Photocopy Of Misplaced Cheque Can Be Accepted As Secondary Evidence In Cheque Bounce Cases: Madras High Court

Justice Shamim Ahmed observed that when the trial judge had recorded the sworn statement in which he had made an endorsement with respect to the original cheque before giving it back to the complainant, he should have accepted the xerox copy of the original cheque as secondary evidence.

“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 court said.

The court was hearing a revision petition against an order of the Pudukottai Judicial Magistrate refusing to accept the xerox copy of the cheque as secondary evidence since the original had been lost.

The petitioner, Mohammed Iqbal submitted that he had lent a sum of Rs. 5,50,000 to the respondent on February 1, 2014 for which the respondent had given him a cheque drawn on the ICICI bank as security. When the cheque was presented for encashment, it was returned with the endorsement “Funds Insufficient”. Though a legal notice was sent, it was returned and the respondent refused to accept it. Hence, Iqbal approached the court under Section 138 and Section 147 of the Negotiable Instruments Act.

He argued that after filing the complaint under Section 138 of the NI Act and after producing the original cheque, the trial court had recorded his sworn statement, and after verifying the original cheque and after retaining the xerox copies of all documents, the trial judge had returned the original cheques. Iqbal submitted that his petition to accept the photocopy was rejected on the sole ground that there was no evidence to prove that the cheque was lost by his Advocate, who misplaced it with the case bundle.

He argued that since he had produced the original cheque at the time of the sworn statement, testing the bona fide of the cheque and also an endorsement to that effect was made by the trial court, the trial court ought to have accepted the xerox copy of the cheque in question as secondary evidence as per the provisions of Section 63(2) and 65 of Indian Evidence Act.

The respondent submitted that the sworn statement was recorded by the trial court 10 years ago. He argued that, as per Section 63 of the Indian Evidence Act, Iqbal had failed to examine the earlier counsel who had lost the original cheque and failed to substantiate his claim. Thus, he argued that the trial court had rightly rejected the petition.

Discussing Sections 63 and 65 of the Indian Evidence Act 1872, the court noted that, as per the general principle, when an original document exists, it should be produced as it is the best evidence. However, when an original is lost or destroyed, the secondary evidence is admissible.

In the present case, the court noted that the trial court had returned the original cheque after due enquiry, satisfaction, and comparison. Thus, the court held that when the original document was lost, the court ought to have received the xerox copy of the document.

The court thus allowed the plea and set aside the order of the judicial magistrate.

Counsel for the Petitioner: Mr. A. Balaji

Counsel for the Respondent: Ms. S. Prabha for Mr. D. Ramesh Kumar

Case Title: Mohammed Iqbal v. S Manonmanian

Citation: 2025 LiveLaw (Mad) 317

Case No: Crl. RC(MD)No.662 of 2025