Photocopy of Misplaced Cheque Can Be Accepted as Secondary Evidence in Cheque-Bounce Cases: Madras High Court Clarifies

Posted On - 4 November, 2025 • By - Nivedita Bhardwaj

Case: Mohammed Iqbal v. S. Manonmanian (Crl.RC(MD) No. 662 of 2025, decided 16 Sept 2025 by Justice Shamim Ahmed)

Key Legal Issue: Whether a Xerox/photocopy of a cheque may be admitted as secondary evidence under the Indian Evidence Act, 1872 (IEA) in proceedings under Sections 138/147 of the Negotiable Instruments Act, 1881 (NI Act) when the original was once produced and verified but later lost.

Introduction & Background

In cheque-dishonour litigation, the authenticity and availability of the original cheque is often a determinative factor. The best evidence rule under the Evidence Act dictates that where a document is required, the original should typically be produced (Section 64 IEA). However, there are established exceptions under Sections 63 and 65 of the IEA allowing for secondary evidence, including copies, when the original cannot be produced.

In the present case, the Madras High Court addressed a factual scenario where a complainant in an NI Act prosecution had produced the original cheque at the outset, the trial court had verified it and returned it (after endorsing its production), but the original was subsequently lost (allegedly by his earlier advocate). The complainant then sought to admit a xerox (photocopy) of the cheque as secondary evidence. The trial magistrate refused the request on the sole ground that no independent proof of the loss of the original was placed on record. On revision, the High Court held that the trial court should have admitted the xerox copy, and set aside the order.

The ruling is significant because it clarifies how and when secondary evidence (a copy) may be admitted in cheque-bounce cases and helps navigate the tension between procedural strictness and substantive justice.

Facts of the Case

  • The respondent borrowed ₹5,50,000 from the petitioner on 1 February 2014. The respondent issued cheque no. 009790 dated 28 May 2014 drawn on ICICI Bank, Virachilai Branch, Pudukottai, as security.
  • The cheque was presented for encashment on 29 May 2014, and was returned on 30 May (or 30.05.2014) with the endorsement “Funds Insufficient”.
  • Notice under Section 138 NI Act was sent on 14 June 2014, returned unserved as the respondent refused to accept it.
  • Complaint under Sections 138 and 147 NI Act filed in STC No. 476 of 2016 before the Judicial Magistrate I, Pudukottai.
  • During the trial, the petitioner filed a petition (Crl.MP No. 101 of 2025) under Section 63(a) IEA for permission to produce the xerox copy of the cheque as secondary evidence, on the ground that the original cheque had been lost (the petitioner’s former advocate was alleged to have misplaced it).
  • The trial court rejected the petition on 15 April 2025 purely on the ground that the petitioner did not produce evidence to prove the loss of the original cheque by the advocate.
  • On revision, the High Court found that the trial court itself had verified the original cheque (as endorsed in the sworn statement dated 15 July 2014) and had retained the xerox copy. The High Court held that under Sections 63(2) & (3) and 65(c) IEA the xerox copy is admissible as secondary evidence, set aside the order, and directed the trial court to admit the xerox and expedite the trial.
  • Section 64 IEA states the general rule: “Documents must be proved by primary evidence except in the cases hereinafter mentioned.”
  • Sections 63 & 65 IEA provide for secondary evidence, where primary evidence is unavailable.
  • Section 63 defines what constitutes “secondary evidence” — including (2) copies made from the original by mechanical processes which themselves insure accuracy, and (3) copies made from or compared with the original.
  • Section 65 lists the cases in which secondary evidence may be given for instance, if the original has been destroyed or lost, or is otherwise unavailable through no fault of the offering party (65 (c)).
  • The general principle: production of the original is preferred, but when that is not feasible, and the conditions are met, secondary evidence can be admitted so as not to defeat justice.

NI Act Context – Cheque-Bounce Proceedings

  • Under Section 138 NI Act, if a cheque issued by a drawer is returned unpaid due to insufficiency of funds (or other reason), the payee may initiate criminal proceedings. The success of the prosecution depends on proving execution/issuance of the cheque, presentation, dishonour, notice and failure to pay.
  • Documentary evidence (cheque & related notice) plays a critical role. If the original cheque is lost, the question arises whether a copy can substitute in evidence.

Analysis of the Judgment

Verification of Original Document by the Court

A key factor in the judgment is that the original cheque was physically produced before the trial court at the time of filing the complaint, the sworn statement of the petitioner on 15 July 2014 expressly recorded that the original was produced and retained a xerox copy. The trial court made an endorsement and returned the original to the petitioner. The High Court emphasised this verification and endorsement as satisfying the requirements of Sections 63(2)&(3) IEA i.e., the copy was made from the original (mechanical copy) or compared with the original and retained.

Loss of Original & Secondary Evidence

Having found that the original was indeed produced and verified, the High Court turned to Section 65(c) IEA: the original was lost (because the advocate misplaced it). Under the law, if the original document is lost or destroyed through no fault of the party, secondary evidence is permissible.

Trial Court’s Error & Prejudice

The trial court’s error, as per the High Court, was in rejecting the petition solely because there was no “independent proof” of the loss of the original (such as affidavit of advocate or search effort). The High Court held that since the original had been produced and verified, the absence of additional proof of loss ought not to preclude admissibility of the xerox copy. The refusal resulted in a miscarriage of justice.

Safeguards & Limitations

  • The Court emphasised that admission of a photocopy does not automatically dictate its weight; the respondent retains the right to challenge authenticity, test it by cross-examination, raise doubts of fabrication etc.
  • The decision is fact-sensitive: key is prior production and verification of original (with endorsements, record). Without that step, admissibility would be highly doubtful.
  • The judgment also underscores that the objective of the NI Act—to provide credible, efficient remedy in cheque-bounce matters—must be balanced with procedural fairness; technicalities should not vitiate substantive rights.

Implications of the Judgment

  • Practical take-away for litigants: In cheque-dishonour prosecutions, if an original cheque has been produced and verified at an early stage (with court endorsement, retention of copy), then even if the original is subsequently lost, the complainant can seek to rely on the xerox/photocopy as secondary evidence under IEA.
  • Guidance for trial courts: Trial courts ought not to reject secondary evidence simply on grounds of no formal proof of loss if the file shows production and verification of the original; instead they should evaluate admissibility under Sections 63 & 65 IEA and then determine weight.
  • Risk mitigation for advocates: Legal practitioners should ensure that when original documents (cheques, promissory notes) are produced, the court record reflects verification, endorsements, retention of copies, and safe-keeping of the original thereafter. This protects parties from later loss of the original.
  • Broader evidence jurisprudence: The ruling strengthens the principle that the best evidence rule is not absolute and must be interpreted in a way that upholds justice rather than become a tool for unfair dismissal of bona fide claims.
  • SEO-relevant keywords: cheque-bounce cases, secondary evidence, photocopy admissibility, Indian Evidence Act Sections 63 & 65, Negotiable Instruments Act Section 138, Madras High Court judgment, how to admit xerox copy cheque, lost original cheque evidence.

Conclusion

The Madras High Court’s ruling in Mohammed Iqbal v. S. Manonmanian serves as a landmark in reconciling the procedural strictures of the Evidence Act with the remedial objectives of the NI Act. By holding that a xerox copy of a cheque is admissible as secondary evidence when the original was produced, verified and later lost, the Court ensures that technicalities do not thwart justice. At the same time, the decision preserves doctrinal rigor by insisting on verification and endorsed records, leaving evaluation of weight to trial. For practitioners and litigants in cheque-bounce litigation, this judgment provides a practical roadmap to address the perennial issue of missing originals.