PERIASAMY Vs. PARVATHY

JUDGEMENT

(1.) AFTER notice of motion, the second Appeal was listed. By consent of both the counsels, the second appeal itself is taken up for final disposal.

(2.) THE unsuccessful first defendant is the appellant. THE plaintiff has filed the suit for recovery of a necklace, weighing about six sovereigns from the defendants. THE plaintiff's case is that the plaintiff has entrusted the jewel to the first defendant for safe custody and when the plaintiff requested the defendant to return the same, the first defendant was evading. Subsequently the plaintiff came to know that the first defendant had pledged the jewel with the second defendant and borrowed some amount. THE suit has been filed for return of the jewellery by the first defendant after discharging the loan with the second defendant or to recover the value of the jewel.

(3.) SO far as the first point is concerned, the learned counsel relied upon Section 65(c) of the Evidence Act and contend that when P.W.5 the Sub Inspector of Police has admitted that the original of Ex.A.4 is available and the copy was prepared only on verifying the original, the plaintiff ought to have taken steps to produce the original. The copy of the document as Secondary evidence can be relied upon only when the original is not available. The learned counsel for the respondents contended that the concerned Sub Inspector, who is now working at Kattuputhur is P.W. 4. He has stated in his evidence as follows:-(Editor: The text of the vernacular matter has not been reproduced.required.)When the complaint was taken on file, P.W.5 has the concerned sub Inspector and now he is not working in the concerned Police Station. P.W.5 has been examined only to markEx.A.4, as the same was recorded by him. It could be seen that tough P.W.5 has stated.(Editor: The text of the vernacular matter has not been reproduced.required.)It has not been elicited that when the copy was prepared. Even in the cross examination the first defendant has not put any suggestion to the effect that Ex.A.4 was prepared either recently or after filing of the suit. In the absence of any evidence to show that Ex.A.4 was furnished recently, the court can presume that perhaps Ex.A.4 might have been given immediately after the statement was recorded. The concerned witness, who is P.W.4 has categorically stated that the originals are not available. As such, reliance placed on Ex.A.4 by the Courts below is quite correct.