.C. has been filed.

Heard the learned Counsel for the applicants and the learned A.G.A. for the State and perused the record. Since only a legal point is involved in this application, I am deciding it at the admission stage.

Section 65(c) of the Evidence Act provides that if the original document has been destroyed or lost, its secondary evidence can be given. It is to be seen that in the present case the presiding officer of the Court has not recorded any specific finding that the original Cheque had been lost. A perusal of the order passed by her reveals that the original cheque after being sealed was not received in the office and as per office report that sealed cheque was not available in the file also. So she passed an order for giving this intimation to the District Judge, and she also directed the complainant to produce its secondary evidence. It is to be seen that in view of the requirement u/s 65(c) of the Act when the cheque was not available a preliminary inquiry regarding loss of cheque should have been held and then finding should have been recorded to this effect that the cheque had been lost, and only then an order could be passed for production of its secondary evidence. The presiding officer failed to do so, and thus committed legal error in directing the complainant to produce secondary evidence without recording any finding about loss of original cheque.

Learned Counsel for the applicants has pointed out that the aforesaid facts were brought to the notice of the presiding officer by moving an application in which he had prayed that instruction of the District Judge should be awaited on the point but she rejected this prayer. The correct legal position is that unless and until a finding is recorded that the original cheque had been lost, secondary evidence was not admissible u/s 65(c) of the Act. Therefore, this application u/s 482 Cr.P.C. deserves to be allowed to this extent only that the secondary evidence of the original cheque can be given only after establishment of this fact that the original cheque had been lost, and so the Presiding Officer of the Court shall first record a finding after preliminary inquiry that the cheque had been lost and then only she shall proceed with the case.

It was next submitted by the learned Counsel for the applicant that his client is residing at Poona and he has to come to court from Poona on each and every date. He may move suitable application before the trial court in this regard and if any such application is moved the trial court shall pass suitable order on that application.

The application u/s 482 Cr.P.C. is finally disposed of subject to above observations.