DOCUMENTARY EVIDENCE

Sasi K.G.

01. INTRODUCTION

Indian Evidence Act, 1872 is the law providing for how evidence is received in Courts of Law including both Civil and Criminal Courts. Chapter V of the Indian Evidence Act, 1872 describes various provisions of Documentary Evidence. Unlike Oral Evidence and Material Objects, Documentary Evidence has to pass through a series of tests which are the subject matter of this paper.

01. PROOF OF CONTENTS OF DOCUMENTS

Section 61 of the Indian Evidence Act, 1872  runs as follows,

“S. 61. The contents of documents may be proved either by primary or by secondary evidence.”

Documentary evidence means all documents produced for the inspection of the Court (s. 3). Documents are of two kinds: public and private. Section 74 gives a list of documents which are regarded as public documents. All other documents are private. The production of documents in Courts is regulated by the Civil Procedure Code and the Criminal Procedure Code.

As per Murarka Properties P. Ltd. v. Beharilal Murarka, AIR 1978 SC 300: 1978(1) SCC 109 the contents of documents must be proved either by the production of the document which is called primary evidence, or by copies or oral accounts of the contents, which are called secondary evidence. Where there is documentary evidence oral evidence is not entitled to any weight. The section is based upon the principle that the "best evidence in the possession of power of the party must be produced. What the best evidence is, it must depend upon circumstances. As per Macdonnel v. Evans, (1852) 21 UCP 141: 18 LT 241 : 138 ER 742 generally speaking, the original document is the best evidence. This is the general and ordinary rule; the contents can only be proved by the writing itself."

As per Trial of Queen Carloline, (1820) 2 Bro & B 286: 129 ER 976 at p. 977 The contents of every written paper are, according to the ordinary and well established rules of evidence, to be proved by the paper itself, and by that alone, if the paper be in existence.

As per Ram Prasad v. Raghunandan Prasad, (1885) 7 All 738, 743, the section lays down that the contents of the document may be proved either by primary or secondary evidence and the rule means that there is no other method allowed by law for proving the contents of documents. As per Balwant v. Mainabai, AIR 1991 MP 11 The method of proof so generally authorised by the section becomes available whenever special requirements like those of proving attested documents cannot be satisfied.

As per  Purnabashi Mishra v. Raj Kumari Mishra; AIR 1995 Ori 284, where a document was not required to be registered, it was admissible in evidence, even though unregistered.

As per Kripa Shankarv. Gurudas, AIR 1995 SC 2152 an ex parte affidavit without affording an opportunity to the other party to test the veracity of its contents by cross-examination, cannot be a proof of its contents.

As per D.B. Thakur v. State of Gujarat, 1995 Cr LJ 3751 (Guj) where the executant of a document admitted its execution, the same could be received in evidence. Where the execution of a promissory note was denied, it was held that proof would be needed through the scribe and also that of an expert as to the thumb impression. As per P.M. Veeravu v. K. Moiudeen, 1996 AIHC 3847 (Kcr); Shail Kumar; v. Saruswati Devi, AIR 2002 NOC 167 (Delhi), questions of and objections to admissibility of documents or any other evidence should be decided before the case is put up for final arguments. The order of the trial judge that the matter of admissibility would be decided along with the final arguments was held to be not proper. As per Mulji Mehta and Sons v. C. Mohan Krishna, AIR 1997 AP 153, under stamp duty, admissibility of unstamped assignment of promissory note.

Where the truth of the facts stated in a document is in issue, the mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts stated in the document or its contents. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of persons who can vouchsafe for the truth of the facts in issue. This principle is laid down in Ramji Dayawala & Sons (P) Ltd. v. Invest Import, AIR 1981 SC 2085: (1981) I SCR 899.

The assertion that the document in question was recorded by the police and was signed by the inspector was held to be not a proof of its contents. The officer who recorded the document must be called and examined to prove the document. The mere fact that a document is produced from police custody is not a proof of its being a public document. This principle is laid down in Shravan Nathu Kanwar v. Anjunabai Shrawan Kanwar, 1997 Cri LJ 491 (Bom).

Primary evidence is evidence which the law requires to be given first. Secondary evidence is evidence which may be given in the absence of the better evidence which the law requires to be given first, when a proper explanation is given of the absence of that better record. Primary evidence is defined in s. 62 and secondary evidence in s. 63. Certified copy of a written statement has been held to be admissible under s. 63( 1). This principle is laid down in Raman Pillai v. Kumaran Parameswaran, AIR 2002 Ker 133. The court noted that this was a common practice in suits and distinguished the case from the decision to Kannu Asan v. Trav Forward Bank Ltd., 1956 Ker LT 203.

The ingredients of the Section are analyzed as follows.

01. Admissibility of Document

01. Generalia specialibus non derogant

Where there is a specific provision covering the admissibility of a document, it is not open to the court to call into aid other general provisions in order to make a particular document admissible. If a judgment is not admissible as not falling within the ambit of Ss. 40 to 42, it must fulfil the conditions of s. 43 otherwise it cannot be relevant under s. 13 of the Evidence Act. The words "some other provision of this Act" cannot cover s. 13 because this section does not deal with judgments at all. Therefore, s. 13 cannot be used to aid the admissibility of a judgment as coming under the provisions of s. 43. A judgment in rem, like judgments passed in probate, insolvency, matrimonial or guardianship or other similar proceedings, is admissible in all cases whether such judgments are inter partes or not. But a judgment in personam which is not inter partes is inadmissible in evidence except for the limited purpose of proving as to who the parties were and what was the decree passed and the properties which were the subject-matter of the suit.

Therefore, the recitals in a judgment, like finding given in appreciation of evidence made or arguments or genealogies referred to in the judgment, would be wholly inadmissible in a case where neither the plaintiffs not the defendants were parties. In  State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684: (1983) 3 SCC 118; Pammi v. Govt. of M.P., 1998 Cri LJ 1617 : AIR 1998 SC 1185: (1998) 2 SCC 700, a copy of the deposition of a witness in another case was relied upon to disbelieve the presence of an eye-witness at the place of occurrence in the present case. The person whose deposition was relied on was not examined. It was held that this was not proper for the purpose of disbelieving an eye-witness in the present case.

02. PRIMARY EVIDENCE

Section 62 of the Act runs as follows,

“S. 62. Primary evidence means the document itself produced for the inspection of the Court.

Explanation I.- Where a document is executed in several parts¹ each part is primary evidence of the document.

Where a document is executed in counterpart², each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2.- Where a number of documents are all made by one uniform process,³ as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.”

ILLUSTRATION

A person is shown to have been in possession of a number of placards, all printed at one time from one original. Anyone of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

This section defines the meaning of primary evidence which means the document itself produced for the inspection of the Court. Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart is primary evidence, as against the party executing it. Where a number of documents are made by printing, lithography, or photography, each is primary evidence of the contents of the rest. Where they are copies of a common original they are not primary evidence of the contents of the original. Two wills in identical language were prepared by the process of typing in which the second copy was obtained by carbon impression. Both were duly executed and attested. Both were held to be original and not one a copy of the other. As per Kamala Rajamanikham v. Sushila Thakur Das, AIR 1983 All 90 the fact that the testator inserted a remark on one of them "true copy" would not alter their character.

Primary evidence is the evidence which the law requires to be given first.

The ingredients of the Section are analyzed as given under.

01. 'Document is executed in several parts

Sometimes each party to a transaction wishes for the sake of convenience to have a complete document in his own possession. To effect this, the document is written out as many times over as there are parties, and each document is executed, i.e., signed or sealed, as the case may be, by all the parties. Anyone of them may be produced as primary evidence of the contents of the document. As per State Bank of Travancore v. Velayudhan Pillai Bhaskaran Nair, AlR 1996 Ker 32, the duplicates of partition deed executed and registered along with it whereby properties are created in favour of several persons are to be treated as original itself having the same operation and effect as that of the other.

02. Document is executed in counterpart

A document is executed in counterpart when there are two parties to the transaction. Thus, if the transaction is a contract between A and B the document is copied out twice, and A alone signs one document, whilst B alone signs the other. A then hands to B the document signed by himself, and B hands to A the document signed by himself. Then, as against A, the document signed by A is primary evidence, whilst, as against B, the document signed by B is primary evidence. As per Philipson v. Chase, (1809) 2 Camp 110, if there are two contemporary writings, the counterparts of each other, one of which is delivered to the opposite party, and the other preserved, as they may both be considered as originals, and they have equal claims to authenticity, the one which is preserved may be received in evidence, without notice to produce the one which was delivered.

Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it, and secondary evidence as against other parties (see s. 63, cl. 4).

03. One uniform process

As per Prithi Chand v. State of H.P., 1989 Cr LJ 841: AIR 1989 SC 702, where a carbon copy was made by one uniform process of the certificate of a doctor (as to the condition of a rape victim) given in the performance of professional duty, it was held to be a primary evidence within the meaning of the Explanation 2.

As per Rajesh Rai v. State of Sikkim, 2002 Cri LJ 1385 (Sik) a police station diary contained duplicate pages. A carbon copy was prepared by the same process by which the first copy was prepared. Each was held to be the primary evidence of the contents of the rest.

04. Application for grant of probate

Section 276 of the Succession Act, 1925 requires that an application for probate or letters of administration should be made with the "will" annexed. Since this does not necessarily mean the "original will", a copy certified by the sub-registrar was allowed to be annexed. This principle is upheld in Rajrani Sehgal v. Parshottam Lal (Dr.), AIR 1992 Del 134.

05. Video evidence

It has been held that the permission of video evidence is a discretionary matter and not confined to a limited set of circumstances like pressing need, such as when a witness was too ill to attend. The court said that full access to the court for justice in a civil matter should not, other than in exceptional circumstances, be at the price of the litigant losing his liberty and facing criminal proceedings. Thus, even a fugitive plaintiff was allowed to give video evidence for enforcing his civil right to a money claim. This principle is upheld in Rouland v. Bock, (2002) EWHC 692: (2002) 4 All ER 370.

The prosecution refused to supply the accused with copies of audio and video surveillance tapes. The prosecution instead provided transcripts and offered inspection in controlled conditions. The question was whether this decision of the prosecution was lawful. The court held in R. v. X Justices, ex parte J, (2000) 1 All ER 183 (QBD DC) as follows: Where there were considerations of fairness in the public interest as well as that of the defence as to the manner in which material should be made available, something short of outright provision of copies of audio and video surveillance tapes exhibited to an undercover police officer's witness statement might be justified, provided it did not prejudice the defendant's right to a fair trial.[i] The provision of copies, though the norm, is not an absolute entitlement of the defence, and it is not appropriate to draw a line between entitlement to copies as against facilities for and conditions of inspection. There is at most a strong presumption in favour of provision to the defence in good time of copies of all capable exhibits, which was for the prosecution to displace. That was especially so where the exhibits were an important part of the prosecution case and were likely to warrant close examination to enable the defence to prepare properly for trial. Furthermore, although Art 6 of the convention referred only to the defendant's and not the prosecutor's right to a fair hearing, the notion demanded some consideration as to whether it could be achieved whilst nevertheless paying proper regard to the public interest in prosecuting serious offenders to conviction. It would be a matter for the trial judge, at an early stage after committal, to determine whether in the particular circumstances of each case a fair hearing could be achieved by the prosecution permitting the defence to inspect originals or copies of capable exhibits rather than providing it with copies. It could not be said, in the light of the present statutory and common law regime governing the prosecution of criminal offences, that the CPS's refusal to provide copies of the tapes and its offer to arrange inspection were unlawful as a matter of principle. Protection of the safety and future usefulness of undercover police officers was clearly a valid consideration in the making of such a decision. There was an onus on the CPS to justify its departure from the norm, but whether it could do so was a task for the trial judge and not for the High Court on an application for judicial review. It followed that the CPS's stance had not been irrational, unlawful or contrary to art 6 and, accordingly, the application was dismissed.[ii]

06. Application for video evidence

An appeal was filed in a debt action, against an order refusing leave to give evidence by way of a video link. The appellant had previously been arrested and detained in the UK in connection with an extradition request concerning insider dealing, was claiming the sum of £250,000 from the defendant pursuant to a retainer agreement whereby he had contracted to find investors for the defendant's business. The defendant had terminated the retainer before investors had been found, claiming that the latter had disclosed details of the agreement in breach of his fiduciary duty to maintain confidentiality. At first instance, it was held that video evidence could only be allowed in cases of pressing need, such as where a witness was too ill to attend, and that it was questionable whether N should be permitted to give evidence by video in order to further and continue his flight from justice in the extradition proceedings.

Court Held, allowing the appeal and giving judgment for the claimants, that there was no evidence that N had breached confidentiality. B had not shown that R had had such detailed knowledge of the retainer that he could only have obtained it from N, nor had he shown that R had such knowledge prior to the date of termination of the retainer. In relation to the video evidence, the Master's conclusion as to when it was appropriate was too restrictive and conflicted with the objective of enabling the court to do justice. The permission of video evidence was a discretionary matter and not confined to a limited set of circumstances. The Master had failed to pay sufficient regard to the need to ensure that the parties were on an equal footing pursuant to the Human Rights Act, 1998 Sch. 1 Part I Art. 6.  Moreover, full access to the court for justice in a civil matter should not, other than in exceptional circumstances, be at the price of the litigant losing his liberty and facing criminal proceedings. This principle is dealt with in Rowland v. Bock, (2002) EWHC 692: (2002) 4 All ER 370, NEWMAN, J., QBD.

03 .SECONDARY EVIDENCE

Section 93 defines secondary evidence.

S. 63. Secondary evidence means and includes-

(1) certified copies given under the provisions herein-after contained;

(2) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;

(3) copies made from or compared with the original;

(4) counterparts of documents as against the parties who did not execute them;

(5) oral accounts of the contents of a document given by some person who has himself seen it.

ILLUSTRATIONS

(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.

(b) A copy, compared with a copy of a letter, made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.

(c) A copy transcribed from a copy, but afterwards compared with the original is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.

(d) Neither an oral account of a copy compared with the original, nor an oral account of a photographer machine copy of the original, is secondary evidence of the original.

This section describes what constitutes 'secondary evidence'. 'Secondary evidence' evidence which may be given under certain circumstances in the absence of that better evidence which the law requires to be given first.

Secondary evidence means and includes-

(1) certified copies;

(2) copies made from the original by mechanical processes, and copies compared with such copies;

(3) copies made from or compared with the original;

(4) counterparts of documents as against the parties who did not execute them;

(5) oral accounts of the contents of a document by a person who has seen it.

Clauses 1 to 3 deal with copies of documents. Where a copy of a document is admitted in evidence in the trial Court without objection, its admissibility cannot be challenged in the Appeal Court. Because omission to object to its admission implies that it is a true copy and, therefore, it is not open to the Appeal Court to say whether the copy was properly compared with the original or not. This principle is upheld in Chimnaji Govind Godbole v. Dinkar Dhondev Godbole, (1886) 11 Bom 320; Lakshman v. Amrit,(1900) 24 Bom 591: 2 Bom LR 386; Kishori Lal Goswami v. Rakhal Das Banerjee, (1903) 31 Cal 155; Ram Lochan Misra v. Pandit Harinath Misra, (1922) I Pat 606

01. Certified copies- [Clause l]

Section 76 defines the expression "certified copies". See also ss. 77, 78, 79 and 86.

The correctness of certified copies will be presumed under S. 79; but that of other copies will have to be proved. This proof may be afforded by calling a witness who can swear that he has compared the copy tendered in evidence with the original or with what some other person read as the contents of the original and that such is correct.[iii] Certified copies of money lenders licences are admissible in evidence.[iv]

Certified copies of sale deeds were held to be admissible as secondary evidence. The court in Kummari Veeraiah v. State of A.P., (1995) 4 SCC 136, however, said that they could not be relied upon unless the vendor or vendee were examined to prove the consideration for the transaction and other circumstances, such as nearness to land.

02. Copies made by mechanical process-[Clause 2]

Reading cl. 2 and illustrations (b) and (c) together it will appear that a copy of a copy, i.e. a copy, transcribed from, and compared with, a copy, is inadmissible unless the copy with which it was compared was a copy made by some mechanical process which is itself ensures the accuracy of such copy. See illustration (b).

Copies of copies kept in a registration office, when signed and sealed by the registering officer, are admissible for the purpose of proving the contents of the originals (s. 57(5), Act XVI of 1908). Letter-process copies and photographs of writings are secondary evidence (vide illustration (a)). It is held in Govt. of A.P. v. Karri Chinna Yenkata Reddy, AIR 1994 SC 591 : 1995 Supp (I) SCC 462 that photostatic copies of document should be accepted in evidence only after examining original records. Photostatic copy of the power of attorney executed by competent authority and authenticated by a notary public and proved from original is admissible in evidence as found in Northland Traders v. Bank of Baroda, AIR 1994 All 381. In absence of any evidence that the originals were delivered to the addressee, the copy of the letters carry little evidentiary value.[v]

A photostat copy of a rent note which was proved to be the photostat of the originals though not compared with the original, was held to be admissible in Ratan Sharma (Sml.) v. Ambesedar Dry Cleaners. AIR 1997 Raj 75.

03. Copies made from original-[Clause 3]

Copies made from the original or copies compared with the original are admissible as secondary evidence. A copy of a copy, when compared with the original, would be receivable as secondary evidence of the original (illustration (b)).

Illustration (c) lays down in express language that "a copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but a copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original". An entry in a deed-writer's register which contains all the essential particulars contained in the document itself and is also signed or thumb-marked by the person executing the document amounts to a copy and is admissible in evidence as declared in Sant Ram v. Ghasita Ram. (1956) 9 Pun 193. A copy of a certified copy of a document, which has not been compared with the original, cannot be admitted in evidence, such a copy being neither primary nor secondary evidence of the contents of the original as held in Ram Prasad v. Raghunandan Prasad, (1885) 7 All 738, 743; Narasimham v. Babu Rao, (1939) Mad 333.

Documents which are merely copies of copies, the originals not having been satisfactorily accounted for, are inadmissible in evidence and must be rejected.[vi]

As per Muhammad Suleman v. Hari Ram, (1936) 21 Lah 363 an abstract translation or a complete translation of a document is not 'copy made from and compared with the original' within the meaning of this clause.

