Bismi Azhar v. State of Kerala and Sajith T S

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. G. Ajithkumar
Judgment Date: 2023-12-21
Court Decision / Holding: Revision petitions are dismissed, with observations.
Final Disposition: Revision petitions dismissed, with observations.

Parties to the Case

Appellants / Petitioners

Bismi Azhar

Respondents

State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam
Sajith T S

Legal Representation & Advocates

Counsels for Petitioners

• G. P. Shinod Govind Padmanabhan
• Ajit G Anjarlekar
• Atul Mathews
• Gayathri S. B.

Counsels for Respondents

• M. R. Anandakuttan
• M. Hemalatha
• Mahesh Anandakuttan
• M. J. Sajitha
• Maya M. N
• Seena C

Case Synopsis & Summary

This is a set of criminal revision petitions under Section 397 r/w 401 CrPC, 1973, challenging orders of the Temporary Special Court, JMFC, Thiruvananthapuram, permitting the complainants to produce photocopies of cheques as secondary evidence in trials under Section 138 of the Negotiable Instruments Act, 1881. The petitioner, BISMI AZHAR, contends that the orders allowing secondary evidence were incorrect at the threshold, since the cheque itself is the basis of the prosecution and no baseline to admit photocopies exists; they argue the petitions are not maintainable as the orders are interlocutory. The respondents argue that where cheques are lost, it would be improper to deny the complainant an opportunity to substantiate the grievance by adducing secondary evidence under Section 65 of the Indian Evidence Act; photocopies were produced as secondary evidence because the originals were misplaced. The High Court records that the Magistrate permitted secondary evidence, and that the question of admissibility is to be decided at trial. The court also notes that the order is interlocutory under Section 397(2) CrPC, and there is no bar to granting permission to adduce secondary evidence. Ultimately, the petitions are dismissed with observations, relying on Madhu Limaye and Chitaranjan v. Jayarajan as guiding authorities. The decision preserves trial-stage assessment of evidence.

Provisions of Law Cited

Section 397 r/w 401 of CrPC, 1973Section 138 of the Negotiable Instruments Act, 1881Section 65 of the Indian Evidence ActSection 65(C) of the Indian Evidence ActSection 397(2) of CrPC

Legal Doctrines & Maxims

Interlocutory vs final order doctrine (Madhu Limaye v. State of Maharashtra, 1977 (4) SCC 551)
Photocopy admissibility as secondary evidence under Section 65 of the Indian Evidence Act (as discussed in Chitaranjan v. Jayarajan, 2005 KHC 132)

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitions contend that the impugned orders permitting secondary evidence are incorrect at threshold, since the prosecution is based on the original cheques and there is no bonafide basis to admit photocopies; the order is interlocutory and not final; admissibility of secondary evidence should await trial.

Contentions of Respondents

The respondents argue that when originals are lost it is permissible to admit photocopies as secondary evidence under Section 65 of the Indian Evidence Act; the decision to permit secondary evidence is appropriate at this stage, and the ultimate admissibility will be determined at trial; the order is not final and the matter is properly within the trial framework.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Chitaranjan v. Jayarajan	2005 KHC 132	Positive	High Court held that if cheques are lost it would be improper to deny the complainant an opportunity to substantiate his grievance by adducing secondary evidence as permitted under Section 65 of the Indian Evidence Act.
Madhu Limaye v. State of Maharashtra	1977 (4) SCC 551	Positive	Used to determine the criterion of whether an order is interlocutory; an order which does not conclude proceedings is interlocutory under CrPC 397(2).

