Photostat Copy Of Unregistered Sale Agreement Can't Be Admitted As Secondary Evidence In Trial Only On Basis Of Accused's Admission: Karnataka HC

The Karnataka High Court has held that a photostat copy of an unregistered agreement to sell cannot be admitted as secondary evidence in a trial under section 138 of the Negotiable Instruments Act, only because the accused claims the signature on the document is his.

A single judge bench of Justice S Vishwajith Shetty dismissed a petition filed by one Bhuvaneshwari challenging an order of the trial court 29.12.2022, dismissing his plea to permit him to mark the said document.

The court said, “I am of the opinion that the Trial Court was fully justified in rejecting the prayer of the petitioner to permit him to mark the Photostat copy of the document merely for the reason that the complainant had admitted his signature in the said document.”

The petitioner argued that since the respondent/complainant has admitted his signature in the document, the Trial Court ought to have permitted him to mark the same. Since the signature in the document is admitted, there is no requirement for filing an application seeking permission from the court to adduce secondary evidence.

Further, it was argued that even insufficiently stamped documents can be marked in criminal proceedings and even if the complainant had raised an objection, the document could have been marked subject to objections which could have been considered at the final stage.

The bench noted that secondary evidence must be authenticated by a factual foundation laid and in normal circumstances, an application is required to be filed before the court, after laying down the necessary foundation for permitting the party to adduce secondary evidence. It said that secondary evidence can be introduced if primary evidence is not available and the reasons for its absence are satisfactorily explained.

The party is required to explore all possibilities to secure the primary evidence and in spite of the same, if primary evidence is not available, the court can permit adducing secondary evidence, it was held.

It said “The party is required to explain the circumstances under which the copy of the primary evidence was made and also about his custody of the same. The party is also required to provide foundational evidence to show that the alleged copy is a true copy of the original.”

“In the case on hand, there is no such foundation available on record based on which permission can be granted to adduce secondary evidence to the petitioner herein,” it added.

Accordingly, it dismissed the petition.

End Appearance: Advocate B S Sachin for Petitioner

Citation No: 2024 LiveLaw (Kar) 132.

Case Title: Bhuvaneshwari AND Prashanth Kumar

Case No: WRIT PETITION NO. 18433 OF 2023

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