As per Monoranjan Paul v. Narendra Kumar Paul. AIR 1994 Gau 64, true copy of the document incorporating facts of amicable partition, supplied from the office of Sub-Registrar bearing his seal and signature can be relied upon for its contents. Newspaper reports, advertisements or messages are not admissible in evidence unless the original manuscripts are produced or they are proved by the person concerned as held in Quamarul lslam v. S.K. Kania. AIR 1994 SC 1733: 1994 Supp (3) SCC 5.

As per Devi Chatld v. Har Kishan Dal (1954) 2 All 531 a draft of a document cannot be treated as secondary evidence; but the Kerala High Court has held in P. Kunhammud v. V. Moosankutty, AIR 1972 Ker 76 that a draft can be accepted in evidence only if there is proof that the original has been prepared without any corrections and that it is exactly a true-copy of the draft. The Allahabad High Court has similarly held that S. 63 is not exhaustive of all types of secondary evidence. It, therefore, allowed the draft notice from which the final notice was prepared to be produced as secondary evidence.[vii] The statement as to the contents of a document by a witness, who has not himself read the document, is not secondary evidence of the contents of the document as held in Dalu v. Juhar Mal. (1951) I Raj 166.

A photograph is a copy prepared from the negative, the original document. Hence where neither the original was produced nor the photographer was examined, the eye-witnesses were not allowed to be contradicted by photographs of the happening. This principle is held in Stale of Gujarat v. Bharat, 1991 Cr LJ 978 (Guj).

04. Counterparts-[Clause 4]

When a document is executed in counterpart, each party signing only the part by which he is bound, each counterpart is the best evidence against the party signing it and his privies. As to the other party it is only secondary evidence. A landlord's counterfoil was held to be not relevant for the purpose of showing that the arrangement was a month to month tenancy.[viii]

05. Oral statements-[Clause 5]

Secondary evidence includes, according to cl. 5, oral accounts of the contents of a document, given by some person who has himself seen the original document as held in Ma Mi v. Kallander Ammal (No.2), (1926) 54 IA 61: 29 Bom LR 800: 5 Ran 18. But a written statement of the contents of a copy of a document, the original of which the person making the statement has not seen, cannot be accepted as secondary evidence as held in Kanayala v. Pyarabai, (1882) 7 Bom 139. This clause does not necessarily mean that a witness who is called to give evidence as to a lost document must have himself read the document. He would be a competent witness if, having physically seen the document, the contents thereof had been read out or explained to him. This principle is upheld in Mehi Lal v. Ramji Das, (1924) 47 AU 13. Secondary evidence of a document which is lost or difficult to trace can be adduced in two ways; (1) by oral evidence of persons who were present when the document was executed; (2) by a certified copy of the original document. This principle is upheld in Veerappa v. Md. Attavullah, (1951) Hyd 74. As per Hutchegowda v. Chenningegowda; (1952) Mys 49, copies of registered documents are admissible as secondary evidence where the person in whose custody the original should be swears that they are not with him though there is no evidence as to the loss or otherwise of the original. The original dying declaration was lost. A head constable who maintained a copy testified to its accuracy. This was allowed as corroborative evidence in Alter Ram Goa v. Gujarat, 1979 CrLJ 1081. A taped conversation not compared with the voice was not allowed to be used as evidence as held in Joginder Kaur v. Surjit Singh. AIR 1985 P&H 128. The newspaper report of an interview with the author of a book is not admissible to prove the nature and contents of the book (on the basis of which Tamas serial was produced) but the court agreed to look at it in view of the urgency of deciding the case on a matter of public importance in Ramesn v. Union of India. AIR 1988 SC 912: 1988 CrLJ 936: (1988) 1 SCC 668 : 1988 SCC (Cri) 266. Letters written by a police officer to his administrative superior were not allowed to be proved. The writer of the letters should have appeared in person so as to enable the opposite party to cross- examine him as to the contents of the letter as held in Vinod Chaturvedi v. State of M.P. AIR 1984 SC 911 : 1984 Cr.LJ 814: (1984) 2 SCC 350: 1984 SCC (Cri) 250.

As per Asa Ram v. M.C.D .. AIR 1995 Del 164 where the report of accidental electrocution was based on the information given by another person who was not examined nor original report was produced, no reliance could be placed on the version of that person and the said report.

A witness can be shown xerox copy of a document which is already on record. The statements of the witness as to the document would not mean the admission of the document in evidence as held in Ahmedabad New Textile Mills v. Rajubhai Dalechandbhai, AIR 1999Guj 148.

06. Repeat application for permitting secondary evidence

In Ram Pal Singh v. Syndicate Bank, AIR 2000 P&H 296 an application was made by the plaintiff bank for permission for filing photocopy of the "acknowledgement of debt" as the original happened to be misplaced. The application was dismissed without hearing the plaintiffs contention. Neither party had argued the matter, nor it was decided by the Court. It was held that the filing of another application for producing secondary evidence was not barred by res judicata.

07. All categories equal ranking

LORD MINGER in Doerd Gilbert v. Ross. (1840)19 LJ Ex 210 said: "The rule is, that if you cannot produce the original, you may give parol evidence of its contents. If indeed the party giving such parol evidence appears to have better secondary evidence in his power, which he does not produce, that is a fact to go to the jury, from which they might sometime presume that the evidence kept back would be adverse to the party withholding it. But the law makes no distinction between one class of secondary evidence and another."

In the same case the following words of PARKE, B embody the same truth: "There can be no doubt that an attested copy is more satisfactory, and, therefore, in that sense, better evidence than mere parol testimony; but whether it excludes parol testimony is a very different thing. The law does not permit a man to give evidence which from its very nature shows that there is better evidence within his reach, which he does not produce. And, therefore, parol evidence of the contents of a deed or other written instrument, cannot be given, without producing or accounting for the instrument itself. But so soon as you have accounted for the original document you may then give secondary evidence of its contents. We know nothing but of the deed which is accounted for, and, therefore, the parol evidence is in itself unobjectionable. Does it then become inadmissible, if it be shown from sources that a more satisfactory species of secondary evidence exists? I think it does not, and I have always understood the rule to be, that when a party is entitled to give secondary evidence at all he may give any species of secondary evidence within his power."

08. List not exhaustive

The Allahabad High Court in Lachcho v. Dwari Mal. AIR 1986All 303, 306 held that Sec. 63 is not exhaustive of all the categories of secondary evidence. The court allowed evidence of draft notes from which the final notice was prepared. The court said : ''The scope of Sec. 63 is not restricted to its five clauses but leaves enough scope for cases, which do not strictly fall within any of those enumerated therein. The term 'includes' leaves some scope for a case like the present one. The court must, however, be satisfied that the document sought to be introduced as secondary evidence is a faithful and accurate reproduction or draft of the final document whose copy it purports to be."

09. A document insufficiently stamped

As per Kundan Mal v. Nand Kishore, AIR 1994 Raj 1 a document insufficiently stamped can be admitted in evidence on payment of penal stamp duty.

10. Secondary evidence of document insufficiently stamped, unregistered or unstamped

An application seeking permission for producing secondary evidence was not allowed because the document was unstamped and was also not registered and, therefore, the original itself would not have been admissible. This approach was held to be not justified. It was premature for the trial court to go into that question at the application stage.[ix]

11. Recorded tape

As per K.S. Mohan v. Sandhya Mohan. AIR 1993 Mad 59 where the cassette was carefully sealed and kept in judicial custody, voice of the parties were clearly audible and possibility of tampering was ruled out, the taped statements were admissible.

In has been said by DARLING. J.  in R. v. Daye, (1908) K.B. 333 and HUMPHREY J. Sin R. v. Hill (1945) K.B. 329 at p. 334 that there is "no reason in principle why the recording in some permanent or semi-permanent manner of human voice (or other sounds) which are relevant to the issue to be determined, provided that it furnishes information, cannot be a document.” In reference to the reception into evidence of models, maps, diagrams and photos, it is observed in WIGMORE[x] "that for evidentiary purposes they are nothing except so far as they have a human being's credit to support them. Then they become media of communication as a superior substitute for words." An Australian court observed:[xi] If it should be established by oral evidence that there was a mechanical electronic recorder in operation at a material time which was capable of and did record accurately sounds as they occurred, and other oral evidence of identification, and non-interference, it appears that the material containing such recording is properly admissible in evidence. There is no distinction in principle from the reception into evidence of a photograph of a street accident taken at the time of its occurrence which is sworn to by an eyewitness as being a true representation of the scene at the relevant time. In that case light waves, and in the case of a recording, sound waves, have been captured and preserved by scientific means.

These principles have been followed by the Supreme Court of India. Tape recorded conversations came before the Supreme Court mostly in cases of officials in receiving or attempting to receive bribes. In R.M. Malkani v. State of Maharashtra AIR 1973SC 157; (1973) 1 SCC 471. The accused was the coroner of Bombay. A doctor operated upon a patient who afterwards died. Being a post-operation death, it became the subject of post-mortem and inquest. The coroner persuaded the doctor to pay him a sum of money if he wanted the report to be favourable to him. The payment was arranged to be made through another doctor and the date and timing of the final meeting was to be settled by telephone call from the house of the other doctor. The police commissioner was called with the tape-recording mechanism. This was connected to the doctor's telephone and thus the most incriminating conversation was recorded in the presence of the police officer. The Bombay High Court held that the testimony of two doctors required corroboration and that the tape amply corroborated it. This decision was upheld by the Supreme Court. RAY, 1. (afterwards C.J.) looked into the previous authorities.

"This Court in N. Sri Rama Reddy v. V.V. Giri (1970) 2 SCC 340: (1971) 1 SCR 339, Yusufalli Esmail Nagree v.State of Maharashtra (1967) 3 SCR 720: AIR 1968 SC 147: (1968) 1 SCJ 51, and Pratap Singh v. State of Punjab AIR 1964 SC 72: (1964) 4 SCR 733, accepted conversion of dialogue recorded on tape-recording machine as admissible evidence. In Nagree's case AIR 1968 SC 147: (1967) 3 SCR 730: (1968) 1 SCJ 51, the conversation was between Nagree and Sheikh Nagree and Nagree was accused of offering bribe to Sheikh.

In the Presidential Election case Pratap Singh v. State of Punjab, AIR 1964 SC 72 questions were put to a witness that he had tried to dissuade the petitioner from filing an election petition. The petitioner had recorded on tape the conversation that took place between the petitioner and the witness. The court admitted the recording to contradict the witness. The tape itself becomes the primary and direct evidence of what has been said and recorded. "Tape recorded conversation is admissible provided, first, the conversation is relevant to the matters in issue; secondly, there should be identification of the voice; and thirdly, the accuracy of the tape-recorded conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is relevant under section 8 of the Act. Court held in Pratap Singh v. State of Punjab, AIR 1964 SC 72 that it is also res gestae (part of the same transaction) and therefore, relevant under section 6. It is also comparable to a photograph of a relevant incident and is, therefore, a relevant fact under section 7 of the Act.”

In another case before the Supreme Court, the question was whether the tenant had granted a sub-tenancy. The finding of the Rent Controller that there was sub-tenancy based upon a tape recorded conversation between the tenant and the husband of the landlady. The court said that the tape-recorded conversation could be used in corroborating the deposition in the court by one of the parties. In the absence of any such deposition, the tape was not allowed to be used as evidence in itself. This was held in Mahabir Prasad v. Surinder Kaur, AIR 1982 SC 1043: (1982) 2 SCC 258. To the same effect, State v. Ravi, 2000 Cri LJ 1125 (Del) also was adjudged. The Supreme Court subsequently tightened the rule to this extent that it must be shown that the tape was kept in proper custody. In that case the Deputy Commissioner had left the tape with the stenographer. That was held to be sufficient to destroy its authenticity in Ram Singh v. Col. Ram Singh (1985) Supp SCC 611: AIR 1986 SC 3. How the cassette came into existence has been held by the Supreme Court to be an important consideration. The court in Quammaral Islam v. S.K. Kanta AIR 1994 SC 1733: 1994 Supp (3) SCC 5 rejected the tape recorded evidence of an election speech because the tape was prepared by a police officer who was not able to explain why he had done so. The candidate had denied that the tape was in his voice.

The Court of Appeal (English) held in Venatouris v. Mountain (No.2) India Express (1992) 3 All ER 414 CA, that statements recorded without the speaker's knowledge would be only oral statements and would require to be proved as oral evidence, statements recorded with knowledge and consent would fall in the category of documentary as well as oral evidence and can be proved by ether method.

12. Newspaper reports

In the words of the Supreme Court a newspaper report is a hearsay-secondary evidence. It cannot be relied upon unless proved by evidence aliunde. Even where nobody has opposed the report, the party citing the report would not be absolved of his obligation to prove the truth of its contents. The court said: "In the present case, no evidence has been let in proof of the statement of facts contained in the newspaper report. The absence of any denial by the maker of the statement, viz., the Minister, will not absolve the applicant from discharging his obligation of proving the statement of facts as appeared in the press report. The Minister in his counter-affidavit had taken a stand that the statements attributed to him based on the newspaper report are mere hearsay and cannot in law be relied upon for the purpose of initiating such proceeding. Therefore, in the absence of required legal proof, the Court will not be justified in issuing a suo motu notice for contempt of court. Moreover, the news item does not spell out any reference to the case of corruption or its proceeding pending before the Supreme Court. In the alleged contemptuous statement only the view of the reporter was mentioned as if the Minister had been provoked about the proceedings of the case before the Supreme Court. There is no reason much less compelling reason to issue suo moto notice to the Minister for contempt of court, the Court held in S.A. Khan v. Ch. Bhajan Lal (1993) 3 SCC 151: 1993 Cri LJ 1042: AIR 1993 SC 1348: (1993) 1 SLR 392.

Where the death of a prisoner was alleged to be due to the negligence of jail authorities and the information to that effect was collected wholly from newspaper items, the court in Sudha Gupta v. State of M.P. 1999 Cri LJ 1742 (M.P.) said that facts published by way of news could not ex facie be taken to be of such authenticity which could warrant initiation of proceedings under article 226.

04. PROOF OF DOCUMENTS BY PRIMARY EVIDENCE

Section 64 runs as follows,

S. 64. Documents must be proved by primary evidence except in the cases hereinafter mentioned.

01. Principle

A written document can only be proved by the instrument itself. It is a general rule that if a person wants to get at the contents of a written document the proper way is to produce it if he can. "Where the contents of any document are in question, either as a fact directly in issue or a subalternate principal fact, the document is the proper evidence of its own contents. But where a written instrument or document of any description is not a fact in issue, and is merely used as evidence to prove some fact, independent proof aliunde is receivable. Thus although a receipt has been given for the payment of money, proof of the fact of payment may be made, by any person who witnessed it.... So, although where the contents of a marriage register are in issue, verbal or other evidence of those contents is not receivable, the fact of the marriage may be proved by the independent evidence of a person who was present at it.”[xii] Once a document is properly admitted, the contents of that document are also admitted in evidence, though those contents may not be conclusive evidence as held in P.C. Purushothuma v. S. Perumal, AIR 1972 SC 608: 1972(1) SCC 9. Where the report of the Central Forensic Science Laboratory expert was admitted in evidence without objection regarding its mode of proof, the same could not be objected to at any later stage of the case or in appeal. This principle is upheld in Amarjit Singh v. State (Delhi Admn.), 1995 Cr LJ 1623 (Del), following Phool Kumar v. Delhi Admn., AIR 1975 SC 905 : 1975 Cr LJ778 and overruling Heera Lal v. State (Delhi), (1994) 2 Chand Cri C 300 (HC), Nizamuddin v. The State, 1994 IV AD (Delhi) 50, Attar Singh v. State (DelhiAdmn.), 1994 III AD (Del) 626 and Islam v. State (Delhi Admn.), 1994 III AD (Del) 1495.  For proving the contents of a sale deed, the executant was not examined, though proof of his signature was offered. The sale deed was not allowed to be admitted in Prakash Cotton Mills v. M. Commr., AIR 1982 Bom 387. No materials, which are not spoken to by persons who are competent to speak about them and are subjected to cross examination, can be relied upon. The executant of a document must be produced or his affidavit filed. This was held in Ram Jawai v. Shakuntala Devi, AIR 1993 Delhi 330.

Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document, or unless the genuineness of a document produced is in question.[xiii]

The tape-recorded conversation of wife was lodged as a proof of her mental disorder. She was sitting in the Court as a respondent. No effort was made to compare her voice with the tape. The tape was not allowed to be used as evidence or for shaking her credit in cross-examination in Joginder Kaur v. Surjit Sing, AIR 1985 P&H 128. A deed of adoption was produced before the trial Court without any objection by the opposite party as to its mode of proof. Objections cannot be raised in appeal, the Court held in Amar Singh v. Tej Ram, AIR 1982 P&H 382.

A matter of title was settled by a settlement which was entered into the revenue record. A copy of the settlement was produced in evidence. The court rejected it. The settlement had to be proved either by its primary evidence which was the original document containing the settlement or by its secondary evidence wherever permissible. There was no permission in this case for production of a copy in evidence.[xiv]

05. CASES IN WHICH SECONDARY EVIDENCE RELATING TO DOCUMENTS MAY BE GIVEN

Section 65 runs as follows,

S. 65. Secondary evidence may be given of the existence, condition or contents of a document in the following cases:-

(a) when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in see ion 66, such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily moveable;

(e) when the original is a public document within the meaning of section 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India, to be given in evidence;

(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection.

In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.

In case (b), the written admission is admissible.

In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.

In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

This section enumerates the seven exceptional cases in which secondary evidence is admissible. Under it secondary evidence may be given of the contents of a document in civil as well as in criminal proceedings.

