ORDER
R.S. Garg, J.
1. This order shall also dispose of Civil Revision No. 1628/2000 (Bank of Baroda Vs. Shyamlal G. Ashwani).
2. The applicant defendant by this petition seeks to challenge the correctness, validity and propriety of the order dated 27-3-2000 passed in Civil Suit No. 14-B/1999 whereunder the plaintiff’s application under Section 65 of Indian Evidence Act to lead the secondary evidence, has been allowed.
3. The facts necessary for disposal of the revision are that the plaintiff/ non-applicant filed a suit before the Trial Court seeking decree for Rs. 67,500/-with interest and costs against the applicant-Bank, inter alia, pleading that on a forged cheque/withdrawal form, the plaintiff’s account was debited and as the act of applicant-Bank was of negligence, was covered with fraud, the plaintiff is entitled to recover the money. The defendant in its written statement contended that in the regular course of business, the cheque was cleared and that they are not answerable to the claim made by the plaintiffs.
4. From the records, it appears that on a complaint made by the plaintiff, the investigation was conducted by the police who after finding a foul play, seized the cheque/cheques from the custody of the Bank and filed challan before the competent Court.
5. During the course of Trial, the plaintiffs made an application under Section 65 of the Indian Evidence Act inter alia submitting that the cheque has not been submitted as a document alongwith the challan in Criminal Case No. 202/1999 pending in the Court of Judicial Magistrate, First Class, Raipur and as the plaintiffs are possessed of a photocopy of the said cheque/ withdrawal form, they be permitted to lead secondary evidence. The application was contested by the defendant-Bank on many fold foundations. One of the grounds was that the cheque was seized by the police and if the said cheque has not been filed by the police alongwith the challan, then the cheque must be available in the case diary.
6. The learned Trial Court after hearing the parties, allowed the application submitted by the plaintiffs. Being aggrieved by the said order, the defendant-Bank has filed this revision petition.
7. Shri Satish Agrawal, learned counsel for the applicant-Bank contends that unless the requirement of Section 66 of Indian Evidence Act is fulfilled and the pre-conditions under Section 65 of the Evidence Act arc not in existence, an order permitting to lead secondary evidence cannot be granted.
8. On the other hand, Shri Alok Aradhe, learned counsel for the non-applicants/plaintiff’s contend that the cheque is not within the reach of the plaintiffs and as the cheque/cheques in original have not been filed with the challan in the above referred Criminal Case No. 202/1999, the Court was absolutely justified in granting permission to the plaintiffs.
9. I have heard the parties.
10. Section 65 of the Indian Evidence Act, as in material for disposal of this petition reads as under:–
“65. Secondary evidence may be given of the existence, conditions, or contents of a document in the following case:–
(a) When the original is shown or appears to be in the possession or power-
of the person against whom the document is sought to be proved, or
of any person out of reach of, or not subject to, the process of the Court, or
of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it.”
11. Section 66 of the Indian Evidence Act rules that secondary evidence of the contents of the documents referred to in Section 65, clause (a), shall not be given, unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his attorney or pleader, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case. Certain proviso have also been appended to Section 66.
12. Permission under Section 65(a) shall not be given to the party unless the said party gives notice to the party in whose possession or power the document is. This part would apply to a party to the suit or proceedings. It would not apply to the third party who is possessed of the document. In any case, permission under Section 65 can be given to a party if it is shown to the satisfaction of the Court that the document is in possession of any person out of reach of, or not subject to, the process of the Court. Undisputedly, in the present case, neither the Investigating Agency nor the Court before whom the challan has been filed are out of reach of, or not subject to the process of the Court. Unless a finding is recorded by the Court that the person who is possessed of the document is out of reach of the Court or is not subject to the process of the Court, an application submitted under Section 65 of the Act seeking permission to lead secondary evidence, should not be granted. In the instant case, the Court below did not properly appreciate the legal provisions and in a very casual manner granted the application, at this stage.
13. The plaintiffs would always be free to summon the witnesses including the Investigating Officer with the case diary or the record keeper of the Criminal Court with complete challan papers so that the cheques in original are produced in the Court. If such cheque/cheques arc available cither in the case diary or in the challan papers, then there would be no problem in exhibiting the cheques, in these civil proceedings. If ultimately it is brought on record, even after summoning the Investigating Officer with the case diary or the record-keeper with challan, that the said cheques are not available in either of these documents, then certainly the plaintiffs would be entitled to make application under Section 65 of the Indian Evidence Act.
14. The present application was in fact premature. Order passed by the Court below was not in accordance with law and while passing the said order,
the Court below has acted with material irregularity which has affected its jurisdiction. The order deserves to and is accordingly quashed. The plaintiffs would be free and the Trial Court shall grant them permission to summon the Investigation Officer with the case diary and the record keeper of the Criminal Court with complete papers of challan. If the said cheque/cheques are available either in the case diary or in the challan papers, the same may be exhibited in accordance with law, but if the said cheques are not available either in the case diary or in the challan papers, then the plaintiffs would be entitled to make an application under Section 65 of the Indian Evidence Act.
15. At this stage, Shri Agrawal, learned counsel for the applicants submits that the cheques might be available in the records of Criminal Case No. 1596/1988. The defendant may supply the further information to the plaintiffs enabling them to summon the records of that case also. It shall, however, be the responsibility of the defendant to provide the complete information about the said criminal case.
16. Petition is allowed. No costs.
17. Civil Revision allowed.
