Elektromek Services Through Proprietor Ashok Sharma vs Ashok Khandelwal

This is a petition under Section 482 of the Cr.P.C. to challenge the order dated 15.03.2016 passed by the Judicial Magistrate First Class, Indore in Criminal Case No. 45912/14, whereby the learned Magistrate has dismissed the application of the petitioner filed under Section 65 of the Evidence Act, 1872 to permit him to prove the notice of demand sent to the respondent under Section 138 (b) of the Negotiable Instruments Act, 1881 (for brevity hereinafter referred to as the Act, 1881).

Facts giving rise to the present petition are that the petitioner filed a complaint that the cheque issued by the respondent in his favour was dishonoured by the bank due to insufficiency of funds and even after issuance of notice of demand, the money was not repaid. At the time of evidence it was objected by the respondent that the petitioner has filed only photo copy of the demand notice with the complaint, which cannot be exhibited. The counsel for the petitioner submitted that copy of the notice sent to the respondent is kept in his office and he will produce the same. He was directed by the Court to produce the same on affidavit. In compliance, true copy of the notice was filed with affidavit of the advocate himself on 23.11.2015. It was objected by the respondent that it was not true copy of the notice as the office address of the sender advocate was totally different and there was no handmade correction in this copy.

In the copy of notice issued on the letter pad of the counsel and filed with the complaint office address of the advocate was 172-A/S/2, Scheme No. 78 Vijay Nagar, Indore while copy filed with the affidavit dated 23.11.2015 the office address was 139, First Floor, Prime trade Centre, 14 Sikh Mohalla, Indore. Further, in the copy filed with the complaint in the address of the bank out of the printed word "Khandwa Road" word "Khandwa" was struck off and in its place word "Kanadiya" making it "Kanadiya Road" was inserted by hand. There were also some variations in the content of both the copies. The words "भारतीय दण्ड संहिता की विभिन्न धाराओं के अंतर्गत तथा "were missing in the copy filed subsequently.

Again an objection was raised that this is not a true copy. The petitioner/complainant then filed an application under Section 65 of the Evidence Act, 1872 to seek permission to exhibit this copy as secondary evidence. This application was dismissed by the learned magistrate observing that secondary evidence can only be admitted when sufficient explanation is given for non production of original document and 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 order of the learned magistrate is challenged by filing the present petition. A copy of the notice is annexed with the petition as A/6. In this third copy relied on and filed by the petitioner also there were some changes. Unlike to the earlier two copies now the words "शाप नंबर 9,10,11, शहनाई-2, खण्डवा रोड, इंदौर का राशि रूपये 11,16,894/-" बंउम वद जीम पितेज चंहम पदेजमंक व िेमबवदक चंहम ंदक ूवतके "निगोशिएबल इन्सट्रूमेंट की धारा 138 के अन्तर्गत"ण् ंतम उमदजपवदमक ंे "धारा 138 निगोशिएबल इन्सट्रूमेंट एक्ट के तहत "

This Court vide order dated 4.12.2017 directed the counsel for the petitioner "to file an affidavit narrating the circumstances in which copy of the notice was filed in a modified form before the learned trial Court." In compliance of the direction, the petitioner/complainant filed affidavit dated 3.01.2018 on 11.01.2018 stating that the copy filed with the complaint was the photo copy of the notice sent to the respondent by his counsel but during the course of the evidence, his counsel took out a new print of the notice from his computer and produced the same before the Court by mistake.

Thus, there is no doubt that there is difference between all three copies of the notice (sent to the respondent) produced by the petitioner. Now, the question for consideration before this Court is; whether permission to exhibit the copy of the notice in question issued under proviso (b) to Section 138 of the Act, 1881 can be granted?

The substance of the averments of the petition is that it was a bonafide mistake and that the trial Court has committed error in not considering that as per the law, copy of the demand notice can be exhibited by the sender under Section 66 of the Evidence Act.

It is not the case of the petitioner that the notice was lacking relevant information. The perusal of the notice would show that it was issued to the respondent and not to any stranger. It was sent by speed post on the address of the respondent and was received by some Asha. In all three copies particulars of the cheque; the cheque number, name of the bank, the date of the cheque including the amount demanded, are the same. Substance of the demand notice as well as its copies produced is that the complainant informed the respondent that the cheque No. 000075 dated 1.10.2014 of the HDFC Bank branch shop No. 9,10,11 Shahnai-2 amounting to Rs. 11,16,894/- has been dishonoured, therefore, he has to pay the sum of the cheque within 15 days else legal proceedings will be initiated against him. The variation in the copies of the notice is on the insignificant issues like difference in address of the advocate, missing of correction made by hand in respect of name of the road where the branch of the bank is situated i.e. 'Kanadiya Road' or 'Khandwa Road', missing of the words ''भारतीय दण्ड संहिता की विभिन्न धाराओं के अंतर्गत तथा"and variation in the manner of mentioning the relief or change in format/text ''निगोशिएबल इन्सट्रूमेंट की धारा 138 के अन्तर्गत"etc.

This is not the case of the respondent that due to variations/changes; in the copies of the notice produced by the petitioner any prejudice is caused to him. Affidavit is filed by the petitioner that he had produced photocopy of the notice sent to the respondent and this copy was prepared from the original demand notice served to the respondent. No affidavit in rebuttal is filed by the respondent. Copy prepared from the original by mechanical process which in themselves insure the accuracy of the copy can be proved as secondary evidence. At such stage trial Court cannot refuse prayer of defendant doubting genuineness of document. Opinion formed by trial Court about veracity of document without affording an opportunity to defendant to adduce evidence would be improper (Nawab Singh v. Inderjit Kaur AIR 1999 SC 1668). The object of notice under Section 138(b) of the Act is to inform the drawer of the Cheque and to give an opportunity to rectify the mistake to bonafide and honest drawer to avoid the prosecution. Looking to the object of the provisions of Section 138(b) of the Act, 1881 hyper technical approach should be avoided. As per provision of Section 63(5), oral accounts of the contents of a document given by some person who has himself seen can be considered as secondary evidence. Mere exhibition of the document on the record would not make the document admissible if it had not been proved in accordance with law. The content of the document has to be proved by examining the witness in Court and by giving opportunity of cross-examination to the defence. The respondent would have opportunity to rebut the genuineness and reliability of the document. In view of the nature of the document and the peculiar facts and circumstances of the case, veracity of the document can only be determined after taking evidence and after granting opportunity to both the parties to prove or to disprove the document.

For the forgoing reasons, I am of the opinion that it will be unfair, unjust and unreasonable to compel the complainant to pursue the prosecution without getting proper opportunity to prove the notice, which will lead to the failure of his claim. Therefore, the petition preferred by the complainant is allowed. The impugned order dated 15.03.2016 is hereby set aside. The trial Court is directed to permit the petitioner to exhibit the copy of the demand notice filed with the complaint and to proceed further to try and decide the case in accordance with law. It is made clear that this Court has only permitted the petitioner to exhibit the document and has not commented on veracity or genuineness of the documents, which shall be considered and decided by the trial Court after recording evidence of both the contesting parties. Further, the petitioner shall bear cost of Rs.15,000/- out of which Rs. 10,000/- shall be deposited with the "Vidhi Vatica Account" maintained by the High Court Bar Association, Indore for the purpose of plantation and Rs. 5,000/- shall be paid to the respondent.

With the aforesaid, the petition stands allowed and disposed off.