Secondary evidence of the contents of a document cannot be admitted without the non-production of the original being first accounted for in such manner as to bring it within one or other of the cases provided for in the section as per Krishna Kishori Chowdhrani v. Kishori Lal Roy, (1887) 14 Cal 486: 14 IA 71. It is incumbent on the person who tenders secondary evidence to show that it is admissible; the question of admissibility is ordinarily for the Court of first instance.[xv]

'Document' means a document admissible in evidence. If a document is inadmissible in consequence of not being registered or not being properly stamped, secondary evidence cannot be given of its existence.[xvi] If the original document is inadmissible in evidence owing to its being unstamped or unregistered, secondary evidence is inadmissible. Secondary evidence cannot be given to establish a fact, proof whereof by primary evidence is forbidden. Under no circumstances can secondary evidence be admitted as a substitute for inadmissible primary evidence.

Where permission was sought for producing secondary evidence of certain receipts on ground that the original receipts were lost. The court said that two things would have to be proved: there must be evidence of the existence of original receipts and there must be evidence of their loss. In this case, there was no evidence on record even of the existence of the original receipts. The permission granted was held to be improper.[xvii]

Where a party comes into Court resting his claim on a written title which the law requires to be registered, he cannot, when he has failed to register, and is, in consequence unable to use his title deed, turn round and say that he could prove his title by secondary evidence. Therefore, the oral evidence of the terms of an unregistered deed of mortgage, required by law to be registered, is inadmissible, as observed in Suwa v. Kulal, (1951) I Raj 69; Champalal v. Pannalal, (1951) I Raj 190. Secondary evidence was allowed where the defendant did not deny the registered deed.[xviii] Where the defendant-petitioner sought to produce secondary evidence in respect of certain documents without showing his entitlement to produce it, the trial court committed no irregularity in rejecting his application, court held in Dropadi v. Mahugraha Bhagwat Singh, AIR 1995 Raj 138.

The section deals with the proof of the contents of documents tendered in evidence.

01. Original in possession of opposite party [Clause (a)]

The document need not be in the actual possession of the party; it is enough if it in his power. A tenant alleged that the original rent note was in the landlord's possession. He applied for leave for production of a copy of the note. It was held in Nawab Singn v.Tnderju Kaur, AIR 1999 SC 1668: (1999)4 SCC413 that the rejection of his application without giving him an opportunity to explain his Justification for permission for production of secondary evidence was not proper.

This expression 'not subject to' seems intended to include the case of a person not legally bound to produce the document, who refuses to produce it.[xix]

02. Legally bound to produce it

The wording of this clause has given rise to considerable doubt. Secondary evidence a document is admissible when the original appears to be in the possession if any person legally bound to produce it. This clearly covers a document which is unjustifiably withheld by any person thus differing from the English law on the point. But if a person summoned to produce a document objects to do so and his objection is upheld by the Court, it seems equally clear that such a document does not fall within the words of this section. It may be, however, that the Courts will admit secondary evidence in such a case upon the general principles of the English law and the decisions, of the English Courts upon the subject.[xx] Under this clause secondary evidence in the form of an authenticated copy of a document becomes admissible if a person cannot be legally compelled to produce the original in his possession and refuses to produce it.[xxi]

Where the existence of the mortgage deed was not specifically denied by the mortgagee and therefore, it was not necessary for the plaintiff to call attesting witnesses and the defendant (mortgagee) was refusing to file the original deed in the court, it was held in Ishwar Das Jain v. Sohan Lal AIR 2000 SC 426 : (2000) 1 SCC 434 that the filing of a certified copy of the deed by the plaintiff as secondary evidence was a sufficient proof of the existence and execution of the deed.

03. When after the notice mentioned in s. 66 such person does not produce it

When any person in whose possession or power the original may be, after receiving the notice (if any) required by s. 66, does not produce such original.[xxii] The sole object of a notice to produce is to enable the adversary to have the document in Court to produce it if he likes, and, if he does not, to enable his opponent to give secondary evidence thereof, so as to exclude the argument that the latter has not taken all reasonable means to procure the original which he must do before he can be permitted to make use of secondary evidence. This principle was held in Dwyer v. Collins. (1852) 7 Ex 639, 647.

If a person who is legally bound to produce the document refuses to produce it notwithstanding notice to do so, the existence and contents of the original document can be proved under this clause by proof of the authenticated copy as held in Muniammal v. Govindarajan, (1958) Mad 415.

04. Documents admitted by opposite party- [Clause (b)]

This clause must be read with s. 22. Under it the written admission may always be proved. The oral admission can only be proved under the circumstances mentioned in clauses (a), (c) and (d). But secondary evidence by means of a written admission under this clause cannot be given of the contents of a document, which is inadmissible for want of registration (Yarada v. Krisnasami, (1882) 6 Mad 117) or of stamps (Damodar Jagannath v. Atmaram Babaji, (1888) 12 Bom 443). Admission of documents amounts to admission of contents thereof but not its truth. Truth or correctness is to be ascertained from evidence (Life Insurance Corporation of India v. Narmada Agarwalla. AIR 1993 Ori 103). Where the defendant himself admitted the payment under the cheque, absence of cheque as primary evidence would not vitiate the suit (Sharda Talkies (Firm) v. Madhulata Vyas. AIR 1996 MP 68).

05. Original lost or destroyed-[Clause (c)]

Secondary evidence is admissible when the party offering evidence of the contents of a document cannot for any reason not arising from his own default or neglect produce the original document in reasonable time, the Court held in Surendra Krishna Roy v. Mirza Mahammad Sved Ali Matwali, (1935) 63 IA 85. 38 Bom LR 330. Akshara Nand v. State of H.P. 1996 AIHC 1894(HP). Secondary evidence of the contents of a document cannot be admitted without the non-production of the original being first accounted for.[xxiii]

Where an original book of accounts is in a very tottering condition and is also worm-eaten, secondary evidence of such accounts cannot be given.[xxiv] It is not permissible to go to other evidence for the purpose of indicating what the contents of the document may prove to be if once it were examined, the Court held in K.S. Bonnerji v. Sitanath, (1921) 24 Bom LR 565: 49 IA 46: 49 Cal 325. There must be evidence on the record to show that the document has been lost, as decided in Mohammad Khan v. Sheo Bikh Singh, (1929) 5 Luck 377.

To prove the loss of a document, evidence of diligent search is necessary. See illustration (b) to s. 104. Copies are inadmissible without proof of the search of the originals (Krishna Kishori Chawdhrani v. Kishori Lal Roy, (1887) 14 Cal 486: 14 IA 71; Harripria Debi v. Rukmini Debi. (1892) 19 Cal 438: 19 IA 79). It must, therefore, be established that the party has exhausted all resources and means in search of the document which were available to him, the Court held in Parekh Bros. v. Kartick Chandra. AIR 1968 Cal 532. The loss of a document can never be proved absolutely. Where a document has not been seen for many years, the statement by a person who was alleged to have been in possession of it that it was never with him nor was it with him then, is sufficient evidence of its loss (Basant Singh v. Brijraj Saran Singh. (1935) 37 Bom LR 805: 62 IA 180: 57 All 494). Where a promissory note filed with a plaint disappeared from the Court file, it was held that the plaintiff was entitled, without showing how the disappearance or the loss arose or who abstracted it from the file, to give secondary evidence of it (Tulsi Ram v. Ram Saran, (1924) 27 Bom LR 777 PC). If a registered sale-deed is lost a certified copy can be put in as secondary evidence (Entisham Ali v. Jamna Prasad. (1921) 24 Bom LR 675: 48 lA 365), but the reception of other evidence must always be of a very weak character in place of registered document evidencing the transaction (Nani Bai v. Gita Bai. AIR 1958 SC 706: 1959 SCR 479). Where the loss of the original award was proved by examining one of the Arbitrators, its photocopy bearing not only that Arbitrator's signature but also of both the parties was admissible in evidence (Om Prakash v. Dev Raj. AIR 1995 P&H 349).

Secondary evidence of a lost public document, other than a certified copy, is admissible upon proof of loss or destruction of the original, and further proof that no certified copy of the original is available to the party seeking to prove the contents of the original. So long as the original is in existence, no secondary evidence other than a certified copy is admissible (Syad Pir Shan v. Gulab Shah. (1878) PR No. 63 of 1878 (Civil)). Where the record in a case has been destroyed and is not available for the purpose of proving previous convictions, secondary evidence under this clause is admissible (Pokar v. Crown. (1941) Kar 308). Secondary evidence was allowed where the plaintiff stated on affidavit that the original was lost, (Sanatan Mohunty v. Baidhar Rout. AIR 1986 Ori 66) and also where the sale deed was handed over to a patwari and the same was not returned by him (Krishna Devi v. Gain Kaur, AIR 1981 P&H 224). In an election petition, the photo copy of the manuscript of a leaflet was not allowed because it was not shown where the original was. There must be some explanation as to the original (Ashok v. Madhav Lal. AIR 1975 SC 1748: 1975(4) SCC 664).

Secondary evidence of the contents of a document cannot be given by a party who is in custody of the original document (Hira Lal v. Ganesb Prasad. (1882) 4 All 406 PC).

In a case before the P&H High Court in P.K. Gupta v. Varinder Sharma. AIR 2002 P&H 342, a suit was filed for recovery of money on the basis of an agreement. The plaintiff produced only the photostat copy of the agreement and not the original. The defendant argued that the photocopy was produced deliberately to suppress the fact that the agreement was fabricated. The plaintiff pleaded that the original was in the custody of the defendant. He applied for permission to produce secondary evidence. It was held that a summary dismissal of such application was not proper. Opportunity should have been given to the plaintiff to make out his case. The court then explained the basic principles as follows: "A perusal of clause (c) of Section 65 of the Act would show that secondary evidence of existence, condition or contents of a document can also be adduced when the party offering evidence of its contents cannot produce the original in reasonable time. But such a delay in production of the document should not have arisen from the fault or neglect of the party who wish to adduce secondary evidence of the document. To succeed in getting permission to adduce secondary evidence it must be shown that the document was in existence which was capable of being proved by secondary evidence and secondly proper foundation must be laid to establish the right to adduce secondary evidence. This view has been taken by a Constitution Bench of the Supreme Court in the case of Roman Catholic Mission v. State of Madras AIR 1966 SC 1457. Another well-known principle with regard to proof of facts is that best evidence must come before the Court because the best evidence which is, of course, the original document would furnish an opportunity to the Court to examine various surrounding facts attached with the original alone like the veraciousness of the signatures of the parties, the age of the document and other host of factors depending on the facts of each case. It is in the absence of the best evidence that the secondary evidence is allowed to be adduced because the object of judicial investigation by Court is to fathom the truth. Therefore, the law although insists upon production of the best evidence i.e. the original document yet it permit with proper safeguards the production of the secondary evidence of the original if certain conditions are satisfied, namely, the existence of the document which might have been lost or destroyed or the party in whose possession the original is shown or appears to be-have refused to produce it before the Court despite notice or its existence, condition or contents have been proved to be admitted in writing so on and so forth. The rule regarding secondary evidence is not an open rule allowing any piece of photostat copies or an oral account of the original and the likewise to be tendered as secondary evidence.

06. Original not easily movable [Clause (d)]

This clause covers things not easily moved, as in the case of things fixed in the ground or a building; for exam pie, notices painted on walls, tablets in buildings, tombstones, monuments, or marks on boundary stones or trees. Secondary evidence is admissible on account of the great inconvenience and impracticability of producing the original.

Mertimer v. M. Challan. (1840) 4 Jur. 172: 151 ER 320 explained the principle "It has been established by a series of decisions that the books of the Bank of England being of great convenience to the whole of the national creditors, the removal of them would be so inconvenient, that copies of them might be received in evidence.

It was found upon the principle, that the public inconvenience from the removal of documents of that sort, would justify the introduction of a secondary evidence. That principle has been applied in a variety of cases. There have been attempts to apply it to cases where it was not applicable: the first was the case of Lord George Gordon (1781) 21 St. Tr 486 at 535 where copies of the journals of the House of the Commons were offered to be given in evidence, but they were rejected on the ground that no such inconvenience would attend the removal of journals of the House of Commons, and anyone wishing to remove them could get the consent of the Speaker to do so. The next case that arose was with respect to the book of the Customs Excise. It was formerly the practice to produce them, but after some consideration it was thought that the public inconvenience was so great, that it has become every day's practice to allow copies of these books to be received in evidence. That goes upon the general principle of not removing books of general concern. If a writing were on a wall, it might not give you evidence of the character of the handwriting, as probable of evidence who wrote it without producing the wall in court? Suppose a man, instead of printing a libel in the usual way were to write on the dead walls of the metropolis, is it to be said that he cannot be punished, because you cannot produce the wall in court?"

The principle of law is, that where you cannot get the best possible evidence, you must take the next.

The rule is not confined to documents in the ordinary sense. Its scope is not precisely defined. It matters not whether written words are put forward as true or false, whether they define right or create rights, whether they make statements, express emotions or constitute insults--deeds, contracts, bills of exchange, libels, threatening letters and love letters are all alike subject to the rule. But the rule does not apply to writings or other markings that are not relied upon for their meaning but only as a part of the appearances of a thing (Commissioner for Railway v. Young (1962) 106 CLR 535 at 555 WINDEYER, J. who relied Boyle v. Wiseman. (1855) II Ex. 360 at 367 and the American cases, Commonwealth v. Morrell. (1868) 99 Mass 542; Benjamin v. The State. (1915) 67 So. 792).

The rule excluding secondary evidence did not go beyond writing and include physical objects. "Where the question is as to the effect of a written instrument, the instrument itself is primary evidence of its contents, and until it is produced, or the non-production is excused. No secondary evidence can be received. But there is no case whatever deciding that when the issue is as to the State of chattel, c.g., soundness of a horse, or the equality of the bulk of the goods to the sample, the production of the chattel is the primary evidence and that no other evidence can be given until the chattel is produced in the court (R.v. Francis. (1874) LR 2 CCR 128 at 133). This is true of a picture where the question is whether a photograph is a copy (Lucas v. Williams & Sons. (1892) 2 QB 113). It is true of an article of clothing where the question is as to its manufactured condition (Hocking v. Ahlquist Bros. Ltd.. (1944) KB 120). It has been held, too, that upon the trial of an indictment containing counts for an unlawful assembly, seditious combinations and the like, production was unnecessary of flags, banners and playcards bearing seditious inscriptions and devices. "There is no authority to show that in a criminal case ensigns, banners, or other things exhibited in public view, and of which effect depends upon such public exhibition, must be produced or accounted for. If we were to hold that words inscribed on a banner so exhibited could not be proved without the production of the banner, upon what reason a witness should be allowed to mention the colour of the banner (R. v. Hunt, (1820)3 b. Alld. 566 at 574: 106 ER 768 at 771).

Applying these principles to the present facts the court concluded that the identity of the handwriting on the label could be proved by oral evidence, but not what was actually written on the label.

07. Rule Restricted to Written Documents

The courts have declined to extend the best evidence rule to documents consisting of film, tape and the like. There is little reason to burden these categories with a restrictive and formalistic rule conceived in the days before technology had begun to spawn new forms of storing information which give a new meaning to the term 'original'.

In Kajala v. Noble, (1982) 75 Cr. App. R. 149 (CA), a prosecution witness, by viewing a BBC news film, identified the accused as a member of a group of persons who had caused a serious public disturbance. The original film was retained by the BBC, and at trial the prosecution relied on a video-cassette, which the court was satisfied was an authentic copy of the original film. On appeal against conviction, it was argued for the accused that since the prosecution had relied upon the contents of the film, and since the film should be regarded as a document, primary evidence should have been required. The Court declined to extend the rule beyond 'written documents in the strict sense of the term' and held that it had no application to tapes or films.

Where a video-recording, which was said to show the accused committing an offence of theft, was mistakenly erased before trial, it was held to be proper for police officers who had viewed the recording to give oral evidence of its contents. RALPH GIBSON LJ said in Taylor v. Chief Constable of Cheshire [1986] 1 WLR 1479 at P 1486, "For my part I can see no effective distinction so far as concerns admissibility between a direct view of the action of an alleged shoplifter by a security officer and a view of those activities by the officer on the video display unit of a camera, or a view of those activities on a recording of what the camera recorded. He who saw may describe what he saw because, as ACKNER LJ said in Kajala v. Nable (1982) 75 Cr App. R. 149.... it is relevant evidence provided that that which is seen on the camera or recording is connected by sufficient evidence to the alleged actions of the accused at the time and place in question."

08. Public document [Clause (e)]

This clause is intended to protect the originals of public records from the danger to which they would be exposed by constant production in evidence. Secondary evidence is admissible in the case of public documents mentioned in s. 74. What s. 74 provides is that public records kept in any state of private documents are public documents, but private documents of which public records are kept are not in themselves public documents. A registered document, therefore, does not fall under either clause (e) or (f). The entry in the register book is a public document, but the original is a private document. A certified copy of the original cannot be given in evidence. The Gujarat High Court has held that a copy of a registered sale deed certified by the registration officer is a public document within the meaning of s. 74 and is, therefore, admissible for the purpose of proving the contents of the original document.[xxv]

Public documents can only be proved by their production or by secondary evidence of the nature described in this clause; they cannot be proved by the oral evidence of a witness (Gunga Ram v. The Emperor of India, (1902) PR No.5 of 1903(Cr)). The rule that a certified copy is the only secondary evidence admissible when the original is a public document, does not apply where the original has been lost or destroyed (Chandreshwar Prasad Narain Singh v. Bisheshwar Pratap Narain Singh (1926) 5 Pat 777).

09. Certified copies permitted by law [Clause (f)]

Certified copies are admissible as secondary evidence under this clause. Sections 76, 78 and 86 may be read along with it. Where an original document cannot be given in evidence owing to a statutory ban, its certified copy cannot be admitted in evidence, e.g. certified copy of the income-tax return (Devidatt v. Shriram (1931) 34 Bom LR 236: 56 Bom 324).

The last but one paragraph of this section provides "in case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible". This applies to the case in which the public document is still in existence on the public records (Kalandan v. Kunhunni, (1882) 6 Mad 80, 81). Where a case falls under clause (a) or clause (c) and also under clause (f) any secondary evidence may be received.[xxvi]

Where both the original and the certified copy of a public document were proved to have been lost, the court allowed secondary evidence in the form of an ordinary copy (Marwari Kumhar v. Bhagwanpuri Guru Ganeshpuri, AIR 2000 SC 2629: (2000) 7 SCC 333).

