Xerox Copy of Lost Cheque admissible as Secondary Evidence : Madras High Court Ruling

 Xerox Copy of Lost Cheque Admissible as Secondary Evidence: Madras High Court Ruling

Introduction

In a significant ruling on the admissibility of secondary evidence in cheque bounce cases, the Madras High Court (Madurai Bench) has held that a xerox copy of a cheque can be admitted as secondary evidence under the Indian Evidence Act, 1872, if the trial court had earlier verified the original cheque and returned it to the complainant. The decision was rendered by Justice Shamim Ahmed in a Criminal Revision Case filed against the order of the Judicial Magistrate I, Pudukottai, which had refused to accept the xerox copy of the cheque.

This judgment reiterates the principle that procedural rigidity cannot override substantive justice, especially in matters where the trial court itself had earlier recorded satisfaction about the genuineness of the original cheque.

Factual Background

In 2014, the Respondent borrowed ₹5,50,000 from the Petitioner and issued a cheque as security.

When presented for encashment, the cheque was dishonoured with the remark “Funds Insufficient.”

The Petitioner issued a statutory notice under Section 138 of the Negotiable Instruments Act, 1881 (NI Act). The Respondent refused to accept the notice.

Consequently, the Petitioner filed a complaint under Sections 138 and 147 NI Act before the Judicial Magistrate, Pudukottai.

During the trial, the Petitioner moved an application under Section 63(a) of the Indian Evidence Act, 1872 to mark a xerox copy of the cheque as secondary evidence, stating that the original cheque had been misplaced by his previous counsel.

The Trial Court dismissed the petition on the ground that there was no proof to establish that the original cheque was lost.

Aggrieved, the Petitioner filed a Criminal Revision Petition before the Madras High Court.

Legal Issue

Whether a xerox copy of a lost original cheque can be received as secondary evidence under the Indian Evidence Act, when the trial court had earlier verified the original cheque.

Relevant Legal Provisions

Section 63 of the Indian Evidence Act, 1872 – Defines “secondary evidence,” which includes:

Copies made from the original by mechanical processes ensuring accuracy.

Copies made from or compared with the original.

Section 65(c) of the Indian Evidence Act, 1872 – Provides that secondary evidence may be given when the original is destroyed or lost.

Section 138 of the Negotiable Instruments Act, 1881 – Provides penal consequences for dishonour of cheques due to insufficiency of funds.

Section 147 of the Negotiable Instruments Act, 1881 – Declares offences under the NI Act to be compoundable.

High Court’s Reasoning

The Madras High Court observed that:

The trial court had itself recorded that the Petitioner produced the original cheque, which was verified during the sworn statement on 15.07.2014.

The trial court made an endorsement in the sworn statement that the cheque was returned to the Petitioner after verification.

This meant that the trial court had already ensured the authenticity of the cheque and retained a xerox copy for its records.

Justice Shamim Ahmed clarified that:

Since the trial court had verified and returned the cheque, the xerox copy qualifies as secondary evidence under Sections 63(2) and 63(3) of the Evidence Act.

Further, since the original cheque was lost, Section 65(c) of the Evidence Act applied, making the xerox copy admissible.

The trial court’s refusal to admit the xerox copy on the sole ground of lack of proof of loss amounted to a miscarriage of justice.

Judgment

The High Court set aside the trial court’s order and directed that the xerox copy of the cheque be received as secondary evidence.

It further instructed the Judicial Magistrate, Pudukottai, to expedite and conclude the trial in accordance with law.

No costs were imposed.

Significance of the Ruling

Clarification on Secondary Evidence – The judgment reaffirms that secondary evidence of a cheque can be admitted when:

The original has been verified by the court.

The original is lost or misplaced.

Balance Between Procedure and Justice – The ruling prevents undue hardship to complainants who lose the original cheque after due verification, ensuring that procedural requirements do not defeat substantive rights.

Strengthens NI Act Proceedings – It ensures that cheque bounce prosecutions under Section 138 NI Act are not frustrated merely due to technical objections about the original cheque.

Conclusion

The Madras High Court’s ruling in this case underscores the judiciary’s duty to uphold justice by adopting a liberal approach to admissibility of evidence where the genuineness of the original document has already been established. By allowing xerox copies as secondary evidence under specific circumstances, the Court has ensured that defaulters in cheque dishonour cases cannot escape liability on mere technical grounds.

This decision thus sets an important precedent in cheque dishonour litigation and will guide trial courts across India in dealing with similar applications for secondary evidence.