#384

#chequebounce #evidence

Karnataka High Court
Basanth Pictures vs M A Ganesha Murthy on 4 June, 2012
Author: A.S.Pachhapure
1 CRL.A 758/04
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF JUNE, 2012
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL No.758 OF 2004
BETWEEN:
Basanth Pictures,
No.176, 6th Cross,
Gandhinagar,
Bangalore-560 009,
Rep. by its Proprietor,
Basanth Kumar Patil. ... APPELLANT/S
[By M/s. H.R. Anantha Krishna Murthy &
Assocs., Advs.]
AND:
M.A. Ganesha Murthy,
No.7, Upstairs, 4th Cross,
Gandhinagar,
Bangalore-560 009. ... RESPONDENT/S
[By Sri. P.D. Surana, Adv.]

7. P.W.1 in his evidence stated that after receipt of the cheque in question dated 14.10.1999, he
presented the said cheque for encashment on 27.10.1999 and it returned with an endorsement account closed on 30.10.1999" and ultimately, he issued a notice to the accused as contemplated
under 8 CRL.A 758/04 Section 138 of N.I. Act. It is admitted by the complainant himself that after
return of the cheque dated 14.10.1999, when he had received the said cheque, it was lost/misplaced
and he did not trace the said cheque. Therefore, in order to prove presentation of the cheque for
encashment and its return without encashment, he has examined P.Ws.2 and 3. So, the original
cheque, which is said to have been issued by the accused is either lost or misplaced as claimed by the
complainant. The complainant has adduced secondary evidence by examining P.Ws.2 and 3 and by
producing the documents maintained by the banks, wherein it is stated that the cheque was received
for encashment and later it was returned as the account was closed. The cheque lost was the original
and it is primary evidence. The evidence that has been adduced to prove issuance of the cheque,
presentation for encashment and its return is secondary evidence. Therefore, there was a duty cast
upon the complainant to comply the provisions of Section 65 of the Indian Evidence Act, 1872 to
accept the 9 CRL.A 758/04 secondary evidence adduced by him to prove the loss of original cheque.
The complainant may give secondary evidence relating to the cheque lost if he proves any one of
requirements enumerated under Section 65 of the Indian Evidence Act and they are extracted
hereunder:
"Cases in which secondary evidence relating to documents may be given.- Secondary
evidence may be given of the existence, condition, or contents of a document in the
following cases:-
(a) x x x x x
(b) when the existence, condition or contents of the original have been proved to be
admitted in writing by the person against whom it is proved or by his representative
in interest;
(c) 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;
Though the accused had admitted the existence,
Basanth Pictures vs M A Ganesha Murthy on 4 June, 2012
Indian Kanoon - http://indiankanoon.org/doc/174523393/ 4
condition or contents of the original, to accept the secondary evidence, it is necessary
for the complainant to prove an admission in writing by the accused with regard to
existence, condition or contents of the original. Though the accused has admitted
issuance of the cheque, this admission is not in writing. Therefore, Clause (b) of
Section 65 of the said Act do not come to help of the complainant. Now to consider
Clause (c), in case, if the complainant establishes that the cheque was lost and this is
for the reason not arising from his own default or neglect, in such circumstances, the
secondary evidence can be accepted. As could be seen from the evidence of P.W.1, he
does not state anything about the care taken by him about the safety of the cheque,
which was returned from the 11 CRL.A 758/04 bank and even he does not say that
there was no default or negligence on his part. Therefore, I am of the opinion that
even Clause (c) of Section 65 of the Act does not come to help of the complainant.In these circumstances, it has to be held that secondary evidence adduced by the complainant to
prove the lost original cheque do not fall within the purview of Section 65 of the Indian Evidence Act
and therefore, such evidence cannot be accepted.