An application for production of a particular document was filed after 8 years of institution of the suit. The document sought to be produced was also a copy of the original document. The court said in Arati Bhargawa v. Ravi Kumar Bhargava. AIR 1999 Delhi 280 that such a document could not be accepted in evidence without showing any of the exceptional situations.

10. Documents which cannot be conveniently examined [Clause (g)]

This provision is meant for saving public time. Where the fact to be proved is the general result of the examination of numerous documents and not the contents of each particular document and the documents are such as cannot be conveniently examined in Court, evidence may be given, under this section, as to the general result of the documents by a person who has examined them and who is skilled in the examination of those documents, although they may be public within the meaning of this section and s. 74 (Sundar Kaur v. Chandreshwar Prasad Narain Singh, (1907) 34 Cal 293).

11. Objection to reception of secondary evidence in Appeal Court

If a copy of a document is admitted in evidence in the first Court without any objection no objection can be allowed to be taken in the Appeal Court as to its admissibility (Kishori Lal Goswami v. Rakhal Das Banerjee, (1903) 31 Cal 155; Akbur Ali v. Bhyea Lal lira. (1880) 6 Cal 666; Bachuram Mundul v. Peary Mohun Banerjee, (1883) 9 Cal 813; Narendra Narain Rai v. Bishun Chundra Das, (1885) 12 Cal 182; Chimnaji Govind Godbole v. Dinkar Dhondev Godbole, (1886) II Bom320; Thet She v. Moung Ba, (1905)3 LBR49. Amar Singh v. Tej Ram, AIR 1982P&H382).

Where no objection was raised when the certified copy of the Will was admitted, non-production of the original Will cannot subsequently be urged as a ground to invalidate the Wil1 (S.A. Quddus v. S. Veerappa, AIR 1994 Kant 20). The question of proof of a document is a question of procedure and can be waived. But a question of relevancy of document is a question of law, and can be raised at the appellate stage as well (Subbarao v. Venkata Rama Rao, AIR 1964 AP 53). The object of the rule is obvious, for, if objection is taken in the first Court, the party producing the copy can ask for an adjournment in order to get the original or else to give evidence justifying the admission of secondary evidence.

06. SPECIAL PROVISIONS AS TO EVIDENCE TO ELECTRONIC RECORD

Section 65A and 65 B run as follows.

[xxvii][S. 65A. The contents of electronic records may be relating proved in accordance with the provisions of section 65B.]

Admissibility of electronic records

[xxviii][S. 65B. (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:-

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether-

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period: or

(c) by different combinations of computers operating in succession over-that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,-

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub- section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,-

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation.-For the purposes of this section any reference to information being derived from other, information shall be a reference to its being derived therefrom by calculation, comparison or any other process.]

01. Information Technology Act, 2000 - Proof of contents of electronic records [Ss. 65A, 65B]

The new section, namely S. 65A, says that the contents of electronic records may be proved in accordance with the provisions of S. 65B. This section is also a new provision. It prescribes the mode for proof of contents of electronic records. The primary purpose is to sanctify proof by secondary evidence. This facility of proof by secondary evidence would apply to any computer output, such output being deemed as a document. A computer output is a deemed document for the purposes of proof. The section says in sub-so (1) that any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer and to be referred to as computer output, shall also be deemed to be a document. The section lays down certain conditions which have to be satisfied in relation to the information and the computer in question. Where those conditions are satisfied, the electronic record shall become admissible in any proceedings without further proof or production of the original as evidence of any contents of the original or of any fact stated in it.

02. Conditions as to relevancy of computer output [S. 65B (2)]

The conditions which have to be satisfied so as to make a computer output as evidence are stated in sub-Sn (2). They are as follows:

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process the information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) the information contained in the electronic record is of the kind which was regularly fed into the computer in the ordinary course of its activities;

(c) the computer should have been operating properly during the period of the data feeding, or, if it was not operating properly during that period or was out of operation, that gap was not such as to affect the electronic record or the accuracy of its contents;

(d) the information contained in the electronic record was derived or is reproduced from the information fed into the computer in the ordinary course of its activities.

Where the information was processed or fed into the computer on inter-linked computers or one computer after the other in succession, all the computers so used shall be treated as .one single computer. The references to a computer have to be construed accordingly [Sn 65B(3)]:

When a statement has to be produced in evidence under this section, it should be accompanied by a certificate which should identify the electronic record containing the statement and describe the manner m which It was produced, give the particulars of the device involved in the production of the electronic record showing that the same was produced by a computer and showing compliance with the conditions of sub-so (2) of this section. The statement should be signed by a person occupying a responsible official position in relation to the operation or management of the relevant activities. Such statement shall be evidence of the matter stated in the certificate. It should be sufficient for this purpose that the statement is made to the best of knowledge and belief of the person making it [Sn 65B(4)].

For the purposes of this section an information shall be taken to be supplied to a computer, if it is done in any appropriate form whether this is done directly with or without human intervention by means of any appropriate equipment, or if the information is supplied by any official in the course of his activities with a view to storing or processing the information even if the computer is being operated outside those activities.

An explanation to the section declares that for the purposes of S. 65-B any reference to information being derived from other information is to be taken to mean derived by calculation, comparison or any other process [Sn.65-B (Explanation)].

07. RULES AS TO NOTICE TO PRODUCE

S. 66. Secondary evidence of the contents¹ of the documents referred to in section 65, clause (a), shall not be given unless the party² proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his attorney or pleader, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case:

Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:-

(1) when the document to be proved is itself a notice;

(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;

(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;

(4) when the adverse party or his agent has the original in Court;

(5) when the adverse party or his agent has admitted the loss of the document;

(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.

This section lays down that a notice must be given before secondary evidence can be received under S. 65(a). Notice to produce a document must be in writing. Order XI, r. 15. of the Civil Procedure Code, prescribes the kind of notice to produce a document.

Notice is required in order to give the opposite party a sufficient opportunity to produce the document, and thereby to secure the best evidence of its contents.[xxix] Such notice may be dispensed with if it is not necessary on the pleadings, (Dinanath Rai v. Rama Rai, (1926) 6 Pat 102) or the Court thinks fit to dispense with it. (Surendra Krishan Roy v. Mirza Mahammad Syed Ali Matwali)

1. Secondary evidence of the contents

"Secondary evidence of the contents" means apparently "not...of the existence or condition" of the documents.[xxx]

2. Party

This word means not only adversary in the cause, but also a stranger 'legally bound to produce' the document.[xxxi]

3. Cases in which notice not required-[Proviso]

The proviso enumerates six cases in which a notice is not required to be given to the party in whose possession or power the document is, in order to render secondary evidence admissible.

The procedure for the production of documents in criminal cases is laid down in ss. 94-98 of the Criminal Procedure Code.

Section 175 of the Indian Penal Code punishes the person who omits to produce a document required by a public servant.

08. PROOF OF SIGNATURE AND HANDWRITING OF PERSON ALLEGED TO HAVE SIGNED OR WRITTEN DOCUMENT PRODUCED

S. 67. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.

This section merely requires proof of signature and handwriting of the person alleged to have signed or written the document produced (Abdool Ali v. Abdoor Rushman, (1874) 21 WR 429; Madholal Sindhu v. Asian. Assu. Co. Ltd., (1945) 56 Bom LR 147). Mere admission of execution of a document is not sufficient. Proof that the signature of the executant is in his handwriting is necessary.[xxxii]

Where merely the signature of a person to a type-written document was identified by a witness, it was held that what was formally proved was the signature and not the body of the document.[xxxiii]

The Evidence Act permits secondary evidence to be given with regard to the attestation of an attesting witness who is either dead or cannot be brought to Court. The signature of the attesting witness when proved in evidence is proof of everything on the face of the document and that he saw the executant make his mark (Ponnuswami Goundan v. Kalyanasundara Ayyar, (1934) 57 Mad 662).

As to the method of proof, Ss. 47 and 73 are relevant provisions.

Besides the question which arises as to the contents of a document (see Ss. 61-66), there is always the question when the document is used in evidence,- Is it what it purports to be? In other words, is it genuine? The evidence upon this point is dealt with in ss. 67-73. The nature of the evidence will depend to a large extent on the nature of the document. If it is a mere memorandum, such as the entry in a diary mentioned in s. 32(b), it must be proved that the diary was really that of the person whose statements it is said to contain. If it is a letter it must be shown who wrote it, or at any rate who signed it, for a signature to a document turns the whole document into a statement by the person who signs it. If it is an agreement it must be shown who executed it.  In the case of a money suit for goods sold on credit, the plaintiff examined his accountant who prepared the documents such as ledgers, challans, and corresponding bills, but who, in his cross-examination categorically stated that he did not know who prepared the documents. It was held that the documents in question could not be said to have been proved (Rukmanand Ajitsaria v. Usha Sales P. Ltd., AIR 1991 NOC 108 (Gau)). In the case of a document executed by the thumb impression of an illiterate person, the party putting forth the document has to prove that the document was read over and explained to the executant.[xxxiv]

01. Execution of document

Execution means signing, sealing and delivery of a document. The term may be defined as a formal completion of a deed. It is the last act or series of acts which completes it (Bhawanji Horbhum v. Devji Punja, (1894) 19 Bom 635).

Mere registration of a document is not in itself sufficient proof of its execution.[xxxv] Where a mere photostatic copy of the registered sale deed was placed on record, it was held that the mere proof of registration was not the proof of due execution. Where there is a failure to produce the original sale deed or its certified copy and non-examination of an attesting witness or scribe of the document, it would have to be held that execution of the document was not proved (Khushi Ram v. Findhi AIR 2003 HP 23).

The mere production of a registered deed is not sufficient to prove it. The identity of the executant has to be established by oral evidence before the deed can be taken to have been proved (Prem Raj v. Mishrimal, (1959) 9 Raj 573). In the case of a will, the burden lies upon its propounder to prove its genuineness, the deceased testator being no longer available to speak to its genuineness. Accordingly where the evidence produced by him was contradicting his claim and there was also inconsistency in the opinion of the handwriting expert, the will was held to be not proved (A. Chandrabati v. Laxmi Dei, AIR 1991 Ori 289).

A deed of conveyance was tendered in evidence which purported to bear the mark of G, as vendor, and which was duly attested by four witnesses. G, however, denied that she had ever executed the deed, and said that the mark was not hers. All the attesting witnesses were dead. A witness was called who knew the handwriting of one of the attesting witnesses, and who swore that the signature of that witness to the attestation clause of the deed was genuine. It was held that the deed was admissible in evidence, its execution by G being sufficiently proved.[xxxvi]

09. PROOF AS TO DIGITAL SIGNATURE

[xxxvii][S.67A. Except in the case of a secure digital signature, if the digital signature of any subscriber is alleged to have been affixed to an electronic record the fact that such digital signature is the digital signature of the subscriber must be proved.]

Proof of execution of document required by law to be attested.

S. 68. If a document is required by law¹ to be attested,² it shall not be used as evidence³ until one attesting witness at least has been called for the purpose of proving its execution,⁴ if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

Provided⁵ that it shall not be necessary to call an attesting witness in proof of the execution⁶ of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied.

This section applies to cases where an instrument required by law to be attested bears the necessary attestation. What the section prohibits is a proof of execution of a document otherwise than by the evidence of an attesting witness if available (Yeerappa Kavundan v. Ramasami Kavundan, (1907) 30 Mad 251; Ram Gopal Lal v. Aipna Kunwar (1922) 44 All 495: 49 IA 413).

This section applies only where the execution of a document has to be proved or when the allegation is that the executant was not in a fit state of mind to know the real nature of the document (Radhamohan v. Haribandhu AIR 1991 NOC 109 (Ori)). Where, however, the execution is not to be proved, it is not necessary to call any attesting witness, unless it is expressly contended that the attesting witness has not witnessed the execution of the document (Komalsing Kuwarsing v. Krishnabai, (1945) 48 Bom LR 83: (1946) Bom 146).

The object of placing more attestations than one upon a document whether at the party's voluntary instance or by requirement of law, is ordinarily not to demand the combined testimony of all at the trial, but merely to provide by way of caution a number of witnesses; so that the contingencies of death, removal of residence, and the like, may be guarded against, and one witness at least may be available. But the main object in statutes requiring attestation as an element of validity is to surround the act of execution with certain safeguards; the object of securing evidence for litigation is a secondary one.[xxxviii]

A mere general denial of a mortgage or not admitting it cannot be regarded as a specific denial of its execution within the meaning of the proviso to this section.

When there is only a general denial of execution and there is no cross examination regarding attestation of a witness who comes forward to swear to execution then it can be presumed that there was due attestation (Dashrathprasad v. Laloosingh, (19S 1) Nag 873).

01. Proof of Will

This section is not permissive or enabling. It lays down the necessary requirements which the Court has to observe in order that a document can be held to be proved. The principle underlying the section is that execution of the will must be proved by at least one attesting witness, that it is only an attesting witness who is entitled to prove the execution of the will. It is a concession that the legislature has made. If that concession does not result in complying with the mandatory requirements of this section the only proper method is to call the other attesting witness, so that both the attesting witnesses are before the Court, and the due execution of the will is proved by the two attesting witnesses which are necessary before a will can become a valid document.[xxxix] To prove a will it is not necessary that the attesting witness should depose that the other attesting witness had signed the will in the presence of the testator and after seeing the testator signing the will as both the attesting witnesses need not be present at the same time (KM. Varghese v. KM. Oommen, AIR 1994 Ker 85, dissenting from Road Fromroze v. Kanta Yarjvandas, AIR 1946 Bom 12, Yishni Ram Krishna v. Nathu Yithal, AIR 1949 Bom 266, K. Nookaraju v. P. Yenkaiarao, AIR 1974 AP 13 and Pattammal v. Kanniammal, AIR 1981 Mad 252). “A plain perusal of s. 68 of the Evidence Act shows that the requirement of examining at least one attesting witness is to be fulfilled 'if there be an attesting witness alive'. Where the attesting witnesses are dead the will can certainly be proved in the manner provided for proof of a document" (Balwant v. Mainabai, AIR 1991 MP 11; A Chandrabati v. Laxmi Dei, AIR 1991 Ori 289). Where the executant and attesting witnesses of a will were not alive, identification of their signature by another witness, present at the time of its execution was not necessary to prove the will (Haradhan Mahatha v. Dukhu Mahatha, AIR 1993 Pat 129). The mode of proving a will does not ordinarily differ from that of proving any other document except in the special circumstances as incorporated in section 63 of the Act.[xl] Merely from the vague evidence of the attesting witness and without taking all circumstances into consideration, the court should not conclude that the will was not duly executed.[xli]

The fact of the testator giving instruction for the making of a will was proved. He himself presented the will for registration and acknowledged its due execution. No vitiating circumstances were made out to rebut the presumption arising out of registration or to create any doubt about the presence of testators at the time of registration. The finding of the court below that the will was regularly executed did not call for any interference.[xlii]

1. Required by law

This means required by the law of the country where the property is situate. The rule as to the law of domicile is not extended to immovable property.

2. Attested

"Attested" means that a person has signed the document by way of testimony to the fact that he saw it executed (Alagappa Chettiyar v. Ko Kala Pai, (1940) Ran 199; Shamu Patter v. Abdul Kadir Ravuthan, (1912) 35 Mad 607: 39 IA 218: 14 Bom LR 1034). An attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment of the execution of the document by the executant (Lachman Singh v. Surendra Bahadur Singh, (1932) 54 All 1051 FB). A document cannot be attested by a party to it. The object of attestation is that some person should verify that the deed was signed voluntarily. Knowledge of the contents of a document ought not to be inferred from the mere fact of attestation (Nainsukhdas Sheonarayan Shop v. Goverdhandas, (1947) Nag 510).

‘Attested', in relation to an instrument, means attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it is not necessary that more than one of such witnesses should be present at the same time, and no particular form of attestation is necessary (see s. 3 of the Transfer of Property Act and s. 63(c) of the Indian Succession Act).

Where a document is written, executed and attested in one ink the presumption of due attestation is permissible under the maxim "Omnia praesumuntur rite et solemniter esse acta donee probetur in contrarium (Rail Bhimsing v. Fakirchand, (1947) Nag 649).

"Personal acknowledgment" is not the equivalent of "express acknowledgment; by words and an acknowledgment may be inferred from gestures or conduct (Amir Husain v. Abdul Samad, (1937) All 723).

According to the Allahabad, the Patna and the Bombay High Courts, the scribe of a mortgage deed cannot be counted as an attesting witness merely because he has signed the deed, even though the deed may in fact have been executed in his presence (Badri Prasad v. Abdul Karim, (1913) 35 All 254; Ram Bahadur Singh v. Ajodhya Singh, (1916) 20 CWN 699 (Patna); Dalichand v. Latu, (1919) 22 Bom LR 136 : 44 Bom 405; Amardas Mangaldas v. Haramanbhai Jethabhai, (1942) 44 Bom LR 643), but the Madras (Paramasiva Udayan v. Krishna Padhyachi, (1917) 41 Mad 535) and Calcutta (Jagannath Khan v. Bajrang Das Agarwala, (1920) 48 Cal 61; Abinash Chandra Bidyanidhi Bhattacharya v. Dasarath Malo, (1928) 56 Cal 598), Orissa[xliii] and Punjab and Haryana (Ujagar Singb v. Parmesh Knitting Works, AIR 1986 P&H 230) High Courts have held to the contrary. The Rangoon High Court has held that the writer of a document may perform a dual role; he may be an attesting witness as well as the writer. When a man places his signature upon a document and at the same time describes himself as the writer thereof, the inference is that he signs as the writer and nothing else, but, as a matter of fact, it can be shown that he signed not only as the writer but also as a witness of the fact that he saw the document executed or received a personal acknowledgment from the executant that he had executed it (Alagappa Cheuiyar v. Ko Kala Pai, (1940) Ran 199). The Bombay High Court has further held that where the writer has signed not as a scribe but as an attesting witness the attestation is good (Yacubkhan v. Guljarkhan, (1927) 52 Bom 219: 30 Bom LR 565). Where the only available attesting witness to a mortgage deed denies his attestation, it is permissible to prove the deed by calling its writer under s. 71 to depose to the execution of the deed by the mortgagor and to its attestation by the two witnesses.[xliv]

The direct evidence of the attestor will be "primary evidence". If there is no attesting witness alive, then the document must be proved in the manner provided by ss. 47 and 73. Should there be any doubt about the genuineness of the signature of an attesting witness, the same can be resolved through the opinion of an expert under s. 45 (Sumangala T. Pai v. Sundaresa Pai, AIR 1991 Ker 259).