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 21[ST] DAY OF DECEMBER 2023 / 30TH** ## **AGRAHAYANA, 1945** **CRL.REV.PET NO.578 OF 2023 AGAINST THE ORDER DATED 20.04.2023 IN CMP 1174/2023 IN CC NO.3247/2015 ON THE FILES OF THE TEMPORARY SPECIAL COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS FOR THE TRIAL OF CASES U/S 138 OF N.I Act, THIRUVANANTHAPURAM** ## **- REVISION PETITIONER/COUNTER PETITIONER/ACCUSED:** **BISMI AZHAR AGED 47 YEARS D/O.SARASSAMMA, RESIDING AT SREE MANGALAM, ALAPPURAM LANE, THIRUMALA POST, THIRUVANANTHAPURAM, PIN - 695006 BY ADVS. G.P.SHINOD GOVIND PADMANAABHAN AJIT G ANJARLEKAR ATUL MATHEWS GAYATHRI S.B.** ## **- RESPONDENTS/STATE AND PETITIONER/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 SAJITH T S AGED 51 YEARS S/O.THANKAPPAN, RESIDING AT T C 17/2441 (2), VAIKUNDAM, THYCAUD POST, THIRUVANANTHAPURAM, PIN - 695014 BY ADVS. M.R.ANANDAKUTTAN M.HEMALATHA(K/358/1977) MAHESH ANANDAKUTTAN(K/1234/2004) M.J.SAJITHA(K/000218/2006)** **SMT MAYA M.N.-PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21.12.2023, ALONG WITH Crl.Rev.Pet.580/2023, 582/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.R.P.No.578 of 2023 and conn cases ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 21[ST] DAY OF DECEMBER 2023 / 30TH** ## **AGRAHAYANA, 1945** **CRL.REV.PET NO.580 OF 2023** **AGAINST THE ORDER DATED 20.04.2023 IN CMP 1171/2023 IN CC NO.1321/2015 ON THE FILES OF THE TEMPORARY SPECIAL COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS FOR THE TRIAL OF CASES U/S 138 OF N.I Act, THIRUVANANTHAPURAM** ## **REVISION PETITIONER/COUNTER PETITIONER/ACCUSED:** **BISMI AZHAR AGED 47 YEARS D/O.SARASSAMMA, RESIDING AT SREE MANGALAM, ALAPPURAM LANE, THIRUMALA POST, THIRUVANANTHAPURAM, PIN - 695006** **BY ADVS. G.P.SHINOD GOVIND PADMANAABHAN AJIT G ANJARLEKAR ATUL MATHEWS GAYATHRI S.B.** ## **RESPONDENT/STATE AND PETITIONER/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** **2 SAJITH T S AGED 51 YEARS S/O.THANKAPPAN, RESIDING AT T C 17/2441 (2), VAIKUNDAM, THYCAUD POST, THIRUVANANTHAPURAM, PIN - 695014** **BY ADVS. M.R.ANANDAKUTTAN M.HEMALATHA(K/358/1977) MAHESH ANANDAKUTTAN(K/1234/2004) M.J.SAJITHA(K/000218/2006)** **SMT MAYA M N - PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21.12.2023, ALONG WITH Crl.Rev.Pet.578/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 Crl.R.P.No.578 of 2023 and conn cases ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 21[ST] DAY OF DECEMBER 2023 / 30TH** ## **AGRAHAYANA, 1945** **CRL.REV.PET NO. 582 OF 2023** **AGAINST THE ORDER DATED 20.04.2023 IN CMP 1173/2023 IN CC NO.1240/2015 ON THE FILES OF THE TEMPORARY SPECIAL COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS FOR THE TRIAL OF CASES U/S 138 OF N.I Act, THIRUVANANTHAPURAM** ## **- REVISION PETITIONER/COUNTER PETIONER/ACCUSED:** **BISMI AZHAR AGED 47 YEARS D/O.SARASSAMMA, RESIDING AT SREE MANGALAM, ALAPPURAM LANE, THIRUMALA POST, THIRUVANANTHAPURAM, PIN - 695006** **BY ADVS. G.P.SHINOD GOVIND PADMANAABHAN AJIT G ANJARLEKAR ATUL MATHEWS GAYATHRI S.B.** ## **RESPONDENTS/STATE AND PETITIONER/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** **2 SAJITH T S AGED 51 YEARS S/O.THANKAPPAN, RESIDING AT T C 17/2441 (2), VAIKUNDAM, THYCAUD POST, THIRUVANANTHAPURAM, PIN - 695014** **BY ADVS. M.R.ANANDAKUTTAN M.HEMALATHA(K/358/1977) MAHESH ANANDAKUTTAN(K/1234/2004) M.J.SAJITHA(K/000218/2006)** **SMT.MAYA M N - PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21.12.2023, ALONG WITH Crl.Rev.Pet.578/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 Crl.R.P.No.578 of 2023 and conn cases ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 21[ST] DAY OF DECEMBER 2023 / 30TH** ## **AGRAHAYANA, 1945** **CRL.REV.PET NO. 585 OF 2023** **AGAINST THE ORDER DATED 20.04.2023 IN CMP 1172/2023 IN CC NO.2778/2015 ON THE FILES OF THE TEMPORARY SPECIAL COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS FOR THE TRIAL OF CASES U/S 138 OF N.I Act, THIRUVANANTHAPURAM** ## **REVISION PETITIONER/COUNTER PETITIONER/ACCUSED:** **BISMI AZHAR AGED 47 YEARS D/O.SARASSAMMA, RESIDING AT SREE MANGALAM, ALAPPURAM LANE, THIRUMALA POST, THIRUVANANTHAPURAM, PIN - 695006 BY ADVS. G.P.SHINOD GOVIND PADMANAABHAN AJIT G ANJARLEKAR ATUL MATHEWS GAYATHRI S.B.