When Original Is Lost, Xerox Can Step In: Madras High Court Allows Secondary Evidence in Cheque Dishonour Case

“Trial Court itself verified and returned the original cheque to the complainant… Thus, the xerox copy satisfies Section 63 and is admissible under Section 65(c) of the Indian Evidence Act” —  In a decisive reaffirmation of evidentiary principles, the Madurai Bench of the Madras High Court setting aside the Pudukottai Magistrate’s order which had rejected a petitioner’s plea to accept a xerox copy of a dishonoured cheque as secondary evidence, after the original was allegedly lost.

Justice Shamim Ahmed held that the Trial Court had erred in mechanically rejecting secondary evidence, despite itself recording that the original cheque had been seen, verified, and returned to the complainant during the initial proceedings. The Court ruled that both Sections 63(2), 63(3) and Section 65(c) of the Indian Evidence Act were clearly satisfied in the present case, and the refusal to accept secondary evidence amounted to a miscarriage of justice.

“Trial Court Verified Original and Retained Copy—Now Denying Its Own Record Is Inadmissible in Law”

The criminal case arose from a complaint under Sections 138 and 147 of the Negotiable Instruments Act filed by Mohammed Iqbal, alleging that the respondent had borrowed ₹5,50,000 and issued a cheque as security, which was dishonoured due to insufficient funds.

The pivotal controversy stemmed from the complainant's claim that the original cheque was misplaced by his former counsel, and that he sought to produce a xerox copy as secondary evidence. The Trial Court rejected the application, citing lack of proof of loss and non-compliance with evidentiary standards.

Justice Ahmed, however, found that: “The Trial Court itself, on 15.07.2014, recorded the complainant’s sworn statement, verified the original cheque, and returned it after retaining a xerox copy… The endorsement made by the Trial Court in the record corroborates this.”

The High Court observed that once the Trial Court had satisfied itself with the authenticity of the original cheque and had allowed it to be returned, it could not later refuse admission of its copy, particularly when the xerox bore the judicial endorsement of the Magistrate.

“Section 65(c) of the Indian Evidence Act Exists to Protect Those Unable to Produce Originals Due to Loss, Not Fault”

The Court referred extensively to Sections 63 and 65 of the Indian Evidence Act. It emphasized that secondary evidence becomes admissible when the original is lost or destroyed, provided the copy was made from or compared with the original, or created through mechanical processes ensuring accuracy.

Justice Ahmed observed: “Section 65 has been enacted to safeguard the interest of a party unable to produce the original. When the sworn statement and endorsement prove the original’s verification and return, the law steps in to admit secondary evidence.”

The Court also cited an earlier coordinate bench judgment in Crl.RC(MD)No.161 of 2014, which dealt with similar circumstances and permitted the marking of photocopies as exhibits when the originals were returned after sworn verification but later lost.

“Mechanical Rejection of Secondary Evidence Despite Judicial Endorsement Is a Miscarriage of Justice”

Calling the Trial Court’s approach “rigid and legally unsustainable,” the High Court noted that the Trial Court had ignored its own findings recorded in the impugned order — that the cheque was received, verified, and returned.

“The Trial Court, having made findings in paragraphs (iv) and (v) of its order about the original cheque’s verification and return, ought to have admitted the xerox copy as secondary evidence.”

Justice Ahmed concluded that procedural safeguards existed not to frustrate justice, but to ensure its delivery. Rejecting secondary evidence in the face of documented and endorsed verification would cripple the petitioner’s right to prove the transaction.

Trial Court Ordered to Admit Xerox and Resume Trial

The Court allowed the Criminal Revision, set aside the Magistrate’s order dated 15.04.2025, and directed the Judicial Magistrate I, Pudukottai, to admit the xerox copy of the cheque as secondary evidence and expedite the trial in STC.No.476 of 2016.

Date of Decision: 16.09.2025