When attestation is not specifically challenged and when an attesting witness is not cross-examined regarding the details of attestation his evidence that the deed was attested by the other attesting witnesses and by him is sufficient proof of attestation under this section. The law will then assume that when the witness swears that it was attested the witness means that it was attested according to the forms required by taw (Kuwarlal v. Rekhlal, (1950) Nag 321).

02. Documents requiring attestation

(1) A will (Ss. 57 and 63 of the Indian Succession Act, 1925); (2) a mortgage, the principal money secured by which is Rs. 100 or upwards (Transfer of Property Act, s. 59); (3) a gift of immovable property (Transfer of Property Act, s. 132).

Where the document was that of recoveyance, it did not require attestation (HS Rudrappa v. H.Y. Shivlingappa, AIR 2000 NOC 42: 1999 AI HC 4543). The proper mode of attesting is that the witness should either sign or affix his thumb impression himself. The section does not permit the delegation of that function, if he does so, he is not an attesting witness.

03. It shall not be used as evidence

These words means that the document cannot be used in a suit for enforcement of the document, leaving the ordinary provisions of law in s. 67 to apply where the document is to be used for any other purpose. Although a document cannot be used in evidence as a mortgage deed, which requires attestation, yet this section does not prevent it from being used in evidence for the purpose of proving it as an acknowledgment saving limitation (Shyam Lal v.Lakshmi Narain, (1939) All 366).

04. Until one attesting witness at least has been called for the purpose of proving its execution

The word 'called' means tendered for the purpose of giving evidence (Moti Chand v. Lalta Prasad, (1917) 40 All 256). It is not used in the sense of summoned (Ruprao v. Ramrao, (1952) Nag 189). It is not necessary for the attesting person, in order to prove execution, to point to the signature or mark made by the executant. It does not therefore follow that because a witness is unable to point to the signature on a document of the person whose signature he purports to have attested, he has failed to prove that signature (Raizulnisa Begam v.Lala Puran Chand, (1943) 19 Luck 443).

This section provides that a document cannot be held to have been proved unless one of the attesting witnesses is called where it is not established that all of them are dead or were incapable of giving evidence (Ananta Raghuram v. Rajah Bommaderara, AIR 1958 Andhra 418). The words "at least" presuppose that more evidence may be required and it can only be by reference to the circumstances of each case that the quantum of evidence necessary to discharge the onus of proof can be measured. A will duly signed by the testator and attested by two witnesses, who attest not in the presence of each other but at different times on the acknowledgment by the testator of his own signature, cannot be admitted to proof on the evidence of only one of the attesting witnesses (Roda Framroze v. Kanta Varjivandas, (1945) 47 Bom LR 709 : (1946) Bom 295; Ruprao v. Ramrao, (1952) Nag 189). There is no requirement that attesting witnesses should identify each other (Krishna Kumar v. Kayastha Pathsala, AIR 1966 All 570). Where the attesting witnesses proved the execution, it was immaterial that their names were not mentioned in the will (Beni Chand v. Kamla Kunwar, AIR 1977 SC 63: 1977(4) SCC 554). Where the sole evidence of title was a "will" and the attesting witness failed to prove it, it would not be said that the will had been legally proved (Rameshwari Devi v. Shvam Lal, AIR 1980 All 292). It would not be necessary to call an attesting witness where execution of a deed was not denied, only its validity was questioned on the ground of undue influence (Engineers (Overseas) Cotpn. v. W.B. Fin. Corpn., AIR 1986 Ca1132).

05. Registered documents-[Proviso]

The proviso was added by Act XXXI of 1926. It simplifies the difficulty of calling attesting witnesses where the document to be proved is a registered one and is not a will and its execution is not specifically denied by the person executing it.[xlv] If the attestation is not specifically denied it is not necessary to call any attesting witness (Yacubkhan v. Guljarkhan, (1927) 52 Bom 219. 30 Bom LR 565; Hari Nath Ghosh v. Nepal Chandra Ray Chaudhuri, (1937) I Cal 507, Shea Ratan Singh v. Jagannath, (1936) 12 Luck 681; Bhagwandas Dhondidas v. Basawwa, (1956) 58 Bom LR 809). What has to be specifically denied is the execution of the document and a mere denial of the genuineness of the document is not enough to indicate that the execution of the document was denied (K. Narasimhappa v. Lokkanna; AIR 1959 Mys 148).

The words "specifically denied" means specifically denied by the party against whom it is sought to be used and not only by the executant. Where, therefore, a party against whom a document is sought to be used denied its execution, even though the executant does not do so, it is necessary to call an attesting witness to prove it (Chandra Kali v. Bhabuti Prasad, (1943) 19 Luck 365). A third party who is a party to a mortgage suit but not to the mortgage deed can deny execution and require proof of attestation when the executant of the deed admits execution (Syed Zaharul Hussain v. Mahadeo, (1948) Nag 621). Where the plaintiff alleged that the executant of the gift deed was so old and infirm that he could not understand the nature of the document, the Court said that it was not "a specific denial" (Chuttan Lal v. Shanti Pd., AIR 1981 All 50). Where the execution of a registered gift deed was not denied by the executant, proviso to s. 68 was not attracted (Shyama Devi v. Premvati, AIR 1996 All 57). The proviso to section 68 is not applicable to the sale deed of immovable property, Even if the sale deed has been attested by witnesses, they need not be examined (Hans Raji v. Yosodanand, AIR 1996 SC 761: 1996 (7) SCC 122).

A registered deed of gift of immovable property was signed by the donor and attested by the witnesses. The donor also admitted execution of the gift in favour of the appellant. It was held that the deed was duly proved even if one of the attesting witnesses was not called upon to testify to the execution (Surendra Kumar v. Nathulal, AIR 2001 SC 2040).

The Madras High Court has held that the proviso has a retrospective effect as it relates to procedural law and not to substantive law. If the execution of a deed required to be attested by law, is not denied by the executant, it need not be proved by any attesting witness, though it might have been executed before the enactment of the proviso (Thayammal v. Mutukumaraswami Chettiar, (1929) 53 Mad 119).

06. Will

To prove the execution of a will, mere examination of its writer or proof of his si.ffinature[xlvi] or the fact that the will was registered one was held to be not sufficient.[xlvii]

Examination of at least one attesting witness is mandatory. Where only one attesting was alive but he could not be produced despite best efforts and an application for filing additional evidence was made at the late stage of arguments, it was held that the application was to be allowed since proof of registered will was not possible without examining at least one attesting witness.[xlviii]

Where the will in question was a registered document and was more than 50 years old, and all the attesting witnesses and scribe were dead and, therefore, the question of their examination did not arise, it was held that, in the absence of any suspicious circumstances, the presumption of genuineness of the will prevailed (Kesarapu Manikyalu v. Venna Pertimallaya, AIR 2000 NOC 20 (AP)).

The scribe of a will stated that the will was scribed by him at the instance of the testator who was in a fit state of health and mind and that the will was signed by him after it was read over to him. This statement of the scribe, the court said, amounted to the statement of an attesting witness. The marginal witness also corroborated the statement of the scribe. It was immaterial that the attesting witness did not say that he signed the will in the presence of the executant.[xlix]

07. Execution

'Execution' means not only signing by the person executing the document but also the attestation of his signature by witnesses where it requires such attestation (Hari Nath Ghosh v. Nepal Chandra Ray Chaudhuri, (1937) I Cal 507).

10. PROOF WHERE NO ATTESTING WITNESS WAS FOUND

S. 69. If no such attesting witness can be found, or if testing witness found, the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.

An attesting witness, if available, should be called in evidence. If the attesting witness is dead, or is living out of the jurisdiction of the Court or cannot be found after diligent search,[l] or if the document purports to have been executed in the United Kingdom of Great Britain and Ireland, two things must be proved:

(I) the signature of one attesting witness, and

(2) the signature of the executant.

Where the executant of, and all the marginal witnesses to, a mortgage deed were dead, it was held that the mortgage deed was sufficiently proved by evidence that the signature of the mortgagor was in his handwriting and that the signatures of two of the marginal witnesses were in their handwriting (Uttam Singh v. Hukam Singh, (1916) 39 All 112).

11. ADMISSION OF EXECUTION BY PARTY TO ATTESTED DOCUMENT

S. 70. The admission¹ of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.

This section serves as a proviso to s. 68.

The effect of this section is to make the admission of the executant a sufficient proof of the execution of a document as against the executant himself, (Jagannath v. Ravji (1922) 24 Bom LR 1296 : 47 Bom 137; Bhagwandas' Dhondidas v. Basawwa (1956) 58 Bom LR 809) even though it may be a document attestation of which is required by law.( Asharfi Lal v. Musammat Nannhi (1921) 44 All 127; Raja Ram v. Thakur Rameshwar Bakhsh Singh (1936) 12 Luck 109) The document is not for that reason binding on other persons.( Arjun Sahu v. Kelai Rath, (J922) 2 Pat 317) An attested document means a duly attested one, and the execution that is contemplated in this section is a due execution or execution in accordance with what the law requires for a particular document; so, if a question of attestation is put in issue, it is incumbent on the plaintiff to prove that the document has been duly attested before this section can be relied on (Davood Rowther v. Ramanathan Chettiar, (1938) Mad 523).

Scope.- This section operates only where the person relying on a document has not given any evidence at all of the due execution of the document by the executant but relies on an admission of execution by the latter. So that if a mortgagor admits execution of a document in the written statement, it is wholly unnecessary for the mortgagee to adduce any evidence as to the execution of the document. It is only in cases where it appears on the face of a document or it is positively made out by the evidence on record that a document required by law to be attested has not been attested in accordance with law that this section cannot be made applicable in spite of the admission of a party to an attested document of its execution by himself for the simple reason that a Court cannot shut its eyes to obvious facts appearing on the face of a document or on the record (Raja Ram v. Thakur Rameshwar Bakhsh Singh, (1936) 12 Luck 109).

01. Admission

The admission here spoken of relates only to the execution. It must be distinguished from the admissions mentioned in ss. 22 and 65(b) which relate to the contents of a document.

The Calcutta and the Allahabad High Courts have held that the word 'admission' relates only to the admission of a party in the course of the trial of a suit, and not to the attestation of a document by the admission of the party executing it. In other words, it has no relation to any admission of execution made before an attesting witness without reference to any suit or proceeding (Abdul Karim v. Salimun, (1899) 27 Cal 190; Raj Mangal Misir v. Mathura Dubain, (1915) 38 All 1. See Asharfi Lal v. Musammat Nannhi, (1921) 44 All 127). But the Patna and the Rangoon High Courts have laid down that an admission under this section is admissible in evidence even though it be an admission not made in the course of legal proceedings pending before a Court of Justice, but is an admission made antecedent to the institution of legal proceedings (Nageshwar Prasad v. Bachu Singh, (1919) 4 PLJ 511, doubted in Musammat Hira Bibi v. Ramdhan Lal, (1921) 6 PLJ 465; Aung Rhi v. Ma Aung Krwa Pru, (1923) 1 Ran 557). The Madras High Court has adopted the view of the Calcutta and the Allahabad High Courts and held that the admission within the meaning of this section must be an admission made for the purpose of or having reference to the cause either in the pleadings or during the course of the trial.[li]

12. PROOF WHEN ATTESTING WITNESS DENIES THE EXECUTION

S. 71. If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.

01. Principle

Where an attesting witness has denied all knowledge of the matter, the case stands as if there was no attesting witness, and the execution of the document may be proved by other independent evidence.[lii] This section only operates if the attesting witness denies or does not recollect the execution of the document or has turned hostile.[liii] Under it execution of a document includes attestation (Laksman Sahu v. Gokul Maharana, (1921) 1 Pat 154. Ram Ratan v. Bittan Kaur, AIR 1980 All 395).

The attestation of a document does not amount to an admission of its contents by the attesting person unless it can be proved that the document was read over to him and that he made the attestation conscious of the statement made in the document (Roop Lal v. Shanker. (1951) 1 Raj 597).

This section is a sort of a safeguard introduced by the Legislature to the mandatory provisions of s. 68, where it is not possible to prove the execution of the will by calling attesting witnesses, though alive. This section can only be requisitioned when the attesting witnesses who have been called fail to prove the execution of the will by reason of either their denying their own signatures, or denying the signature of the testator, or having no recollection as to the execution of the document. The section has no application when one attesting witness has failed to prove the execution of the will and other attesting witnesses are available who could prove the execution if they were called (Vishu Ramkrishna v. Nathu vithal, (1948) 51 Bom LR 245). Section 71 cannot be so used to as to allow a party to give a go-buy to the mandate of s. 68 qua the requirement of calling an attesting witness. Where one attesting witness could not recollect and the other attesting witness, though available, was not called, it was held that the will was not proved as the mandatory requirement of s. 68 was not satisfied.[liv]

13. PROOF OF DOCUMENT NOT REQUIRED BY LAW TO BE ATTESTED

S. 72. An attested document not required by law to be attested may be proved as if it was unattested.

01. Principle

Where the law does not require attestation for the validity of a document, it may be proved by admission or otherwise, as though no attesting witnesses existed.

14. COMPARISON OF SIGNATURE WRITING OR SEAL WITH OTHERS ADMITTED OR PROVED

S. 73. In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made,¹ any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person² may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

The Court may direct any person present in Court to write any words or figures³ for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

This section applies also, with any necessary modifications, to finger impressions.

01. Principle

The provisions of this section will apply only when a matter is pending before the Court and not otherwise (T. Subbiah v. Ramaswamy. AIR 1970 Mad 85). The Court may compare the disputed signature, writing, or seal or a person with signatures, writings or seals which have been admitted or proved to the satisfaction of the Court to have been made or written by that person. A Court may rely upon its own comparison of the signature, writing, or seal, unaided by expert evidence.[lv]

The rule of prudence is that comparison of signatures by Courts as a mode of ascertaining the truth should be used with great care and caution (Nagappa Chendappa v. Nannibu, AIR 1960 Mys 220). The dispute about the genuineness of handwriting or signature should not be decided by the court merely on the basis of its personal comgarison.[lvi] This section does not infringe Art. 20(3) of the Constitution of India (State of Bombay v. Kathi Kalu, (1961) 64 Bom LR 240 (SC)). Thus it was pointed by the Bombay High Court in a case before it that where the prosecution had failed to prove that the handwriting and signature on a document were those of the accused, the court itself comparing the signature on the vakalatnama with the document would not constitute evidence of signature and much less of handwriting (Vishwanath Mahadev Karkhania v. State of Maharashtra; 1991 Cr LJ 3146 (Bom)).

Though the court is competent to do so, it would not normally compare signature of its own (D. Pandi v. Dhanalakshmi Bank Ltd. AIR 2001 Mad 243).

Although S. 73 specifically empowers the court to compare the disputed writings with the specimen or admitted writings shown to be genuine, prudence demands that the court should be extremely slow in venturing an opinion on the basis of mere comparison, particularly when the quality of evidence in respect of specimen or admitted writings is not of high standard or is not beyond doubt.[lvii]

Handwriting can be proved in the following ways:-

(1) By proof of signature and handwriting of the person alleged to have signed or written the document (s. 67).

(2) By the opinion of an expert who can compare handwritings (s. 45).[lviii]

(3) By a witness who is acquainted with the handwriting of a person by whom it is supposed to have been written and signed (s. 47).

(4) By comparison of signature, writing or seal with others admitted or proved (s. 73).

01. By whom it purports to have been written or made

According to the Bombay High Court this expression means, by whom it is alleged to have been written or made.[lix] The Calcutta High Court in Barindra Kumar Ghose v. Emperor, (1909) 37 Cal467, 502, 503. See Sarojini Dasi v. Hari Das Ghose, (1921) 49 Cal 235; Khijiruddin Sonar v. Emperor, (1925) 53 Cal 372 has construed it to mean that the writing which is in dispute must itself in terms express or indicate that it was written by the person to whom the writing is attributed. It has observed that the section "does not sanction the comparison of any two documents, but requires that the writing with which the comparison is to be made ...shall be admitted or proved to have been written by the person to whom it is attributed, and next the writing to be compared with the standard ...must purport to have been written by the same person, that is to say, the writing itself must state or indicate that it was written by that person ...a comparison of handwriting is at all times as a mode of proof hazardous and inconclusive, and especially when it is made by one not conversant with the subject and without such guidance as might be derived from the arguments of counsel and the evidence of experts.”

According to the Bombay view when an anonymous writing is produced and ascribed by the prosecution to a particular person, the case for the prosecution must be taken to be that having regard to the admitted documents, and the comparison between them and the disputed writing, the prosecution alleges that the disputed document purports to have been written or made by the accused.[lx]

02. Signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person

Where such signature, writing or seal on a particular document is not proved or admitted to be genuine, it cannot be legitimately used for comparing it with the signature, writing or seal or other documents (Sri Prasad v. Special Manager, Court of Wards, Ba/rampur Estate, (1936) 12 Luck 400).

Specimen signatures and writings made by an accused person while he is in the custody of the police and while the police are investigating into the offence are admissible in evidence at the trial of the accused for the offence of forgery (Emperor v. Ramrao Mangesh, (1932) 56 Bom 304 : 34 Bom LR 598).