** ## **RESPONDENTS/STATE AND PETITIONER/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 SAJITH T S AGED 51 YEARS S/O.THANKAPPAN, RESIDING AT T C 17/2441 (2), VAIKUNDAM, THYCAUD POST, THIRUVANANTHAPURAM, PIN - 695014** **BY ADVS. M.R.ANANDAKUTTAN M.HEMALATHA(K/358/1977) MAHESH ANANDAKUTTAN(K/1234/2004) M.J.SAJITHA(K/000218/2006)** **SMT SEENA C – PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21.12.2023, ALONG WITH Crl.Rev.Pet.578/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 5 Crl.R.P.No.578 of 2023 and conn cases ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.R.P.Nos.578, 580, 582 and 585 of 2023 ----------------------------------------------------------Dated this the 21[st] day of December, 2023** ## **O R D E R** These revision petitions under Section 397 r/w 401 of the Code of Criminal Procedure, 1973(Code) are filed challenging similar orders of the temporary Special Court of the Judicial Magistrate of First Class, for the trial of cases under Section 138 of Negotiable Instruments Act, 1881 (NI ## Act) Thiruvananthapuram. The order reads: “Petition is filed to admit true copy of cheque. Complainant counsel submitted that original cheque is lost. The photocopy can be admitted as secondary evidence. In **Chitaranjan v. Jayarajan [2005 KHC 132]** , Hon'ble High Court held that, if the cheques are lost it would be improper to deny the complainant an opportunity to substantiate his grievance by adducing secondary evidence as permitted under Section 65 of Evidence Act. In the light of the above decision petition is allowed. Petitioner is permitted to produce secondary evidence of cheque under Section 65(C) of the Indian Evidence Act. Hence the petition is allowed.” 2. The accused in the respective cases filed this 6 Crl.R.P.No.578 of 2023 and conn cases revision petitions aggrieved by the said order. 3. Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel for the 2[nd] respondent. 4. The 2[nd] respondent has filed respective complaints alleging commission of offence punishable under Section 138 of the NI Act by the petitioner. The 2[nd] respondent filed respective petitions seeking permission to produce photocopy of the original cheque as secondary evidence. It was contended that the cheques were misplaced and despite earnest efforts, the same could not be traced. On that ground, permission was sought to adduce secondary evidence. Photocopies of the respective cheques were produced as secondary evidence. 5. The petitioner opposed that petition contending that since the very basis of the prosecution is the cheque, no permission could be granted to produce a photocopy as secondary evidence. It is further contented that without any bonafides, such petitions were filed. 6. What the learned Magistrate permitted as per the 7 Crl.R.P.No.578 of 2023 and conn cases impugned orders is to produce secondary evidence. Secondary evidence can be produced before a court only in terms of Section 65 of the Evidence Act. Whether the circumstance mooted by the 2[nd] respondent to invoke the provisions of Section 65 of the Evidence Act really exists is a matter to be decided by the court at the time of trial and recording of evidence. Permission to produce a document cannot be refused at the threshold. The Court can receive or refuse to receive secondary evidence only when the circumstance enabling the person to adduce secondary evidence is proved. In that view of the matter, permission given as per the impugned order cannot be said to be incorrect. The order is not to receive the secondary evidence, instead, it is only a permission to the 2[nd] respondent to adduce secondary evidence. Whether or not that evidence should be admitted in evidence, is a question to be decided after appreciation of the relevant evidence. 7. That apart, the impugned order cannot be treated as an intermittent or final order, but only an interlocutory order coming within the purview of Section 8 Crl.R.P.No.578 of 2023 and conn cases 397(2) of the Code. As held in **Madhu Limaye v. State of Maharashtra [1977 (4) SCC 551]** , the criteria to decide whether an order is interlocutory or not is that whether the order rejecting the plea of the accused on a point, when accepted, will conclude the particular proceedings. Viewed so, the impugned order can only be an interlocutory order and therefore this revision petition is not maintainable in law also. In the circumstances, these revision petitions are dismissed, however, with the aforesaid observations. **Sd/P.G. AJITHKUMAR JUDGE** PV 9 Crl.R.P.No.578 of 2023 and conn cases ## **APPENDIX OF CRL.REV.PET 580/2023** ## **RESPONDENTS ANNEXURES** **Annexure-R2(a)** **Annexure-R2(b)** **A true copy of the Written Statement in O. S. No. 810 of 2014 before the Munsiff's Court of Thiruvananthapuram dated nil (Re-numbered as O. S. No. 171 of 2016 before the Subordinate Judge's Court of Thiruvananthapuram) A true copy of the affidavit dated 15-02-2023** 10 Crl.R.P.No.578 of 2023 and conn cases ## **APPENDIX OF CRL.REV.PET 578/2023** **RESPONDENT ANNEXURES Annexure-R2(a) A true copy of the original plaint in O. S. No. 810 of 2014 dated 19-042014 before the Munsiff's Court of Thiruvananthapuram**