U SHANKAR Vs. STATE

JUDGEMENT

(1.) THE petitioner herein is the first accused in C.C.No.40 of 2007 on the file of the learned District Munsif-cum-Judicial Magistrate, Uthiramerur and he is facing charges for the offences under Sections 379 and 420 I.P.C. r/w. Section 21(1) of Mines and Minerals Act. An application was filed by the prosecution before the trial Court under Section 311 Cr.P.C., praying to recall P.Ws.1 and 2 and to mark the documents viz., MTC Receipt Book and out pass book through them. THE said application was allowed by the learned Magistrate by his order dated 08.04.2011 on the ground that the documents which were sought to be marked were important for the prosecution. Challenging the said order, the petitioner had preferred this Criminal Original Petition before this Court.

(2.) LEARNED counsel for the petitioner submits that though it was mentioned in the application filed by the prosecution that they wanted to file the original documents, actually the documents available are only carbon copies and not the originals. It is further submitted by the learned counsel for the petitioner that the carbon copies of the original documents cannot be marked, since they are only secondary evidence and as per the procedure laid down under Section 62 of the Indian Evidence Act, the secondary evidence cannot be permitted to be marked.

(3.) THE learned Magistrate has permitted to recall P.Ws.1 and 2, who were already examined, and to mark the documents through them. Though the documents available are only carbon copies, as per Explanation 2 to Section 62 of the Indian Evidence Act, those carbon copies are to be taken as primary evidence.