3. 'Court may direct any person present in Court to write any words or figures'.- This section limits the power of the Court to direct a person present in Court to write any words or figures only where the Court itself is of the view that it is necessary for its own purposes to take such writing in order to compare the words or figures so written with any words or figures alleged to have been written by such person. The power does not extend to permitting one or the other party before the Court to ask the Court to take such writing for the purpose of its evidence or its own case (Punamchand v. State of M.P., (1957) 59 Bom LR 1165; R.B. Khajotia v. The State of Maharashtra, (1972) 75 Bom LR 116). The Court also cannot send such a document to an expert who is a prosecution witness, but it can call its own expert as a Court-witness (Hiralal v. State, AIR 1958 Cal 123). The writing obtained by the Court under this section does not come within the expression 'evidence' (Ram Swarup v. The State of U.P. AIR 1958 All 119).

A direction to the accused to give a specimen writing can only be issued by the court holding inquiry under the Criminal Procedure Code, 1974 or the court conducting the trial of the accused person. The person under investigation against whom no case is pending cannot be compelled to provide any specimen. The exercise of this power by anyone else, for example, as in this case, by the Tehsildar or the Executive Magistrate, will not be valid even if the accused failed to raise any objection (Sukhvinder Singh v. State of Punjab, (1994) 5 SCC 152: 1994 SCC (Cri) 1376).

The words "any person present in Court" may not include an onlooker or a spectator who has come to Court for purpose of sightseeing or witnessing the proceedings in Court. The words refer to persons who are parties to a 'cause' pending before the Court and may include the witnesses of the contesting parties in the cause.[lxi]

A Court can call upon the accused to give his writing in Court and make it available for comparison by an expert (State of Mysore v. Gapala Rao. (1953) Mys 697; State v. Parameswaran Pillai, (1952) TC 447). Though, S. 73 does not specifically say as to who could make such a comparison but reading S. 73 as a whole, it is obvious that it is the Court which has to make the comparison and it may form the opinion itself by comparing the disputed and the admitted writings or seek the assistance of an expert who will put before the Court all the material, together with reasons, which induced the expert to come to a conclusion that the disputed and the admitted writings are of one and the same author so that the court may form its own opinion by its own assessment of the report of the expert based on the data furnished by the expert. The function of a handwriting expert is to express his opinion after a scientific comparison of the disputed writing with the admitted writing with regard to the points of similarity and dissimilarity in the two sets of writings (Sukhvinder Singh v. State of Punjab. (1994) 5 SCC 152. 162. 163: 1994 SCC (Cri) 1376). A Court has power to direct an accused person, present in Court to make his finger impression for the purpose of comparison with another impression supposed to have been made by him (King-Emperor v. Tun Hlaing, (1923) 1 Ran 759 FB; Zahuri Sahu v. King-Emperor. (1927) 6 Pat 623). In addition s. 165 enables the Court to call any person if it is of opinion that his evidence is necessary for proper decision (State (Delhi Admn.) v. Pali Ram. 1979 CrLJ 17 : 1979 MU(Cr) 850).

Where a person denied that he was married to the complainant and a letter supposed to have been written by him which had a bearing on the fact of marriage was also denied by him, the direction by the Court requiring him to give a specimen of his handwriting was held to be proper (Kumaran Nair v. Bhargavi, 1988 CrLJ 1000 Ker). Where in a case for enforcement of bank guarantee, the guarantor pleaded that his signature was forged, his specimen signatures which were admitted by him, were there on acknowledgement slip and summons, the court said that it was not necessary to ask him to give his specimen signature in the open court New Bank of India v. Sajitha Textiles. AIR 1997 Ker201.

A person required by the Court to give a specimen may refuse to do so. There is no element of compulsion in it. The only consequence of non- compliance is that the Court is free to draw an adverse presumption under s. 144 (Sushi Bhusan v. S.B.I. AIR 1986 Ori 218). Where the plaintiff refused to give his signature in court for comparison, the court refused to accept the prayer that a presumption should be drawn against him under S. 114. The court said a person could not be compelled to provide a specimen of his handwriting or signature because that would tantamount to asking him to become a witness against himself. It would be violative of Article s. 20(3) of the Constitution.  The High Court did not accept this approach. It said that such approach can be adopted only in reference to persons accused of a crime and would not extend to parties and witnesses in a civil proceeding (Shyam Sundar Chowkhani v. Kajal Kanti Biswas, AIR 1999 Gau 101).

The Court can direct even a stranger to the suit to write something. The son of a party was so directed in this case (Dinanth v. Sukhdeo, AIR 1980 Pat 253). The Court cannot take specimen handwriting at the stage of investigation. There must be a case before it.[lxii]

Comparing of disputed signatures on the counter foils by the High Court Judge without the aid of an expert or person conversant with disputed signatures was held to be illegal (Bharathan v. K. Sudhakaran, AIR 1996 SC 1140: 1996(2) SCC 704 relying on State (Delhi Admn.) v. Pali Ram. AIR 1979 SC 14: 1979 Cr LJ 17). Where the trial court formed the opinion that the signature on the document in question was that of the plaintiff and, without considering any other evidence, based the decision on its own comparison, it was held that this approach was not proper (Shyam Sundar Chowkhani v. Kajal Kanti Biswas, AIR 1999 Gau 101). Expert opinion should be obtained as a rule of prudence. The court should give cogent reasons for its conclusions (Ashok Kumar Uttamchand Shah v. Patel Mohmad. AIR 1999 Guj 108).

In order to secure evidentiary value to footmarks, it is not enough to show that the footmarks tally with the shoes of the accused. The evidence must go further and show that the marks have some peculiarity which is found in the shoes of the accused and will not be found in most other shoes (Emperor v. Bhika Gober. (1943) 45 Bom LR 884: (1944) Bom 25). The Court cannot be told not to exercise the power under the section only because it is hazardous to do so. The Court is not thereby assuming the role of an expert.[lxiii]

CHINAPPAREDDY J said at P 537: The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 expressly enables the court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, we are afraid, it is one of the hazards to which judges and litigants must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and the voices of science are heard. There are cases where neither side calls an expert, being available to afford him. In all such cases it becomes the plain duty of the court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the court. Where there is none, the court will have to seek guidance from some authoritive text book and the court's own experience and knowledge. But it must, discharge the plain duty, with or without expert. We may mention that Shashi Kumar v. Subodh Kumar AIR 1964 SC 529 and Fakhruddin v. State of M.P. AIR 1967 SC 1326: 1967 Cr LJ 1197, were cases where the court itself compared the writings. Section 73 does not make any difference between civil and criminal proceedings. In neither case does the section authorise the court to ask the prisoner to provide a specimen of his handwriting at the stage of investigation itself (State of U.P. v. Ram Babu Misra. AIR 1980 SC791: (1980) 2 SCC 343).

Specimen handwriting of stranger.-The Patna High Court in Dinanath v. Sukhdeo, AIR 1980 Pat 253 directed the defendant's son who was present in the court to give a sample of his handwriting, though he was not a party to the case. The court said: "The language (of the section) is wide in terms and empowers the court to give necessary directions to any person present in the court and there does not appear to be any reason to limit the expression "any person" to parties to the litigation. If the authenticity of a writing by a stranger is necessary to be decided in a case, such a person must come within the sweep of the section. Even if the meaning of the provision be assumed to be ambiguous, the court must construe it in a way which may advance the object of the section and the interest of justice."

15. PROOF AS TO VERIFICATION OF DIGITAL SIGNATURE

[lxiv][S.73A. In order to ascertain whether a digital signature is that of the person by whom it purports to have been affixed, the Court may direct-

(a) that person or the Controller or the Certifying Authority to produce the Digital Signature Certificate;

(b) any other person to apply the public key listed in the Digital Signature Certificate and verify the digital signature purported to have been affixed by that person.

Explanation.-For the purposes of this section, "Controller" means the Controller appointed under sub-section (1) of section 17 of the Information Technology Act, 2000]

01. Information Technology Act, 2000.-Proof of digital signature [Sn 73A]

For the purpose of ascertaining whether a digital signature is that of the person by whom it purports to have been affixed, the court may direct that person or the controller or the certifying authority have to produce the digital signature certificate. The court may also direct any other person to apply the public key listed in the digital signature certificate and verify the digital signature purported to have been affixed by that person. For this purpose the "controller" means the controller appointed under s. 17( 1) of tile Information Technology Act, 2000.

16. PUBLIC DOCUMENTS

S. 74. The following documents are public documents:-

(1) documents forming the acts or records of the acts.¹

(i) of the sovereign authority,

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country;

(2) public records kept in any State of private documents.²

Documents are divided into two categories: public and private.

This section states what comes in the category of public documents. Section 75 states that all other documents are private.

Certain modes of proof are prescribed in regard to public documents as distinguished from private documents.

Sections 74-78 deal with (a) the nature of public documents, and (b) the proof which is to be given of them. Section 74 defines their nature; and ss. 76-78 deal with the exceptional mode of proof applicable in their case. The proof of private documents is subject 10 the general provisions of the Act relating to the proof of documentary evidence contained in ss. 71-73.

"There are several exceptions to the rule which requires primary evidence to be given ...The most important and conspicuous exception, however, is with respect to the proof of records, and other public documents of general concernment; the objection to producing which rests on the ground of moral, not physical inconvenience. They are, comparatively speaking, not liable to corruption, alteration, or misrepresentation,-the whole community being interested in their preservation, and, in most instances, entitled to inspect them; while private writings, on the contrary, are the objects of interest but to few, whose property they are, and the inspection of them can only be obtained, if at all, by application to a Court of justice. The number of persons interested in public documents also renders them much more frequently required for evidentiary purposes; and if the production of the originals were insisted on, not only would great inconvenience result from the same documents being wanted in different places at the same time, but the continual change of place would expose them to be lost, and the handling from frequent use would soon ensure their destruction. For these and other reasons the law deems it better to allow their contents to be proved by derivative evidence, and to run the chance, whatever that may be, of errors arising from inaccurate transcription, either intentional or casual. But, true to its great principle of exacting the best evidence that the nature of the matter affords, the law requires this derivative evidence to be of a very trustworthy kind, and has defined, with much precision, the forms of it which may be resorted to in proof of the different sorts of public writings."[lxv]

Public documents from an exception to the hearsay rule and their admissibility rests on the ground that the facts contained therein are of public interest and the statements are made by authorized and competent agents of the public in the course of their official duty.

01. Documents forming the acts or records of the acts

“The word 'acts' in the phrase 'documents forming the acts or records of the acts' is used in one and the same sense. The act of which the record made is a public document must be similar in kind to the act which takes shape and form in a public document. The kind of acts which section 74 has in view is indicated by section 78. An electoral roll is public document. It requires no formal proof. Certified copies are enough proof (Naladhar Muhapaira v. Seva Dibya, AIR 1991 Ori 166). The acts there mentioned are all final completed acts as distinguished from acts of a preparatory or tentative character. The inquiries which a public officer may make, whether under the Criminal Procedure Code or otherwise, mayor may not result in action. There may be no publicity about them. There is a substantial distinction between such measures and the specific act in which they may result. It is to the latter only ...that section 74 was intended to refer (Queen·Empress v. Arumugam, (1897) 20 Mad 189, 197 FB).

Statements recorded by police officers under S. 161 Cr PC are required by s. 115 (5) and (7), read together, to be furnished to the accused. Hence all the earlier case, before this provision was enacted in the Cr PC, 1973, which regarded such statements as public documents entitled to the privilege against disclosure under S. 123 of Evidence Act became out of date since then (Ram Jethmalani v. Director CBI. 1987 Cr LJ 570 (Del)).

A document which is brought into existence as a result of a survey, inquiry or inquisition carried out or held under lawful authority is not admissible In evidence as a public document unless the inquiry was a judicial or quasi-judicial inquiry and the document is not only available for public inspection, but was brought into existence for that very purpose. The statements in a document tendered in evidence as a public document should be statements with regard to matters which it was the duty of the public officer holding the inquiry to inquire into and report on.[lxvi] Records maintained by revenue officers relating to land revenue, survey and settlement, etc. are public documents. ‘Pahanies” and 'faisal patties' are public documents (K. Pedda Jangaiah v. Mandai Revenue Officer, Moinabad, 1996 AIHC 1006 (AP)). The documents issued by the concerned Government Department indicating salary and allowances of a deceased employee, does not require corroboration or any evidence to prove them and can be received as additional evidence by the appellate court (Subhandra Kumari v. Lallu Ram, AIR 1996 Del 64).

A document which purports to be a letter or report of an executive official is not a public document (Fail Ahmad v. Crown, (1913) PR No. I of 1914 (Cr)).

02. Published Scheme under Statute

A scheme was published in the Official Gazette under the Electricity Supply Act, 1948. The scheme envisaged installation of overhead transmission lines. The scheme had thus become a public document. The Notification had the effect of law under the provisions of the constitution. No adverse presumption could be drawn against a party for his failure to produce the document in the court (Vijay Kumar S. Rajput v. MC of Greater Bombay, AIR 2000 Cal 197).

Orders of civil court, FIR.- Certified copies of the orders of the civil court orders and FIR were allowed to be submitted because they are all public documents. They were admissible in evidence under S. 77 (Md. Akbar v. State of A.P., 2002 Cri LJ 3167 (AP)).

03. Executive officer

A school master comes within the purview of 'executive officer' and a copy of a certificate given by him is admissible in evidence if properly certified (Maharaj Bhanudas v. Krishnabai, (1926) 28 Bom LR 1225, 50 Bom 716). The check memo which is required to be maintained by the officers in charge of the counting table is a document forming record of the acts of public officers and, therefore, a certified copy given by the collector in whose custody the document is kept can be admitted in evidence in proof of the contents of the original document (Banamli Das v. Rajendra Chandra, AIR 1975 SC 1863: 1976(1) SCC 54).

04. Marriage register

Hindu Marriage Register has been held to be a public document. Its contents were, therefore, provable by producing certified copies (Manjula v. Mani, 1998 Cri LJ 1476 (Mad)). Where the documentary evidence based in the official registration of marriage was produced, it was accepted as a proof of marriage for award of interim maintenance. The contrary evidence produced by the husband in the shape of Ration Card and the Voters List did not show any date of marriage of the accused with any other person (Kashi Nath Naskar v. Aparupa Naskar, 2003 Cri LJ1201 (Cal)).

A death certificate was issued by a police station. The death was not unnatural. A set of police officers, who prepared the panchanama, it could not be said of them that they did so in discharge of official duty enjoined upon them. No reasons were given for placing the matter on record. The certificate could not also be described as a part of a public record. Hence, the certificate was of weak evidentiary value. Its rejection from evidence was not improper.[lxvii]

05. Public records kept in any state of private documents

This clause refers to public records or original will and of registered documents. According to the Bombay High Court an income-tax return is not a public document or a public record of a private document (Devidatt v. Shriram; (1931) 34 Bom LR 236, 56 Bom 324. Same is the view of the Rangoon High Court: Anwar Ali v. Tafozal Ahmed, (1924) 2 Ran 391). Similarly, the Calcutta High Court has held that certified copies of assessment or dues and order sheets are inadmissible in evidence (Pramatha Nath Pramanik v. Nirode Chandra Ghosh, (1939) 2 Cal 394). The Madras High Court has held that an income-tax return or a statement filed in support of it is a public document and certified copies will be admissible under s. 65 (c) (Rama Rao v. Venkataramayya, (1940) Mad 969 FB). Memorandum of Association of a company is a public document within the meaning of this section (Binani Properties v. G.A. Hossein & Co., AIR 1967 Cal 390). Electoral roll prepared under the Representation of the People Act is a public document (Kirtan v. Thakur, AIR 1972 Ori 158). A plaint or a written statement filed in a case is not a public document (Gulab Chand v. Shea Karan Lall, AIR 1964 Pat 45. But for a contrary view see Jagdishchandra v. State of Gujarat, 1989 Cr LJ 1724 (Guj)). An agreement between a Maharaja and Government setting up a Gurudwara as a public trust and the Government setting a scheme of constituting a Temples' Board of Management including the Gurudwara, is a part of public records-s-a public document and, therefore, needs no formal proof (Kabul Singh v. Ram Singh AIR 1986 All 75). So is true of a wakf deed (Fazal Sheikh v. Abdur Rahman AIR 1991 Gau 17) and a sale deed (Jagdishchandra v. State of Gujarat, 1989 Cr LJ 1724 (Guj)) which are private documents but are recorded with the sub-registrar.

In a case of this kind, a Division Bench of Gauhati High Court in Narauam Das v. Md. Masadharali, (1991) 1 Gau LR 197 (DB) explained the status of such documents in these words: 'Public records are those records which a Government unit is required by law witch it is necessary to keep in discharge of duties imposed by law. A public record is one required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said or done. Therefore, a private document would be a 'public record' within the meaning of S. 74 if the private document is filed and the public official is required to keep it for a memorial or permanent evidence of something written, said or done.

The Gauhati High Court has held that a registered power of attorney is not a public document and, therefore, a certified copy cannot be admitted as equivalent to primary evidence. It would rank as a secondary evidence and would be admissible only when any of the categories of admissibility under s. 65 is proved to be available (Bidhan Paul v. Paresh Chandra Ghose, AIR 2002 Gau 46). Explaining the reason, the court said in the above case that the Registration Act, 1908 provides for registration of documents and the method of registration is that the contents of documents are copies in a book maintained in the office of the sub-Registrar which is commonly called the "Volume Book". Thus the book contains only copies of documents and not original documents. Documents so registered do not become public documents. Only those public records which keep private documents and not copies of private documents are treated as public documents.[lxviii]

06. Medico-legal report

In a medico-legal case, the medical officer prepares the (MLC) report as a public servant in discharge of his duties and the (MLC) report is a public document, the contents of which are admissible in eVldence (Dalip Kumar v. State, 1995 Cr LJ 1742 (Del)). Neither the post-mortem report nor any certificate issued by the doctor regarding the date of death, is a public document and they must be proved by the doctor concerned (State v. Bhola Pal. 1995 Cr LJ 3717 (Cal)).

The document furnished to the Press Council of India by organizations in order to substantiate their claims to be recognized by the Press Council, are public documents and are open to inspection (lndian Federation of S. & M. Newspapers v. Press Council of India AIR 1996 Del 90).

