Evidence is the bedrock of justice. Courts can only decide disputes based on reliable proof. In documentary evidence, the original document (primary evidence) is the best proof. However, circumstances often arise where the original is lost, destroyed, or otherwise unavailable. To ensure justice is not defeated by such contingencies, the law recognises secondary evidence.
Traditionally, the Indian Evidence Act, 1872 (IEA), governed the admissibility of secondary evidence. With the introduction of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), effective from 1 July 2024, the framework has been modernised, though the principles largely remain the same.
A recurring issue in cheque dishonour litigation is whether a Xerox copy of a cheque—without the original—can be relied upon. Madras High Court in Mohammed Iqbal v. S. Manonmanian (Crl.RC(MD) No.662 of 2025) dealt squarely with this question and reaffirmed the circumstances under which photocopies can be admitted as secondary evidence.
Factual Background
The dispute originated when the respondent, S. Manonmanian, borrowed ₹5,50,000 from the petitioner, Mohammed Iqbal, on 1 February 2014. To secure repayment, a cheque bearing No. 009790, dated 28 May 2014, drawn on ICICI Bank, Virachilai Branch, Pudukottai, was issued.
When the cheque was presented on 29 May 2014, it was dishonoured the very next day for insufficiency of funds. Consequently, the petitioner issued a statutory legal notice on 14 June 2014, which was returned unserved due to the respondent’s refusal. Thereafter, proceedings under Section 138 of the Negotiable Instruments Act, 1881, were initiated in STC No.476 of 2016 before the Judicial Magistrate I, Pudukottai
During the trial, the petitioner filed Crl. M.P. No.101 of 2025 under Section 63(a) of the Evidence Act ( now Section 58(c) of BSA), seeking to admit the Xerox copy of the cheque as secondary evidence. He contended that the original cheque, after being verified by the trial court during the recording of his sworn statement on 15 July 2014, had been returned to him. Unfortunately, the cheque was misplaced by his previous advocate and could not be traced.
The trial court, however, rejected this plea on 15 April 2025, reasoning that there was insufficient proof of loss of the original cheque. Aggrieved, the petitioner approached the Madras High Court in revision.
Issues Before the High Court
The central question before Justice Shamim Ahmed of the Madras High Court was:
Can a Xerox copy of a cheque be admitted as secondary evidence under Sections 63 and 65 of the Indian Evidence Act (Sections 58 and 60 of BSA), when the original cheque was once produced, verified by the trial court, and subsequently lost?
This question had far-reaching implications for cheque dishonour litigation, where procedural lapses or inadvertent loss of documents may otherwise deprive a complainant of legitimate relief.
Arguments by the Parties
Petitioner’s Contentions
- The original cheque had been duly produced before the trial court at the time of filing the complaint, verified by the Magistrate, and returned on the same day with a sworn statement recording this fact.
- The cheque was thereafter misplaced by the petitioner’s former counsel, a fact beyond the petitioner’s control.
- Since the cheque had been verified by the court and its Xerox copy retained, the photocopy should be accepted as secondary evidence under Sections 63(2) & 65(c) of the Evidence Act/ Section 58(ii) & Section 60(c) of the Bharatiya Sakshya Adhiniyam, 2023.
- Reliance was placed on the earlier decision of the Madras High Court in Crl.RC(MD) No.161 of 2014 (2019), where, under similar circumstances, a Xerox copy of a cheque and pronote was accepted as secondary evidence.
Respondent’s Contentions
- Mere oral assertion of loss was insufficient; the petitioner failed to examine the erstwhile advocate or produce documentary proof of misplacement.
- Secondary evidence can only be admitted after comparison with the original. Since the original cheque was unavailable, prejudice would be caused to the respondent if a Xerox copy were admitted.
- The trial court was therefore justified in dismissing the petitioner’s plea.
Court’s Observations
Justice Shamim Ahmed framed his reasoning around the provisions of IEA and BSA and case law:
- Best Evidence Rule: Original documents are primary evidence and must be produced whenever available. This ensures authenticity (Section 64 IEA/ Section 59 BSA).
