Indian Evidence Act- Documentary Evidence (Section 61-73)

Documentary Evidence

Introduction

 

Document is defined in section 3, which states that it is any matter expressed or described upon any substance by means of letter, figures or marks or any combination of these.

And intention of such expression or description by letter figure or mark is to record the matter.

In “Evidence” definition in section 3, there is clause 2 which say “evidence” include all documents including electronic records.

Section 61-Proof of contents of documents

 

This section talks about proof of content of document.  This section is very easy to understand. In your resume you have mentioned that your are “First Class LLB Graduate”. This is the content of your document. How you are going to prove this?

·        By showing original mark sheet, or

·        By showing photocopy of mark sheet

That’s it! This section states that content of document can be proved by primary evidence, which in this case would be original mark sheet or content can be proved by secondary evidence, in this case it will be photocopy of your mark sheet.

So you have only two option to prove content of document, by primary or secondary evidence.  There is related legal maxim “generalia specialibus non derogant”, which mean where there is a specific provision covering admissibility of document, it is not open to court to call into aid other provision.

What is primary evidence? What is Secondary evidence?

Section 62-Primary Evidence

 

It provides the definition for primary evidence.

It states “document itself produced for inspection of the court”. When original document is produced it is called as primary evidence.

Imagine you are owner of house and you want to let out for rent. While letting out, you and your tenant both want original copy of rent agreement. So you take 2 printouts from computer, signs on both of them, seal them whatever. So each of this is execution of document and each of these documents would be called primary evidence. This is explained in first explanation.

A and B lives in different cities, say Mumbai and Karachi. Both want to enter into contract of sale of pistas. A prepare one document, B prepare one document. Both of them then send their document to their counterpart. Each of these documents would be primary evidence under section 62.

There is another explanation which states that when multiple documents are made by one uniform process then each of these documents would be primary evidence. For example, Doctor do a sonography or MRI scan of patient. He then takes out multiple prints, one for insurance company, one for patient and one for himself. He signs on each it, then each of the document will be primary document.

In a nut shell all in all there are 4 types of documents included in primary evidence

1.   Original document itself

2.   If Document is executed in multiple parts, each of these parts

3.   Document prepared by counterpart, each counter part is primary evidence

4.   Number of documents made by uniform process

Section 63-Secondary Evidence

 

Secondary evidence includes below things

1.   Certified copies- you know what it is.

2.   Copies made by mechanical process. For example photocopy of rent agreement, or your mark sheet.

3.   Copies made from original : In Umarul Islam Vs A.K Kanta, news reports, advertisement and messages wont be admissible unless original manuscript is reproduced. Here news report is prepared from some original manuscript. In this case news report would be your secondary evidence as it is made from original.

4.   Counterparts against the parties who did not execute them. Example of this could be patta and qabuliat. When you lease out land, you execute patta, whereas tenant execute qabuliat. Then both of them exchange these documents. In this case qabuliat would be secondary evidence against tenant and patta would be against landlords.

5.   Oral statements : When you read some document and give oral account of it would be secondary evidence. For example you say “I saw mark sheet of X, and he is failed in Evidence exam”!

All of the above are secondary evidence.

In one of the case, court held that you can prove by photocopy when you prove that original is in possession of opposite party.

Section 64- Proof of document by primary evidence

 

It talks of document to be proved by original document.  This section lays down the best evidence rule. 

This is general rule of proving a document as evidence act provides in which cases document can be proved by secondary evidence.

 

Section 65- Cases in which secondary evidence relating to the document may be given

 

This is exception to rule provided in section 64. It lays down cases in which documents can be proved by secondary evidences. It provides total 7 cases under which secondary evidence can be admitted.

1)   When the original is shown or appears to be in possession of

·        With the person against whom it is going to be proved

·        With the person who is out of reach. Vijay Mallya for example!

·        With the person who is legally bound to produce it. Mean court already ordered a person to produce it but that person is lazy. J

 

2)   If the content of document is already admitted by opposite party

3)   When original is lost or destroyed

4)   When original is not easily movable.

5)   Original is public document. In this case you need certified copies

6)   When certified copies of any document is permitted under law, then also you can produce secondary evidence

7)   When original consists of numerous accounts and court cannot examine document conveniently.

These are cases when document can be proved by secondary evidence.