07. School register

The age of the accused had to be determined for the purposes of the Juvenile Justice Act, 1985. There was a concurrent finding of courts below that he was of the age between 19-20 years and, therefore, not a juvenile. This finding was based upon the report of the Medical Board. The doctor who examined the accused was not produced as a witness. The school leaving certificate showed the age to be 15 years. No evidence was produced to show that the certificate was wrong. The school records could not be doubted for the fact that the admission register was not signed by the father of the accused (Prem Chand Sao v. State of Jharkhand 2003 Cri LJ NOC 66 (Jhar)).

08. Records of nationalized banks

Records of nationalized banks have been taken to be in the category of public documents. They are, therefore, admissible without further proof. The examination of the person who prepared the document which is being offered in evidence is not necessary (Gorantla Yenkateshwarlu v. B. Demudu, AIR 2003 AP 251).

17. PRIVATE DOCUMENTS

S.75 All other Documents are Private

Documents which are not public documents are private documents eg. contracts, leases, mortgage deeds etc.

18. CERTIFIED COPIES OF PUBLIC DOCUMENTS

S. 76. Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.

Explanation.-Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.

This section provides the means of proof of public documents which any person has a right to inspect. There is a common law right of a person to take inspection of a document in which that person is interested for the protection of such interest (Shamdasani v. Sir Hugh Cocke. (1941) 43 Bom LR 961 : (1942) Bom 71). The person claiming interest in the specified land can not be refused certified copies of 'pahanies' and 'faisal patties' on the ground that the land in question is classified in the revenue records as Government land (K. Pedda Jangaian v. Mandal Revenue Officer, Moinabad, 1996 AIHC 1006 (AP)).

The section requires that a copy of a public document given by a public officer should bear a certificate written at the foot of such copy that it is a true copy of such document. Where a copy bears no certificate and it is not supported by the evidence of the person who prepared it, it is not admissible in evidence (Khadim Ali v. Jagannath, (1940) 16 Luck 230). But a carbon copy of the Court order issued in official process but not marked as "true copy” was allowed in evidence.[lxix]

19. PROOF OF DOCUMENTS BY PRODUCTION OF CERTIFIED COPIES

S. 77. Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.

In reference to a claim for compensation before the Accident Claims Tribunal, the Rajasthan High Court held that the Tribunal has to follow summary procedure without insisting upon strict compliance of the provisions of the Evidence Act. The court said that certified copies of the FIR, inspection map, site inspection memo, panchanama, injury report or post mortem report and other relevant documents produced by police officer or doctor while discharging official duties should have been admitted in evidence without any formal proof (Rajasthan State Road Transport Corpn. v. Nand Kishore, AIR 200 1 Raj 334).

In a compensation claim for land acquisition, comparable sales method was adopted for working out the compensation amount. It was held that certified copy of a registered agreement of sale was admissible without examining the parties to the document (State of Haryana v. Ram Singh, AIR 200 1 SC 2532).

20. PROOF OF OTHER OFFICIAL DOCUMENTS

S. 78 The following public documents may be proved as follows:-

(1) Acts, orders or notifications of the Central Government in any of its departments, or of the Crown Representative or of any State Government or any department of any State Government,-

by the records of the departments, certified by the heads of those departments respectively, or by any document purporting to be printed by order of any such Government or, as the case may be, of the Crown Representative;

(2) the proceedings of the Legislatures,-

by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting to be printed by order of the Government concerned;

(3) proclamations, orders or regulations issued by Her Majesty or by the Privy Council, or by any department of Her Majesty's Government,-

by copies or extracts contained in the London Gazette, or purporting to be printed by the Queen's Printer;

(4) the Acts of the Executive or the proceedings of the Legislature of a foreign country,-

by journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some Central Act;

(5) the proceedings of a municipal body in a State,-

by a copy of such proceedings, certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such body;

(6) public documents of any other class in a foreign country,-

by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a notary public, or of an Indian Consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.

78-A. Copies of public documents, to be as good as original documents in certain cases.-

Notwithstanding anything contained in this Act or any other law for the time being in force, where any public documents concerning any areas within West Bengal have been kept in Pakistan, then copies of such public documents shall, on being authenticated in such manner as may be prescribed from time to time by the State Government by notification in the Official Gazette, be deemed to have taken the place of, and to be, the original documents from which such copies were made and all references to the original documents shall be construed as including references to such copies."

This section specifies the various ways in which the contents of a public document can be proved. The word 'may' is used only as denoting a mode of proof other than the ordinary one, namely, the production of the original. For, when the Original is a public document within the meaning of S.74, a certified copy of the document, but no other kind of secondary evidence, is admissible.[lxx]

21. PRESUMPTIONS AS TO DOCUMENTS

There are certain presumptions in respects of documentary evidence which ar5e reproduced below.

01. Presumption that a certificate, certified copy or other document, to be genuine

S. 79. The Court shall presume to be genuine every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly authorised thereto by the Central Government:

Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.

The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed it, the official character which he claims in such paper.

Sections 79 to 90 deal with certain presumptions as to documents. This section proceeds upon the maxim omnia proesumuntur rite esse acta (all acts are presumed to be rightly done). In fact all the following sections down to s. 90 inclusive, are illustrations of, and founded upon, this principle. But though the Courts are directed to draw presumption in favour of official certificates it is not a conclusive presumption.

02. Presumption as to Documents Produced as Record of Evidence

S. 80. Presumption as to documents produced as record of evidence

Whenever any document i.e. produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate or by any such officer as aforesaid, the Court shall presume –

 that the document is genuine; that any statement as to the circumstances under which it was taken, purporting to be made by the person signing it, and that such evidence, statement or confession was duly taken.

03. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents

S. 81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents

The Court shall presume the genuineness of every document purporting to be the London Gazette or [any Official Gazette, or the Government Gazette ] of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be a copy of a private Act of Parliament [of the United Kingdom] printed by the Queen’s Printer and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.

04. Presumption as to Gazettes in electronic forms

S. 81A. Presumption as to Gazettes in electronic forms

The Court shall presume the genuineness of every electronic record purporting to be the Official Gazette, or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody.]

05. Presumption as to document admissible in England without proof of seal or signature

S. 82. Presumption as to document admissible in England without proof of seal or signature

When any document is produced before any Court, purporting to be a document which, by the law in force for the time being in England or Ireland, would be admissible in proof of any particular in any Court of justice in England or Ireland, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed, the Court shall presume that such seal, stamp or signature is genuine, and that the person signing it held, at the time when he signed it, the judicial or official character which he claims, and the document shall be admissible for the same purpose for which it would be admissible in England or Ireland.

06. Presumption as to maps or plans made by authority of Government

S. 83. Presumption as to maps or plans made by authority of Government

The Court shall presume that maps or plans purporting to be made by the authority of [ the Central Government or any State Government ] were so made, and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate.

07. Presumption as to collections of laws and reports of decisions

S. 84. Presumption as to collections of laws and reports of decisions

The Court shall presume the genuineness of every book purporting to be printed or published under the authority of the Government of nay country, and to contain any of the laws of that country and of every book purporting to contain reports of decisions of the courts of such country.

08. Presumption as to powers-of-attorney

S. 85. Presumption as to powers-of-attorney

The Court shall presume that every document purporting to be a power-of- attorney, and to have been executed before, and authenticated by, a notary public, or any Court, Judge, Magistrate, [Indian] Consul or Vice- Consul, or representative [***] of the [Central Government], was so executed and authenticated.

09. Presumption as to electronic agreements

85A. Presumption as to electronic agreements.

The Court shall presume that every electronic record purporting to be an agreement containing the digital signature of the parties was so concluded by affixing the digital signature of the parties.

10. Presumption as to electronic record and digital signatures

S. 85B. Presumption as to electronic record and digital signatures

(1) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the point of time to which the secure status relates.

 (2) In any proceedings, involving secure digital signature, the Court shall presume unless the contrary is proved that-

 (a) the secure digital signature is affixed by subscriber with the intention of signing or approving the electronic record;

 (b) except in the case of a secure electronic record or a secure digital signature, nothing in the section shall create any presumption relating to authenticity and integrity of the electronic record or any digital signature.

11. Presumption as to Digital Signature Certificates

S. 85C. Presumption as to Digital Signature Certificates

The Court shall presume, unless contrary is proved, that the information listed in a Digital Signature Certificate is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber.]

12. Presumption as to certified copies of foreign judicial records

S. 86. Presumption as to certified copies of foreign judicial records

The Courts may presume that any document purporting to be a certified copy of any judicial record of [[***] any country and not forming part of India or] of Her Majesty’s dominions is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of [***] the [Central Government ] [in or for] [such country] to be the manner commonly in use in [that country] for the certification of copies of judicial records.

 [An Officer who, with respect to [***] any territory or place not forming part of [India or Her Majesty’s dominions, is a Political Agent therefor, as defined in section 3, [clause (43), of the General Clause Act, 1897, shall, for the purposes of this section, be deemed to be a representative of the [Central Government] [ in and for the country] comprising that territory of place.

13. Presumption as to books, maps and charts

S. 87. Presumption as to books, maps and charts

The Courts may presume that any book to which it may refer for information on matters of public or general interest, and that any published map or chart, the statements of which are relevant facts and which is produced for its inspection, was written and published by the person and at the time and place, by whom or at which it purports to have been written or published.

14. Presumption as to books, maps and charts

S. 88. Presumption as to books, maps and charts

The Court may presume that a message, forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the Court shall not make any presumption as to the person by whom such message was delivered for transmission.

15. Presumption as to electronic messages

S. 88A. Presumption as to electronic messages

The Court may presume that an electronic message forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.

Explanation.- For the purposes of this section, the expressions "addressee" and "originator" shall have the same meanings respectively assigned to them in clause (b) and (za) of sub-section (1) of section 2 of the Information Technology Act, 2000.]

16. Presumption as to due execution, etc., of documents not produced

89. Presumption as to due execution, etc., of documents not produced

The Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law.

17. Presumption as to documents thirty years old

90. Presumption as to documents thirty years old

Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

 Explanation – Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin, probable.

This explanation applies also to section 81.

Illustrations

 (a) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his titles to it. The custody is proper.

 (b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession.

 (c) A, a connection of B, produces deeds relating to lands in B’s possession, which were deposited with him by B for safe custody. The custody is proper.

18. Presumption as to electronic records five year old

S. 90A. Presumption as to electronic records five year old

Where any electronic record, purporting or proved to be five years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the digital signature which purports to be the digital signature of any particular was so affixed by him or any person authorized by him in this behalf.

 Explanation.- Electronic records are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probable.

This Explanation applies also to section 81A.]

09. CONCLUSION

The law relating to documentary evidence is very complex in nature and it is supplemented by numerous Supreme Court and high Court Judgments. Each type of documentary evidence is recognized and their legal implications are dealt with in the corpus of Evidence Act. A Study in this regard only suggests that the conflicting or rather confusing versions of interpretations need by taken by the Apex Court and adequate judicial law making should be made in this legal branch of law of evidence, as far as documents are concerned.

BIBLIOGRAPHY

1. Justice Y V Chandrachud and V R Manohar, Ratanlal and Dhirajlal’s The Law of Evidence (Act I of 1872), Wadhwa & Company, Nagpur, 21^st Edition, Reprint 2008

2. https://indiankanoon.org

3. http://judis.nic.in/supremecourt/chejudis.asp

4. http://judis.nic.in/judis_kerala/content.asp

5. https://en.wikipedia.org/wiki/Main_Page

NOTES

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[i] Article 6 of the European Convention for the prosecution of Human Rights and Fundamental Freedoms, 1950 so far as material, provides: '1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

[ii] The court distinguished R. v. Central Criminal Court, ex p Behbehani, (1994) Crim LR 352

[iii] A copy of Municipal record not issued in accordance with the requirements of the Municipal Act is not relevant. Ganesh Pd. v. Badri Pd., AIR 1980 Al1361. Certified copy of a registered deed is provable, but not a copy which was prepared while the deed was presented for registration. Kalyan Singh v. Chhoti, AIR 1990 SC 396; 1990 ALR 155: 1990(1) SCC 266; Land Acquisition Officer v. N. Yenkata Rao, AIR 1991 AP 31, copies issued by sub- registrar, secondary evidence.

[iv] K. Shivalingaian v. B. V. Chandrashekara Gowda. AIR 1993 Kant 29; Bidhan Paul v. Paresh Chandra Ghose, AIR 2002 Gau 46, a power of attorney registered with the sub-Registrar has been held to be not a public document. A certified copy of such record is a secondary evidence.

[v] J. Patel & Co. v. National Federation of Industrial Co-op. Ltd., AIR 1996 Cui 253; Ramesh Verma v, Sajesh Saxena, AIR 1998 MP 46, on admissibility of photocopies. Rajasthan Golden Transport Co. v. Amritlal, AIR 1998 Raj 153, photocopy of an assessment order produced, neither any opportunity was given to the witness to prove the original, nor there was anything to show that the photocopy was made from the original, the order permitting photocopy to be produced was held to be not proper.

[vi] Mahadeva Royal v. Yirabasava Royal. (1948) 50 Bom LR 638 PC; Badrunnisa Begum v. Mohamoodu Begum. AIR 2001 AP 394, a copy of a copy of a document not compared with the original document was held to be not admissible in evidence. A decree based on such a copy of a copy was held liable to bet aside.

[vii] Lachcho v. Dwari Mal. AIR 1986 All 303. See also Balbir Singh v. Stale of Haryana, AIR 1987 SC 1053: 1987 Cr LJ 853 : (1987) I SCC 533 : 1987 SCC (Cri) 193, where a police report was prepared on the basis of rough notes which were not produced, no importance given to the report.

[viii] Idandas v. Ananl Ram Chandra, AIR 1982 SC 127: 1982(1) SCC 27: (1982) I SCR 1197; Minati Sen v. Kalipada Ganguly AIR 1997 Cal 386, counter-foil of a rent payment receipt did not show any sub-tenancy, even otherwise there was no proof of sub-tenancy.

[ix] Swaran Singh v. Narinder Kaur, AIR 2002 P&H 40. A similar approach was adopted in Bihari Lal v. Ram Piari, (1999) 2 Punj LJ 213 and Sinnu v. Pali, (1992) 1 Punj LR 378; 1992 Punj LR 74; MukhtiarSinghv. Baint Singh; (1991) 1 Punj LR 15; 1991 Punj LJ 143, a photo copy of the original will permitted as secondary evidence. The same view was taken in Raj Kumari v. Shri Lal Chand. (1994) 1 Punj LR 190. The decision in Roman Catholic Mission v. State of Madras AIR 1966 SC 1457; (1966) 3 SCR 283 was held to be not applicable at this stage

[x] WIGMORE ON EVIDENCE, para790 (3^rd ed. 1940, Vol.3)

[xi] HOLT Ch. of Q.S. in Travers. (1958) SR (NSW) 87 at p. 96; reported in EDWARDS, CASES ON EVIDENCE IN AUSTRALIA. p 317 (1968). Also see Harry Parker Ltd. v. Mason. (1940)5 KB 590; R. v. Mills and Rose. (1952) 1 WLR 1152; 42 Cr. App. R. 336 and R. v. Maqsood Ali; (1966) 1 QB 686, in both these cases tape-recorded statements were received in evidence.

[xii] Best, 12th Edn, s. 223, p. 209; Balbahadar Prasad v. The Maharajah of Betia, (1887) 9 All 351,356; K. Anjaneya Setty v. K.H. Rangiah Setty, AIR 2002 Kant 387, where a document is not admissible for one reason or another, the court can decide at the final hearing as to whether it can be looked at for collateral purposes.

[xiii] Where there is documentary evidence, oral evidence is not entitled to any weight, Murarka Properties P. Ltd. v. Beharilal Murarka, AIR 1978 SC 300: 1978(1) SCC 109

[xiv] Butu Naik v. Saraswati Devi, AIR 1998 Ori 119. Sunil Kumar v. Anguri Choudhari, AIR 2003 NOC 105 (MP) : 2002 AIHC 3869, the document was neither photocopy, nor true copy of the original. nor compared with the original, not a secondary evidence as defined in s. 63.

[xv] Abdul Rasack v. Ma U, (1898) 2 UBR (1897-1901) 382. Secondary evidence was not allowed where the primary was on record. Kirpal Singh v. Kartaro, AIR 1980 Raj 213. Oriental Fire & General Ins. Co. v. Chandrawali, AIR 1989 P&H 300. a copy of the original policy produced without making out any exception, held liable to be rejected. Hari Singh v. Shish Ram, AIR 2003 P&H 150, a photostatic copy of the original deed of family settlement was filed. The court said that it was sine qua non for party to show that the original was in existence and could not be produced and that photo evidence was allowable under one or the other exceptions.

[xvi] Stokes' Anglo-Indian Codes, Vol. II, p. 892 f.n. 2.

[xvii] Gurdiai Kaur v. Registrar Co-operative Societies, AIR 2000 P&H 82. The court relied upon Ved Prakash v. Kartar Kaur, (1994) I QRR 361 wherein it was held that in order to enable a party to produce secondary evidence it is necessary for the party to prove the existence and execution of the original document; Krishna Kumar v. Pal Singh, (1989) 95 Pun LR 55 , it was incumbent refer the respondent to lead evidence to prove existence of the original civil; Gurditta v. Balkar Singh. (1989) 95 Pun LR 418, where the agreement to sell was never pleaded in the written statement, an application to lead secondary evidence by way of photostat copy was filed after more than two years. there was no occasion for the trial court to allow the defendant to lead secondary evidence particularly when the existence of the original document was not proved. Sobha Rani v. Ravi Kumar, AIR 1999 P&H 21, permission for secondary evidence was sought on the ground of loss of the document, the existence of the original was proved from the fact stated in the plaint and reply of the defendant. Order was granted for filing secondary evidence.

[xviii] Ranjit Kumar v. Kamal Kumar, AIR 1982 Cal 493. See also Shiola Singh v. Shankar, AIR 1984 Bom 19, where execution could not be proved.

