Dismissed

Smt Sunita Tailor W/O Sh. Rajkumar Tailor v. State of Rajasthan

Rajasthan HC15 Apr 2019CRLMP/1683/2019

Case brief

AI extract

What is this about?

Petitioner sought permission to prove a photostat copy of an original document as secondary evidence under Section 63 of the Evidence Act. The Court rejected the proposition, citing precedents that photostats are not secondary evidence unless the original is lost or unavailable and proper permission is obtained. The petition was dismissed.

What did the court decide?

Permission to prove photostat copy denied; petition dismissed.

Smt Sunita Tailor W/O Sh. Rajkumar Tailor Vs State of… — Specific Performance | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Miscellaneous (Petition) No. 1683/2019

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Smt Sunita Tailor W/o Sh. Rajkumar Tailor, B/c Tailor R/o A-127 Ganesh Nagar Balaji Engineering College Bainad Road Jaipur

¶4

----Petitioner

¶5

Versus

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State Of Rajasthan, Through Pp

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Angoori Devi W/o Sh. Heera Lal, R/o F-85 Saini Colony Ram Nagar Sodala Jaipur

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----Respondents For Petitioner(s) : Mr. Vivek Goyal For Respondent(s) : Mr. Sher Singh Mahla, P.P.

¶9

HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

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/ Order

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15/04/2019

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Admittedly, it is a case of the petitioner that the original document, is with the complainant and, therefore, the petitioner be permitted to prove photostat copy as a secondary evidence.

¶13

It is a settled legal proposition that the photostat copy will not fall within the ambit of Section 63 of the Indian Evidence Act, which defines secondary evidence.

¶14

A Single Judge of the Punjab & Haryana High Court in the case of Darshan Kaur Vs. The Amritsar Primary Cooperative Agricultural Development Bank Limited and another, reported as 2010 (1) RCR (Civil) 747, held as under :-

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“9. Now the second question of law that whether by merely placing on record photostat copies of documents liability against a person can be fastened when neither execution of those documents has been proved nor even the original documents are produced in evidence in that regard. Counsel

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(2 of 3)

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[CRLMP-1683/2019]

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for the appellant has referred to the findings recorded in para 14 of the learned trial court, which reads as under:

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DW2 while facing cross-examination categorically admitted that he had not produced any mortgage deed in the court, which is Ex.D1 nor he did see the original mortgage deed in the Court. Ex.D1 admitted to be a copy of mortgage deed, which was not produced by him. Otherwise, it is admitted by DW2 that mortgage deed Ex.D1 was attested by one V.K.S. Malhotra, Advocate and one Madan Lal son of Sarwan Kumar. I observe that none of the attesting witnesses to the alleged mortgage deed was examined. It is evident that the material evidence i.e. Original mortgage deed has not come on record.

¶20

It is further evident that at no point of time, permission for proving the same by way of secondary evidence was obtained from the Court. By merely marking Ex. on the document does not become admissible in evidence though brought on record, has to be excluded from consideration. Further more, an objection to the admissibility of the evidence was taken when it was tendered in evidence. In this regard, the Ld. counsel for the plaintiff relied upon 2004 (4) R.C.R. (Civil) 704 case titled as R.V.F. Venkataehalu Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Ors., in which their Lordship has held as under:

¶21

Document marked as exhibit, a document not admissible in evidence though brought on record, has to be excluded from consideration. An objection to the admissibility of evidence should be taken when it is tendered and not subsequently.

¶22

In this regard, the Ld. counsel for the plaintiff also referred 2003 (4) R.C.R. (Civil) 693 (S.C.) titled as Narbada Devi Gupta v. Birendra Kumar Jaiswal and Anr., in which their Lordship has held:

¶23

Mere production and making of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence. Situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the Court.

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Therefore, in view of the citations above referred by the Ld. Counsel for the plaintiff to which no controverting citation was referred by the Ld. Counsel for the defendants, I observe that merely marking of a Ex.D1 on the copy of the mortgage deed does not dispense with the mode of proof of a document.

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Furthermore, DW2 admitted that D2 is the copy of which no original was seen by the DW2. There is no signatures or thumb impressions of Avtar Singh on Ex.D2. Ex.D3 is also stated to be attested copy, but not attested by DW2. With regard to Ex.D4, which too is admitted the copy stated to had not been produced by DW2 nor its original of the same was seen and Ex.D4 stated to had been prepared by Patwari. With regard to Ex.D5, which too is admitted to be a copy and original does not bear the signatures of DW2 nor prepared by him. The original also do not bear thumb impressions and signatures of Avtar Singh. Similar is the assertion of DW3 with regard to Ex.D6, Ex.D7, Ex.D8, Ex.D9, Ex.D10, Ex.D11, Ex.D12, Ex.D12-A, Ex.D12-B, Ex.D14, Ex.D15, Ex.D16, Ex.D17, Ex.D18, Ex.D19 and Ex.D20. As such no evidentiary value could be attached to these documents as well.”

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(3 of 3)

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[CRLMP-1683/2019]

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The Supreme Court in the case of J. Yashoda Vs. K. Shobha Rani, reported as A.I.R. 2007 S.C. 1721 has specifically held that the photostat copy cannot be termed as a secondary evidence.

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Consequently, no interference is warranted and the present petition, being devoid of merits is dismissed.

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(KANWALJIT SINGH AHLUWALIA),J

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ASHOK

Smt Sunita Tailor W/O Sh. Rajkumar Tailor v. State of Rajasthan

Case brief

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Smt Sunita Tailor W/O Sh. Rajkumar Tailor v. State of Rajasthan

Case brief

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