Difference between primary evidence and secondary evidence

 

Primary Evidence	Secondary Evidence
Original document	Which is not original
It is the best evidence	It’s not best evidence, but admitted in exceptional cases like section 65
General Rule	Exception to general Rule
No notice is required before giving primary evidence	Notice is required

 

Section 65A-Proof of electronic records

 

It states that electronic records to be proved with provision from section 65B

Section 65B-Admissibility of electronic records

 

When electronic records are proved, then how would court come to know that record is correct. In this court would required additional details. For example if account details are submitted, then bank would need to issue certificate that those details are correct.

Section 66-Rules as to notice to produce

 

When document is in possession of adverse party or somebody else, first notice has to be given to him to produce the document. After notice only secondary evidence in that regard can be proved in court.

However in certain cases notice need not be given

·        When the document  produced is itself a notice

·        When the adverse party must know that he will be required to produce it.

·        When adverse party has obtained the possession by force or fraud

·        When the adverse party has the original in the court.

·        When the adverse party had admitted the loss

·        When is possession is out of reach

 

Section 67- Proof of signature and handwriting of person alleged to have signed or written document produced

 

For example, A have filed a suite against B stating that B owes A 10000 Rs. A also produce a document wherein B stated that “I will return the 10000 Rs before 30^th October”, with the sign B. To prove that document, first A have to prove that handwriting and signature on document is of B, otherwise court wont consider document as proved.

Mere filing a document won’t support your claim; you have to prove a sign and writing (if needed).

Before going into further details it is pertinent to note that from Section 61 to 66, act talks of proving the content of the documents, whereas from section 67 to 73 evidence act talks of genuineness of document.

Section 67 begins about genuineness stating that first you have to prove sign and handwriting on a document.

Various modes of proving a signature are as below

·        By calling a person who signed or wrote a document

·        By call a person under whose present document is signed

·        By calling a handwriting expert

·        By calling a person acquainted with the handwriting of

·        By comparison by court of disputed signature with admitted signature

·        Proof of admission of person whose signature is in question

·        By other circumstantial evidence

 

Section 67A- Proof as to digital signature

 

Section 68-Proof of execution of documents required by law to be attested

 

We will need to understand two things here before going into section. What is the meaning of execution? What is the meaning of execution?

Execution mean in simplest term signing the document. Law presumes that you have read the document, understand the document and after that you are signing the document.  For example when you do rent agreement, you have to sing on it. When both parties sign the document, document is said to be executed.

Attestation means two or more witness having seen you executing the document. Two people act as witness that you have actually sign the document. These two people called as attesting witness.

If you submit the rent agreement in court as proof, it’s execution must be proved. For that you need at least one attesting witness to support your claim.

However if document is registered under provision of Indian Registration act, then there would not be any need of attesting witness to be produced in a court.

In case of will, attesting witness is always needed.

Calling of witness is required only when law says that document needs attestation, for example sale deed, rent agreement, mortgage deed etc.

What if witness is not found he is dead or left the country?

Section 69- Proof when no witness found

 

When witness is dead, or cannot be found or living out of the jurisdiction of the court two things must be proved

·        Signature of attesting witness

·        Signature of executants

Section 70-Admission of execution by party to attested document

 

If party admit that attested document is execute, then no need to call on attesting witness etc. Admission shall be sufficient proof as against the person who admits it.

Section 71-Proof when attesting witness denies execution

 

Now when you call attesting witness to prove and he goes against you. How will you prove then?

Section 71 states then that execution should be proved by other evidences.

 

Section 72- Proof of document not required by law to be attested

 

Say some document like private contract was not required by law to be attested. But party in enthusiasm attest it. How should such document to be proved? Section 72 states that such document may be prove as if it was unattested.

Section 73- Comparison of signature, writing or seal with other admitted or proved.

 

Signature, writing or seal can be compared with other signature/writing/seal which is already admitted by party.

Court may direct any person present in the court to write words or figures for comparison.

This section also applies to thumb impression also.

Who all can do such comparison?

1.   Person who is acquainted with signature or writing

2.   Court itself can do such comparison

3.   Expert

Finally, do you remember Article 20(3) of the Constitution? It states that “no person accused of any offence shall be compelled to be a witness against himself”.

Can person be compelled to give signature for comparison? Yes, compelling to sign doesn’t infringe constitutional rights. It was decided in Kattu  Kalu Oghad Vs State Bombay, ALJ 936. Court stated that giving signature is not amount to be witness.