The Madurai Bench of the Madras High Court has ruled that a xerox copy of a cheque can be admitted as secondary evidence in a criminal proceeding under the Negotiable Instruments Act, 1881, if the trial court had previously verified the original document before it was subsequently lost. Justice Shamim Ahmed, setting aside a trial court’s order, held that the refusal to accept the xerox copy, after the original had been seen and endorsed by the court, amounted to a “great miscarriage of justice.”
The decision came in a Criminal Revision Case filed by Mohammed Iqbal against an order of the Judicial Magistrate I, Pudukottai, which had dismissed his petition to accept a photocopy of a cheque as secondary evidence in a case of dishonour.
Background of the Case
The petitioner, Mohammed Iqbal, had initiated proceedings against the respondent, S. Manonmanian, under Section 138 of the Negotiable Instruments Act. According to the petitioner, the respondent had borrowed a sum of ₹5,50,000/- on February 1, 2014, and had issued a post-dated cheque for the amount, drawn on ICICI Bank, Virachilai Branch.
When the petitioner presented the cheque for encashment on May 29, 2015, it was returned for “Funds Insufficient” on May 30, 2014. A subsequent legal notice sent on June 14, 2014, was returned as refused by the respondent, leading the petitioner to file the case (STC.No.476 of 2016) before the Judicial Magistrate I, Pudukottai.
During the trial, the petitioner filed a miscellaneous petition (Crl.MP.No.101 of 2025) under the Indian Evidence Act, 1872, seeking to admit a xerox copy of the cheque as secondary evidence. The petitioner contended that the original cheque was misplaced and lost by his former advocate. On April 15, 2025, the trial court dismissed this petition, stating there was no evidence to prove the petitioner’s claim that the original cheque was lost by his counsel. This dismissal prompted the petitioner to file the present revision case before the High Court.
Arguments Before the High Court
The petitioner’s counsel, Mr. V. Kannan, argued that the original cheque was produced before the trial court when the complaint was filed. He submitted that on July 15, 2014, during the recording of the petitioner’s sworn statement, the trial court verified the original cheque, retained a xerox copy, and returned the original to the petitioner, a fact endorsed in the court record. He contended that since the court had already satisfied itself as to the original’s authenticity, the xerox copy should be accepted as secondary evidence under Sections 63(2) and 65 of the Indian Evidence Act.
Conversely, the respondent’s counsel, Ms. S. Prabha, supported the trial court’s order. She argued that there was no proof that the original cheque was lost and that a xerox copy could only be permitted after comparison with the original, which was no longer possible.
Court’s Analysis and Reasoning
Justice Shamim Ahmed centered the analysis on the interpretation of Sections 63 and 65 of the Indian Evidence Act. The court noted that while Section 64 establishes the general rule that documents must be proved by primary evidence (the original), Section 65 provides exceptions. Specifically, Section 65(c) permits secondary evidence “When the original has been destroyed or lost.”
The High Court found a crucial fact in the record that the trial court had overlooked. The judgment highlighted the trial court’s own finding in its impugned order that the petitioner had indeed received back the original cheque on July 15, 2014, after his sworn statement was recorded and an endorsement was made.
Justice Ahmed reasoned that this sequence of events was critical. The High Court observed, “…the Trial Court itself received the original cheque, verified the same and returned to the Petitioner on the same date, on retaining the xerox copy of the same. Thus, it can be held that the Trial Court, only after due enquiry, satisfaction and comparison, it had returned the original cheque to the Petitioner, after retaining the xerox copy of the same.”
This act of verification by the court, in the High Court’s view, satisfied the conditions under Sections 63(2) and 63(3) of the Act, which define secondary evidence to include copies made by mechanical processes that ensure accuracy and copies compared with the original.
The court concluded that the petitioner’s case fell squarely within the exception provided by Section 65(c) of the Act, as the original cheque was now lost.
The judgment also relied on a precedent set by a coordinate bench in Crl.RC(MD)No.161 of 2014, which had permitted secondary evidence in similar circumstances where a Magistrate had verified original documents, retained photocopies with an endorsement, and returned the originals which were later lost.
Concluding its analysis, the High Court held that the trial court’s decision was unsustainable. “This Court is of the view that the impugned order, refusing to receive the xerox copy of the original cheque, only on the ground that there is no evidence to prove that the cheque was lost, without adhering to the provisions of Sections 63(2) and (3) and 65 of the Indian Evidence Act, cannot be sustained and as such, it requires interference by this Court,” the order stated.
Decision
The Madras High Court allowed the Criminal Revision Case and set aside the order of the Judicial Magistrate I, Pudukottai, dated April 15, 2025. The High Court directed the trial court to receive the xerox copy of the cheque as secondary evidence on record and to expedite the trial and conclude it as expeditiously as possible.
