DAGDU GENBA PISE Vs. JETHA B KHARVA

JUDGEMENT

(1.) THE applicant-original complainant has preferred this application for leave to file appeal against judgment and order dated 27th March 2006, passed by the learned Metropolitan Magistrate Mumbai, in Case No.1137/S/2002. By the said judgment and order, the learned Magistrate acquitted the respondent-original accused of the offence under section 138 of the Negotiable Instruments Act.

(2.) THE case of the complainant is that he had advanced a loan to the accused. By way of part payment of the said loan, the cheque in question came to be issued. The cheque was dis-honoured, hence, notice was issued to the accused, as payment was not made by the accused within the stipulated time, the complaint came to be filed.

(3.) IN the present case, on perusal of the record, it is seen that the complainant has not filed any original documents, the original cheque, original bank memo, notice, original acknowledgement card of the notice and loan agreement. The complainant has only produced certified true copies of the cheque, bank memo, notice, postal acknowledgement and loan agreement. It is not the case of the complainant that he was not for some reason in a position to bring the original documents on record and prove the same. It is an admitted fact that the original documents were not brought on record. The original documents are the best evidence, only if they are lost, destroyed, etc., then permission may be sought from the court for leading secondary evidence under section 65 of the Evidence Act. No such permission has been sought by the complainant. Moreover, it is not the case of the complainant that the original documents are lost or destroyed, etc. Obviously, when the original documents have not been produced and no permission is obtained from the court for leading secondary evidence, the true copies which have been produced by the complainant cannot be read in evidence. It is on this ground that the learned Magistrate acquitted the accused.