Photocopy of Missing Cheque Can Be Marked as Evidence: Madras High Court Allows Secondary Evidence in Cheque Dishonour Case

“Denial of Secondary Evidence Without Assessing Surrounding Documents Causes Miscarriage of Justice”, In a notable ruling Madras High Court set aside a Magistrate’s order that refused to permit marking of a photocopy of a cheque in a cheque dishonour prosecution under Section 138 of the Negotiable Instruments Act, 1881. Justice M. Nirmal Kumar allowed the complainant to produce a photostat copy of the original cheque under Section 65 of the Indian Evidence Act, 1872, and directed the trial court to conclude the long-pending case within two months.

Emphasizing that the respondent had not denied the existence of the cheque, but merely disputed the handwriting and ink colour, the High Court observed that all such defences can be tested during the trial—but that cannot be a reason to deny secondary evidence where the original cheque is genuinely unavailable.

Cheque for ₹37 Lakhs Allegedly Issued Towards Loan—Original Missing at Stage of Chief Examination

The complainant company had initiated prosecution under Section 138 of the Negotiable Instruments Act in 2014, alleging that the respondent (an ex-employee) had borrowed ₹37 lakhs for personal purposes and issued a cheque dated 29.07.2014 drawn on Indian Overseas Bank. The cheque allegedly bounced upon presentation.

When the matter reached the stage of chief examination, the complainant discovered that the original cheque was missing and filed a petition under Section 65 of the Indian Evidence Act seeking permission to mark a photocopy as secondary evidence. The trial court, however, rejected the application, citing absence of return memo, vague explanation regarding loss of the cheque, and objections from the accused.

Trial Court Erred in Mechanically Rejecting Petition—Cheque’s Existence Not Disputed in Entirety

Reversing the trial court’s order, Justice M. Nirmal Kumar noted that the accused did not deny the existence of the cheque but only raised objections related to its ink and handwriting. The Court found that the cheque was supported by other corroborative documents on record:

“Apart from the cheque, the respondent executed a promissory note, which was marked as Ex.P1. Legal notice was issued and received (Exs.P6 & P7), and a reply notice (Ex.P8) was given by the respondent. The respondent has not denied the cheque in its entirety.”

The Court further clarified that the accused could fully raise and argue his defences at the trial stage, and allowing the photocopy would not prejudice his case:

“With regard to other disputed facts, the respondent is entitled to raise the same during trial. All the defence is left open to the respondent.”

Cheque is a Document—Not a Sacred Artefact: Court Invokes Principles of Evidence Act

Invoking Section 65 of the Indian Evidence Act, the Court underlined that where the original document is lost or misplaced and its existence is not in dispute, secondary evidence such as a photocopy is admissible in the interest of justice.

“Where original cheque is lost and its existence is corroborated by other documents... photocopy is admissible under Section 65 of Evidence Act. Respondent free to challenge genuineness during trial.”

The Court cautioned against mechanically refusing such applications in cheque cases, particularly where a complainant may suffer unjust hardship due to the inadvertent loss of a negotiable instrument.

A Decade of Delay in NI Act Trial: High Court Orders Day-to-Day Hearing and Completion Within Two Months

Lamenting the excessive delay in a case pending since 2014, the Court directed the Judicial Magistrate at Sriperumbudur to dispose of the matter on a day-to-day basis and complete the trial within two months from receipt of the order:

“Finding that the case is pending from the year 2014 and it is almost 10 years, this Court directs the trial Court to post the case on a day-to-day basis, proceed with the trial and complete the trial within a period of two months.”

Procedural Rigour Cannot Trump Substantive Justice—Cheque Dishonour Trials Must Not Be Thwarted by Technicalities

The judgment provides critical clarity in cheque dishonour trials where original instruments are lost—particularly in long-standing disputes. It reinforces the principle that courts must not allow technicalities or procedural lapses to defeat substantive justice when the existence of the transaction is otherwise documented.

By allowing the photostat copy to be marked and preserving the accused’s right to challenge its authenticity, the High Court has ensured that the trial proceeds fairly without frustrating the intent of Section 138 of the Negotiable Instruments Act.

Date of Decision: 14 November 2025