- Exceptions for Secondary Evidence: Both IEA Section 65(c) and BSA Section 60(c) permit secondary evidence when the original is lost or destroyed, not due to the party’s fault.
- Judicial Verification of Original Cheque: In this case, the original cheque was produced before the Magistrate, verified, and returned, with Xerox retained on file. This prior verification satisfied the requirement of reliability under Section 63 IEA / Section 58 BSA.
- Loss Beyond Control: The petitioner’s explanation—that his counsel misplaced the cheque, though uncorroborated by affidavit, was supported by the judicial record of earlier verification. This was sufficient to invoke Section 65(c) IEA / Section 60(c) BSA.
- Avoiding Miscarriage of Justice: Denying admission of the Xerox copy would unjustly deprive the complainant of a remedy under Section 138 NI Act, despite a clear earlier production of the cheque.
- Precedent: The Court referred to Crl.RC(MD) No.161 of 2014 (2019), where similar facts justified acceptance of photocopies.
Decision
Madras High Court held:
- A Xerox copy of a cheque is admissible as secondary evidence when the original was earlier produced, verified by the trial court, and later lost.
- The trial court erred in dismissing the petitioner’s plea by ignoring Sections 63–65 IEA .
- The impugned order was set aside; the Xerox copy must be admitted as secondary evidence, and the trial expedited.
Key Highlights of the Decision
Justice Shamim Ahmed stated:
In the present case, the original cheque is lost. Section 65(c) of the Indian Evidence Act permits the admissibility of the secondary evidence, if the original document is lost. Thus, the provisions of Section 65(c) of the Indian Evidence Act are also met.
Hence, this Court is of the view that the Trial Court, having given a finding that after recording of sworn statement of the Petitioner on 15.07.2014 and after making an endorsement to that effect in the sworn statement, the Petitioner had taken back the original cheque, which would mean that the Trial Court itself verified the original cheque in question and satisfied with the same and returned the same to the Petitioner, ought to have received the xerox copy of the original cheque as a secondary evidence, by allowing Crl. M.P.No.101 of 2025, filed by the Petitioner, seeking to receive the xerox copy of the original cheque as secondary evidence, but, it failed to do so, resulting in great miscarriage of justice.
Legal Analysis
1. Reconciling Primary Evidence Rule with Practical Realities
The best evidence rule ensures authenticity, but its rigidity can sometimes obstruct justice. Madras High Court’s approach recognises that once a document has been officially verified by a court, subsequent loss should not deprive a party of relief. This balances procedural safeguards with substantive justice.
2. Evidentiary Value of Photocopies
While a photocopy does not have the same evidentiary weight as the original, its acceptance as secondary evidence does not mean automatic proof. It only means the document is admissible. Its probative value will still be tested during trial, subject to cross-examination and corroboration.
3. Safeguards Against Abuse
The judgment implicitly recognises that acceptance of Xerox copies must not open floodgates for fabricated evidence. The safeguards lie in:
- Judicial verification at an earlier stage.
- Requirement of endorsements or records proving production of the original.
- Judicial discretion in weighing the evidentiary value.
4. Relevance in Cheque Dishonour Cases
Section 138 NI Act cases are document-centric. Cheques are the foundational evidence. If originals are lost after being duly produced, complainants would otherwise face injustice and denial of remedy. The ruling thus ensures that the intent of the NI Act—ensuring credibility of commercial transactions—is preserved.
Conclusion
Madras High Court’s ruling in Mohammed Iqbal v. S. Manonmanian (Crl.RC(MD) No.662 of 2025) marks an important development in evidentiary jurisprudence. It clarifies that Xerox copies of cheques are admissible as secondary evidence when the original was earlier produced and verified but later lost.
By striking down the trial court’s refusal, the Court safeguarded the principle that procedural technicalities must not defeat substantive justice. This ensures that litigants in cheque dishonour cases are not unfairly prejudiced due to inadvertent loss of documents, while still preserving safeguards against abuse.
The decision harmonises the best evidence rule with the realities of litigation, ensuring that justice remains the guiding star of judicial proceedings.
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