Rajendra Prasad Bansal vs Mukesh Kumar Jain

Hon''ble Shri Justice Sujoy Paul

In this petition filed under Article 227 of the Constitution, the petitioner has challenged the order dated 07/05/2012, whereby an application u/s 65 of the Evidence Act preferred by defendant was allowed by the Court below. In the said application, the defendant stated that the matter before the trial Court was earlier listed on 20/03/2012. The defendant appeared before the Court below for his cross-examination. However, the cross-examination could not take place and the matter was adjourned. The defendant was carrying original sale agreement dated 31/10/2001 with him, which was lost by him somewhere. A report in this regard was lodged in police station Inderganj. On the strength of this, it was stated before the Court below that in view of Section 63 read with Section 65(c) of the Evidence Act, the said document may be accepted in evidence. The Court below after hearing the parties, allowed the said application by impugned order. The said order is challenged by the petitioner/plaintiff on following grounds:- (1) As per Section 63 of the Evidence Act, a photocopy can be relied upon only when it is compared with original. (2) The document in question is neither compared with the original nor there exists any such proof to believe it was a photocopy of its original. (3) All other documents are available with the defendant and only one document i.e. sale agreement is allegedly lost, which is unbelievable. Shri Rajiv Jain, Learned Counsel for the petitioner relied on the relevant provisions of the Evidence Act and also the recent order passed by this Court in W.P. No. 09/2012 (I) [Ganesh Vs. Smt. Basanti Mahore and others] decided on 22/06/2012.

Per Contra, Shri Prakash Braru advanced his oral submissions and also filed written submissions. By placing reliance on Section 63(2) and Section 65(c) of the Evidence Act, Learned Counsel submits that the said document can be taken in evidence. He relied on Smt. Sattamma and Others Vs. Ch. Bhikshapati Goud alias Ch. Bhupal Goud and Others, 2002 (II) M.P.W.N. 81 [Harishchand Pipariya (Dr.) Vs. Mukesh Kumar Kushwaha] and H. Siddiqui (dead) by L.Rs. Vs. A. Ramalingam,

I have heard Learned Counsel for the parties and perused the record.

Section 63(2) defines, secondary evidence which includes even photocopies which are made from original by mechanical process, however, to ensure the accuracy of the copy, the requirement is that it should be compared with original. Section 63(3) makes it clear that copies which are made from or compared with the original can be treated as Secondary Evidence. Section 65(c) makes it clear that loss of original document can be a ground for admitting secondary evidence provided the original document is not destroyed or lost because of default or negligence of the person, who is producing the photocopy.

In the light of aforesaid, in my considered opinion, as per Section 63 a photocopy is admissible, where it is compared with the original. Section 65(c) also permits the photocopy as secondary evidence provided it is established that original is not lost or destroyed because of a person''s own negligence. In the present case, admittedly, the photocopy is not compared with the original. Original document is allegedly lost and therefore, there is no question of comparing the photocopy with its original. Thus, the requirements of Section 63 are not fulfilled. So far, Section 65(c) is concerned, it makes it crystal clear that if a document is lost or destroyed because of somebody''s negligence, he cannot be benefited by such negligence. In Smt. Sattamma (supra), the facts were totally different. The photocopy of the agreement was duly attested by Notary as secondary evidence. In those circumstances, the Andhra Pradesh High Court has accepted the contention and photocopy was allowed. Thus, the said judgment is distinguishable. Similarly, in Harishchand Pipariya (supra), the original document was filed in Income Tax Department, wherefrom it was lost. It is clear that in such circumstances, Section 65(c) will apply because by no stretch of imagination, the person can be blamed for loss of document from Income Tax Department, which is beyond his control/approach. In other words, since document was filed before the Income Tax Department and it was lost from that department, Section 65(c) will have application and the negligence cannot be attributed to the person, who intended to lead evidence on the basis of photocopy/secondary evidence. In the present case, the document is admittedly lost from the possession of the petitioner. If he had lost it, as stated by narrating the facts in his application u/s 65, there cannot be two opinions that it is lost because of his negligence. No evidence is required in this respect. A valuable document which was required for his defence is lost by him, leads to only conclusion that it is lost because of the default and negligence of the defendant. Thus, as per Section 65(c), no benefit can be given to the defendant.

So far, H. Siddiqui (supra) is concerned, the Apex Court held that the secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of original. In my considered opinion, the defendant has failed to prove the same. The Court below has erred in allowing the application. The Court below relied on 65(c) of the Evidence Act in last para of internal page 3 of the impugned order, but did not read it in its entirety. The secondary evidence is not mechanically admissible when it is lost or destroyed. The further condition is required to be satisfied that such loss is not attributable to the person concerned and it is not arising out of his negligence. The Court below has not addressed on the aforesaid facet of the statute. Consequently, a relevant consideration has not been dealt with by the Court below, which hits wednesbury principles. Needless to mention that the Court below was required to examine the application u/s 65 in the teeth of relevant provision including Section 63 & Section 65 of the Act. On the basis of aforesaid analysis, it is clear that the Court below has erred in allowing the application without comparing the photocopy with original and without examining that the defendant himself negligently lost the said document. Considering the aforesaid, the order impugned to the extent Section 65 application was allowed, cannot be permitted to stand. Consequently, the impugned order to the extent indicated above is set aside. Petition is allowed. No costs.