[xix] Stokes' Anglo-Indian Codes, Vol, II, p. 892 f.n. 30. L S. Sadapopan v. K.S. Sabarinathan, AIR 2002 Mad 278, in an agreement to sell immovable property, the original deed was with the vendor whereas only a copy was given to the plaintiff vendee and that was also lost. Only a photo-copy was produced in the suit for specific performance. The court admitted it as secondary evidence. The court said that clauses (a) and (c) of s. 65 are independent of clause (I) and even an ordinary copy, not necessarily certified copy would be admissible. The court cited the following cases as making del ailed interpretation of ss. 63 and 65 : Marwari Kumhar v. Bhagwanpuri Guru Ganeshpuri, AIR 2000 SC 2629: (2000) 6 SCC 735; Ratan Sharma v. Ambesedar Drycleaners, AIR 1997 Raj 75; Harijiwan Sahu v. Jairam Sahu, AIR 1989 Pat 96; Sabarna Barik v. State, AIR 1970 Ori 236; Arunkumar v. Ramanlal, AIR 1975 Guj 73 and Santanan Mohanty v. Baldhar Rout. AIR 1986 Ori 66; Gopal Krishna Jeevan Kumar v. Puran Singh. AIR 1998 P&H 144, best evidence was in possession of the opposite party who had not produced it, secondary evidence was allowed.

[xx] Field, 8th Edn., p. 436.

[xxi] Muniammal v. Govindarajan (1958) Mad 415. Hindustan Engineering Co. v. Bhagwanlal Agarwal, AIR 2003 Raj 198, a civil suit was filed by the Electricity Board against its consumer. The latter sought permission to produce a photostate copy of the application filed by him before the Electricity Board. The Board denied the existence of any such application. It made no enquiry before expressing its denial. This was held to be not proper.

[xxii] Stokes' Anglo-Indian Codes, Vol. II, p. 892, f.n. 4

[xxiii] Muhammad Zafar v. Zahur Husain, (1926) 49 All 78; Womesh Chunder Ghose v. Shama Sundari Bai, (1881) 7 Cal 98; Mt. Hana v. Lokumal, (1943) Kar 420; Harshvardhan Singh v. Ranveer Singh. AIR 1997 Raj 211, an unstamped and unregistered document, containing family settlement, created rights in immovable property, the original was not produced before the court, nor its absence accounted for, order allowing a copy of the settlement to be filed was held to be illegal.

[xxiv] Amrita Devi v. Sripat Rai, AIR 1962 All 111; Chandan v. Longabai, AIR 1998 MP 1, the document containing a will was shown to be eaten by rats, secondary evidence allowed.

[xxv] Jagdishchandra Chandulal Shah v. State of Gujarat, 1989Cr LJ 1724 (Guj), a copy of the plaint certified by the court where it is filed was also held to be a public document for purposes of evidence. M Madasamy Thevar v. AM Arjuna Raja, AIR 2000Mad 465, certified copies obtained from the office of the Registrar of Documents are secondary evidence and admissible as such.

[xxvi] In the Matter of a Collision between the "Ava" and the "Brenhilda", (1879) 5 Cal 568. 573, approved by the Supreme Court in Bibi Aisha v. Bihar S.S.M. Waqaf, AIR 1969SC253 : I969 (I) SCR417. A copy of the Municipal record not issued in accordance with the requirements of the Municipal Act is not relevant. Ganesh Pd. v. Badri Pd. AIR 1970 All 361.

[xxvii] Ins. by the Information Technology Act (Act 21 of 2000). s. 92 and Second Sch. w.e.f. 17-10-2000

[xxviii] Ins. by the Information Technology Act (Act 21 of 2000). s. 92 and Second Sch. w.e.f. 17-10-2000

[xxix] Surendra Krishna Roy v. Mirza Mahammad Syed Ali Matwali, (1935) 63 IA 85 : 38 Bom LR 330. See also Oriental Fire & General Ins. Co. v. Chandrawali, AIR 1989 P&H 100, the insurer saying that the original policy was in possession of the other party but not requiring him to produce, held disentitled from producing the secondary evidence.

[xxx] Stokes' Anglo-Indian Codes, Vol. II, p. 893, f.n. 6

[xxxi] Stokes' Anglo-Indian Codes, Vol. II, p. 893, f.n. 7

[xxxii] Bulakidas v. Shaikh Chhotu, (1942) Nag 661; Bhanwaria v. Ramratan, (1953) 4 Raj 145; Ramkrishna Girischandra Dode v. Anand Govind Kelkar, AIR 1999 Bom 89, executants of rent receipt/receipts were not examined by the party about whom the court felt had launched obstructionist proceedings. An opportunity of examining the signatory was given to the party Refusal to admit the receipts in evidence was held to be proper.

[xxxiii] In the matter of Mr. D. & Mr. S., (1961) 68 Bom LR 228; but see contra the view expressed by VIMADALAL J., in Bhima Tima v. Pioneer Chemicals, (1967) 70 Bom LR 683. Madholal v. Asian Assu. Co. Ltd., (1945) 56 Bom LR 147

[xxxiv] Ramjan Khan v. Baba Raghunath Das, AIR 1992 MP 22; Ram Singh v. Col. Ram Singh, AIR 1986 SC 3, a document the contents of which were not proved nor the maker of the document examined was held to be irrelevant.

[xxxv] Salimatul-Fatima Alias Bibi Hossaini v. Koylashpoti Narain Singh, (1890) 17 Ca1903; Bulakidas v. Shaikh Chhotu, (1942) Nag 661. K.K. Thankaappan v. K.S. Jayan, AIR 2003 Ker 114, only a certified copy of the registered document of dissolution of marriage was available on record. There was no other evidence of due execution of the deed. Signature and handwriting on the deed were not proved to be that of the husband and wife. The court said that the fact of dissolution of marriage was not proved.

[xxxvi] Abdulla Paru v. Gannibai, (1887) II Bom 690; Babban v. Shiv Nath. AIR 1986 All 185, attesting witnesses duly produced. Pankhothang Haokip v. Dozakhup Paite, AIR 2003 Gau 44, sale deed execution by the seller proved by the buyer, the seller made no plea of cancellation that of denial of his signature. He was bound by the document.

[xxxvii] Ins. by the Information Technology Act (Act 21 of 2000) s. 92 and Second Sch. w.e.f. 17-10-2000

[xxxviii] Wigmore, s. 1304.

[xxxix] Bishnu Ram Krishan v. Nathu Vithal, (1948) 51 Bom LR 245. Ram Rattan v. Bitton Kaur, AIR 1980 All 395, where the attesting witness though alive was not produced. State of Ha ryana v. Raj Kaur, AIR 200 I P&H 322, the original will was not produced, only one attesting witness produced who stated that he was not aware whether the testator had executed any will or he had thumb marked any will. The testator had excluded his daughters from succession and preferred his nephews. The propounder of will did not produce any evidence to show that the testator was free from extraneous influence and used or was capable of using his free mind. The sub-Registrar who registered the will was not produced. The court said that the will was not proved to the satisfaction of the court so as to exclude natural heirs. N. Kamalam v. Ayyaswamy, AIR 2001 SC 2802, signature of the subscriber cannot be equated with that of an attesting witness. Attestation is a legal requirement.

[xl] Bhagya Wati Jain v. General Public, AIR 1995 P&H 201, the court surveyed a large number of cases at pages 204-209

[xli] K.M. Varghese v. K.M. Oommen, AIR 1994 Ker 85; Madhukar D. Shende v. Tarabal Aka Shedage, AIR 2002 SC 637, the validity of a will could not be questioned on the basis of suspicion and conjectures with no foundation in evidence and having no relevance to the facts of the case. There was no challenge by any relative of the testatrix. The court set aside the finding.

[xlii] Baburajan v. Parukutty, AIR 1999 Ker 274, signature and attestation were put at the end of the document after the schedule of property. The failure of the testator to sign one of the pages was held as not making any difference. S. Kaliyammal v. K. Paliammal, AIR 1999 Mad 40, execution of the will was not denied, but the allegation was that the execution was under fraud and under influence. No evidence was produced in support of the allegation. The court said that an inference of the validity of the will was warranted. Janardan Badrinarayan Patel v. Sheth Ambalal Himatlal, AIR 1999 Guj 162, the propounders did not produce the draft of the will and there was no evidence to show the happenings prior to the finalization of the will.

[xliii] Dhruba Sahu v. Nalumoni Sahu, AIR 1983 Ori 24, the Court adding that it is not necessary for the attesting witness to add that he signed in the presence of the executant.

[xliv] Lakshman v. Krishnaji, (1927) 29 Bom LR 1425; Thakkar Vrajlal Bhimjee v. Thakkar Jamnadass Valjee, (1994) 4 SCC 723, no attesting witness to a mortgage deed was produced. Its execution was not deemed to have been proved. The admission by the guarantor of his signature upon the mortgage deed was not a substitute for proof by attesting witnesses. The court followed Kunwar Surendra Bahadur Singh v. Thakur Behari Singh, AIR 1939 PC 117

[xlv] The following cases are affected by this proviso; Veerappa Kavundan v. Ramasami Kavundan, (1907) 30 Mad 251; Sat ish Chandra Mitra v. Iogendranath Mahalanabis, (1916) 44 Cal345; Rosammal Issethenammal Fernandez v. Joosa Marlyan Fernandez, AIR 2000 SC 2857 : (2000) 7 SCC 189, denial must not be vague, pleadings of the parties must also be considered while recording a finding as to denial.

[xlvi] Janki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761. when one attesting witness is produced, the examination of the other attesting witness can be dispensed with.

[xlvii] Asia Bi v. S.A. Abdul Gaffor, 1996 AIHC 1332 (Mad); Mohanlal Dungarmal Furmani v. Vishanji Dungarmal Furmani, AIR 2001 Cal 122, construction of an unprobated will has to be according to the agreement as it is and not by adding to or varying its terms.

[xlviii] Rajinder Singh v. Hari Singh, AIR 2000 P&H 257. Mathew Jacob v. Salestine Jacob, AIR 1998 Delhi 320, examination of only one witness is sufficient.

[xlix] Dhyam Chandv. Savitri Devi, AIR 1998 HP 37. Chandan Longa Bai, AIR 1998 MP I, attesting witness denied attestation by him. Other evidence became permissible. The scribe testified to scribing the will and attestation by two witnesses. The document was also registered. The statement of scribe comes under s. 71. A subsequent will referred to the earlier will. The execution of the will was taken to be proved. Madhab Bohoru v. Braja Kishore Nanda, AIR 2003 Ori 107, at testing witnesses became hostile, the scribe was also avoiding but he was arrested and produced, he admitted he did the scribing service and attested the thumb impression of the executant. Evidence accepted that the will was duly attested in accordance with the law. One of the copies carried a certificate from the party's advocate which was not there on the original. Since there was no legal requirement of such endorsement, its absence on the original was immaterial. Pt. A.N. Misra v. Pt. Ram Chandra Sharma, AlR 2003 All 96, of the two wills, the second was found to be genuine and natural.

[l] Mussummat Shahzamdi Begum v. Sud Muhammad Qasim (1928) 7 Pat 312. In this case the effect of the proviso to s. 68 was not brought to the notice of the Court.

[li] Davood Rowther v. Ramanathan Chettiar, (1938) Mad 523, 532. Interpolation of words in a receipt for payment of rent does not make it inadmissible. Kuri Lal Rungta v. Banarsi Devi, AIR 1986 All 94.

[lii] See Lakshman v. Krishnaji. (1927) 29 Bom LR 1425. See also Brundaban Nayak v. Gobardhan Biswal, AIR 1990 Ori 232. where the attesting witness denied that he attested the gift deed and other evidence was allowed

[liii] Chaitan Charan Parida v. Maheshwar Parida, AIR 1991 Ori 125. Maria Sheilla v. T. Joseph Catherine. AIR 2003 Mad 270. the propounder was allowed to prove execution of the will where either the attesting witness was not available or was unable to recollect facts. The will was proved by showing that the testafrix had admitted her signature in the presence of the witness who had deposed to that fact and also that she was in sound disposing state of mind.

[liv] Janki Narayan Bhoire v. Narayan Namdeo Kadam; AIR 2003 SC 761, evidence of other witnesses, for example, the person (respondent) who claimed the suit property and that of the scribe could have been considered if the requirement of s. 68 had been satisfied

[lv] Abdul Subhan Khan alias Khalilur-Rahman v. Nusrat Ali Khan. (1936) 12 Luck 606; Pakala Narayana Swamy v. King-Emperor. (1937) 17 Pat 15. See Tilakdhari v. Jagat Rai, AIR 1962 Pat 76; Mathew Jacob v. 'Salestine Jacob, AIR 1998 Delhi 390, the court is empowered to draw the comparison with an admitted signature.

[lvi] Laxmi Bai v. A. Chandravati, AIR 1995 Ori 131. Ajit Savant Majagavi v. State of Kurnutaka, AIR 1997 SC 1255 : 1997 Cri LJ3964 (SC), on the permissibility of this method of comparison. See generally, Mukhtiar Singh v. State. 1997 Cri U4544 (P&H).

[lvii] State of Maharashtra v. Sukhdev Singh, (1992) 3 SCC 700, 730: 1992 SCC (Cri) 705: AIR 1992 SC 2100. A NeeIalohithadasan Nadar v. George Mascrene, (1994) Supp 2 SCC 619, the court did the comparison itself in a case of double voting, the Supreme Court said that it was necessary for the expeditious disposal of an election petition, but issued the advice that the court should be slow in adopting this procedure, Tarak Nath Sha v. Bhutoria Bros, AIR 1988 Cal 31, the court should be slow to undertake the task of comparison itself. It should take the aid of an expert Bouma Naicken v. Chinna Gounde, AIR 1998 Mad 375, thumb impression, the judge himself compared the disputed impression with the admitted impression and gave his finding. This was held to be not proper.

[lviii] . K.S. Saryanaryana v. V.R. Narayana Rao, AIR 1999 SC 2544 : (1999) 6 SCC 104, this was a suit for recovery of amount from two defendants paid earlier as a sale consideration for property. The plaintiffs plea was that the defendant No. 1 authorized the defendant No.2 for the purpose. But the defendant No. 1 denied his signature on any such paper as well as on vakalatnama and written statement. Dismissal of the suit on this ground was held to be illegal. Nallabothu Purnaiah v. Garre Malikarjuna Rao, AIR 2003 AP 201, the evidence of the handwriting expert was rejected by the court by reason of the fact that expert had no qualification, held, not proper because identification of handwriting being not a developed science. There was no formal qualification to be possessed. Direct and circumstantial evidence lent support to the expert opinion. Rejection of his opinion by the court was held to be not proper.

[lix] Emperor v. Ganpat Balkrishna, (1912) 14 Bom LR 310. See Mangubhai Mansukhram v. Pranjivan, AIR 1992 Guj 1, a promissory note which was proved to be in the handwriting of the dependant made him liable.

[lx] Emperor v. Ganpat Balkrishna, (1912) 14 Bom LR 310; Bhagirati Sahu v. Akapati Bhaskar Patra; AIR 2001 Ori 185, a suit for specific performance was based on an agreement of sale of the property in question, the defendant pleaded that the document was fabricated and that his signature was forged and, therefore, he asked for examination by a handwriting expert. The order rejecting the application was held liable to be set aside.

[lxi] T. Subbiah v. Ramaswamy, AIR 1970 Mad 85; Sanjay Goel v. State of V.P., 2002 Cri LJ625 (All), the court could compel the accused under s. 164, Cr PC to give his specimen handwriting to the investigating officer to enable him to get it compared with the note found at the scene of crime in which the accused confessed to his crime. Another Allahabad decision. Guru Pal Singh v. State of U.P. 2002 Cri LJ 1517 (All), is to the contrary effect. The court said that it could not compel the accused to give his specimen writing to the police for comparison with disputed writings when the case was at the stage of investigation.

[lxii] Slate of U.P. v. Ram Babu Misra. AIR 1980 SC 791: 1980(2) SCC 343. Followed in Harekrishna Patnaik v. State of Orissa, 1991 Cr LJ 462 (Ori), the court adding that if the specimen was taken by the investigating officer in the course of investigation, even if with some irregularities, the same can still be used.

[lxiii] Murarilal v. State of M.P. AIR 1980 SC 531 at 537: 1980 Cr LJ 396 citing Shashi Kumar v. Subodh Kumar AIR 1964 SC 529 and Fakhruddin v. State of M.P. AIR 1967 SC 1326: 1967 Cr LJ 1197. Where the Court itself had done the comparison

[lxiv] Inserted by the Information Technology Act (Act 21 of 2000). S. 92 and Second Schedule w.e.f. 17-10-2000

[lxv] BEST. 12th Edn. 55. 484. 485. pp. 407-409. Abanti Jena v. Priyabada Jena. AIR 2000 Ori 156, whenever a document of this kind (electoral roll in this case) in produced, opportunity should be given to the opposite party to lead rebuttal evidence.

[lxvi] Thrasyvoulos Ioannou v. Papa Christoford L. Demetriou, (1952) AC 84. A spot inspection report by a Tahsildar has been held to be not a public document. Radhey v. Board of Revenue, AIR 1990 All 175

[lxvii] Hardayal v. Aram Singh, AIR 2001 MP 203. New India Assurance Co. Ltd. v. Krishma Sharma AIR 1998 Delhi 386, an insurance policy is not a public document.

[lxviii] The court referred to the following authorities, Narattam Das v. Md Masadharali Haribhuiyan, (1991) I Gau LR 197 (DB) overruling the decision in Md. Saimuddin Sheikh v. Abejuddin Sheikh, AIR 1979 Gau 14; Manindra Kumar Dey v. Mahendra Sukla Baidya, (1999) 2 Gau LR 219: AIR 1999 HC 2147. State of Haryana v. Ram Singh. AIR 2001 SC 2532, certified copy of a registered sale deed of immovable property admitted in evidence for proving comparative land value without examining the parties to the document.

[lxix] Thatha v. Peru. AIR 1986 Ker 196. Democratic Bar A.ssociation, Allahabad v. High Court. Allahabad AIR 2000 All 300, recommendation of screening committee, which was not a public document

[lxx] Jagdishchandra v. State of Gujarat, 1989 Cr LJ 1724 Guj, proof of registered sale deed and plaint filed in court by certified copies.