1 2025:CGHC:16813 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2448 of 2024 1 - Sunil Shukla S/o R.P. Shukla, Aged About 58 Years, R/o A-38, Chhugani Pride, Changorabhata, Teh. And District - Raipur Chhattisgarh ... Petitioner versus 1 - Tularam Patel S/o Late Shri Jageshwar Patel, Aged About 49 Years, R/o Village - Bhairadadar, Post - Lanbar, Teh. Basana, District - Mahasamund Chhattisgarh Other Address Sector-27, Block No. 20, Flat No. 401, Naya Raipur, Teh. And District - Raipur Chhattisgarh ... Respondent (Cause-title taken from Case Information System) For Petitioner : Mr. Pragalbha Sharma, Advocate. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 09-04-2025 1. Present criminal miscellaneous petition filed by the petitioner under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023, against the order dated 16-08-2024, passed by learned Judicial Magistrate First Class, Raipur, in Complaint Case No. 4831 of 2018, whereby the application filed by the complainant under Section 91 of the Code of Criminal Procedure, 1973 (in short “CrPC”) has been rejected. 2. The brief facts of the case are that the petitioner is the complainant before the learned trial Court. He filed a complaint case under Section 138 of the Negotiable Instruments Act, 1881 (in short “N.I. Act”) against the respondent/accused with the allegation that pursuant to the sale agreement between the parties with respect to the land of Kh. No. 379/12, area 5,000 Sqr. Ft., situated at village Madhav Rao Sapre Ward, Raipur, and after Digitally signed by MOHAMMED AADIL KHAN 2 various litigation, the sale consideration of Rs. 17,70,000/- has been paid to the complainant through the cheque in question, which was dishonoured by the payee bank for want of sufficient amount in the bank account of the respondent/accused. After the due process of service of the legal demand notice, the complaint case is filed. The case was registered, and a summons was issued to the respondent/accused. Details of the offence were explained and the case was proceeded for trial. During the course of the trial, an application under Section 91 of the CrPC was filed by the complainant for calling of the record of Civil suit No. 8-B/2021, from the court of the learned 7th Additional District Judge, Raipur, in which the original cheque and other documents have been filed. The application of the petitioner/complainant has been dismissed by the learned trial Court vide its order dated 16-08-2024. Hence, this petition. 3. Learned counsel for the petitioner would submit that the petitioner/complainant is prosecuting the money recovery suit against the subject cheque through the Civil Suit No. 8-B/2021, before the learned 7th Additional District Judge, Raipur, in which the original copies of the documents have been filed, and the certified copies of the said documents are filed in the present complaint case. At the time of recording evidence of the complainant, the original documents, which are available in the records of Civil Suit No. 8-B/2021, are required for confrontation of the certified copies with the original documents. Therefore, the record of Civil Suit No. 8-B/2021, from the court of the learned 7th Additional District Judge, Raipur, may be called, which is required for just decision of the case. he would also submit that the learned trial court has dismissed the application on the ground that the complainant cannot be permitted to collect the evidence through the court and it is for him to prove his case. the complainant can obtain the documents in accordance with law and can file the same in the case. he would further submit that the petitioner/complainant can’t obtain those documents because 3 the same is marked as exhibits in the Civil Suit and the petitioner/complainant has filed its certified copies, which is admissible in evidence and only to avoid controversy, he filed the application for calling of the original documents. The application of the petitioner/complainant has been wrongly rejected, and therefore, the petition may be allowed, and the impugned order dated 16-08-2024, with respect to the decision of the application of Section 91 of CrPC, may be set aside. 4. I have heard learned counsel for the petitioner and perused the documents annexed with the petition. 5. From the facts and documents of the present case, it transpires that the petitioner/complainant is prosecuting two cases, i.e. the present complaint case under Section 138 of the N.I. Act and the Civil Suit No. 8-B/2021. The original copy of the documents, i.e. cheque, bank memo, legal notice sent to the respondent/accused, postal receipt, acknowledgment, agreement, and the documents of the revenue case, etc., have been filed in the Civil Suit No. 8-B/2021. Though the petitioner/complainant has filed its certified copy, however, he apprehends that the respondent/accused may object at the time of recording evidence of the complainant and marking exhibits on the certified copy of the documents. 6. The certified copies of the documents are the Secondary Evidence as provided under Section 63 of the Indian Evidence Act, 1872. Section 65 of the Indian Evidence Act, 1872, provides that the cases in which the Secondary Evidence may be given. Section 65 (c) of the Indian Evidence Act, 1872, provides that Secondary Evidence may be given when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in a reasonable time. In the present case, the original documents are impounded in the Civil Suit and obtaining the original documents from the records of the Civil Suit will take its own time, that too after completing the necessary process of obtaining them. 4 Thus, the petitioner/complainant has the opportunity to prove the documents by leading secondary evidence, if any objection is raised by the respondent/accused during the examination of the witnesses. Further, Sections 77 and 79 of the Indian Evidence Act, 1872, provide for the production of certified copies and the presumption of their genuineness. 7. From a bare reading of the provisions of Section 91 of the CrPC, it appears that the learned trial Court has the power to summon any documents from the person in whose possession or power such documents are believed to be, requiring him to produce them before the Court. Another procedure to prove the documents is that the party may take recourse to proving the document through secondary evidence. In the present case, the petitioner/complainant, bonafidely moved his application for the calling of the original documents to avoid any controversy, but the same was rejected by the learned trial Court. 8. Although this court finds that the order passed by the learned trial court is not in accordance with law, because it is not the collection of the evidence, however, in view of the availability of another mode of process to prove the documents through secondary evidence, this court is not inclined to interfere with the impugned order. Till date, no such occasion arises, and no objection is raised by the opposite party; it is only the apprehension of the petitioner/complainant that the respondent/accused may object to admissibility and mark exhibits the documents during the evidence. 9. Therefore, the present petition is disposed of with the liberty in favour of the petitioner/complainant to take recourse to law to prove the documents by secondary evidence, if any objection is raised by the opposite party during the recording of evidence of the complainant. If any application is filed by the petitioner/complainant for leading the secondary evidence, the learned trial court shall decide the same keeping in view that the original documents are 5 filed in the Civil Suit No. 8-B/2021, pending before the learned 7th Additional District Judge, Raipur. 10. No order as to cost(s). Sd/- (Ravindra Kumar Agrawal) Judge Aadil