The Supreme Court of India, in M.Chandra vs. M. Thangamuthu [(2010) 9 SCC 712, para 30], while discussing the admissibility of Secondary Evidence held “…It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible…” In the context of above stated position this article seeks to analyse the admissibility and the procedure required to be followed for adducing secondary evidence within the matrix of Indian legal system in general and Indian Evidence Act in particular. Evidence as defined in the Indian Evidence Act 1872, includes oral and documentary evidence. The documentary evidence includes primary and secondary evidence. Primary evidence is the document itself and is the best evidence. But at times the document itself, i.e. the original document, is not available for a variety of reasons. In order to address such absence of the originaldocument, the concept of secondary has been introduced in the Act. This absence of the original document before the court prepares the logical context in which secondary evidence may be admitted as evidence to serve the interest of justice.
Put simply, according to section 63 Indian Evidence Act, 1872, secondary evidence is either a copy, oral account, counterpart of the original. The test for any document sought to be admitted as Secondary Evidence is that it needs to be proved that the copy is made from the original. And it must also be remembered that the list of documents specifically mentioned as secondary evidence under section 63 is held not to be exhaustive.
The Supreme Court, in Tukaram S. Dighole case [2010 (4) SCC 329], held: “…The general rule is that secondaryevidence is not admissible until the nonproduction of primary evidence is satisfactorily proved…” Therefore, the governing principle is that a party which seeks to give secondary evidence before being allowed to do so must prove to the court that he is unable to produce the original for no fault of his.
Section 65 of the Act describes the circumstances in which a particular kind of Secondary Evidence may be given in particular circumstances and the same are presented below:
Section 66 of the Evidence Act specifically deals with the issue as to the need to give notice to the adverse party to produce a document as the evidence because proving the contents of the document is of critical importance within the scheme of adducing secondaryevidence. The section distinguishes between three scenarios regarding the need to give notice to produce documents. The first scenario is when a previous notice under any law including provisions of CPC, is already given, then there is no need to give notice. The second scenario is when no notice is prescribed under any law then discretion is conferred on the court to require a reasonable notice to be given to the adverse party. And the third scenario is when the court exempts the party from the need to give notice to produce documents. When the document to be proved is itself a notice; when the nature of the case is such that it must be known by the adverse party that it will be required to produce it; when it appears or is proved that the adverse party has obtained the possession of the original by fraud or force; when the adverse party or his agent has the original in the court; when loss of the document has been admitted by adverse party or his agent and finally when the person in possession of the document is out of reach of or not subject to the process of the court.
The fundamental procedural rule for the presentation of documentary evidence is laid down in Order VII rule 14, CPC which makes it obligatory upon the plaintiff to produce documents upon which he sues or relies. Rule 2 of Order VII requires the plaintiff to state in whose power and possession a particular document is relied upon by him.
In Malay Kumar Ganguly vs. Dr.Sukumar Mukherjee, It was held that the contents of the document cannot be held to have been proved unless author thereof is examined and subjected to cross- examination in a court of law.
The most important procedural aspect of secondary evidence is that once a document is admitted without objection at the trial then its admissibility cannot be challenged at the appellate stage. So it must be borne in mind that whenever a party seeks to introduce secondary evidence the opposite party must object to its admission promptly by way of any defence available to it otherwise an opportunity lost at that stage may prove fatal later on. As was held in P.C Pushottamdas vs. S. Perumal (AIR 1972 SC 608) ‘the omission to object, at trial stage as to the admissibility of the document, is fatal because once a document is properly admitted, the contents of that document are also admitted in evidence, though those contents may not be conclusive evidence’
The issue relating to secondary evidence as provided in clause (a) of section 65 of the Evidence Act has been discussed repeatedly in various judgments of the apex court and high court. The criteria to be adopted by the Judge before allowing the introduction of secondary evidence depend upon the facts of the each case. It is basically the satisfaction of the Court that original of the documents for which the secondary evidence is being led has either been lost, destroyed and or not traceable. There is no hard and fast rule written in any law regarding the satisfaction of the Judge. However, the courts have held that the court has to be sure before allowing the secondary evidence and liberal approach cannot be adopted merely on the ground that original documents have been lost or destroyed. But when we come into the practical part of the trial of the suit, the Court can only be satisfied at the stage of leading evidence by either filing an Affidavit to be corroborated with some document, i.e. lodging of a police compliant, issuing of a public notice etc. Generally even with mere affidavit of the party, the courts are permitting leading of secondary evidence. Since there is no other method or machinery by which the Court can be convinced at the stage of leading the evidence, this is the only method which is being adopted by the Courts before permitting a party to lead secondary evidence unless it is rebutted by the opposite side with some kind of a documentary evidence.
As regards the provisions of section 66 of the Evidence Act, the requirement of law is that the Plaintiff or the Defendant before leading secondary evidence has to serve a notice requiring the otherside to produce originals which are in power and possession of the opposite side and the opposite side, if fails to produce the originals and does not place any Affidavit to oppose the leading of secondary evidence, in normal circumstances, if the court is satisfied with the originals ought to be in possession of the opposite side, the Court generally permits leading of secondary evidence. The approach of the court in permitting leading of the secondary evidence again depends upon the facts of the each case. For example, if it is simple case of supply of goods and the invoices having been raised by the supplier, it prima facie leads to a conclusion that originals of all the invoices ought to be in possession of the other side. Therefore, a simple notice asking for production of the originals is enough to lead the secondary evidence. However, in case, the opposite side denies the receipt of the original invoices, in such a case the party before leading the secondary evidence has to further satisfy the court by corroborating evidence of supply, payments etc. apart from filing his own affidavit. However, there are certain cases where the documents belonging to the party having been misplaced, lost or destroyed, the party wishes to lead secondary evidence has to actually prove the fact of the documents having been destroyed, lost or misplaced like lodging of the police complaint and or issuing of a public notice. The opposite side can only stop the party to lead secondary evidence by establishing the fact of non supply and non receipt of invoices. However, still if the Court permits leading of a secondary evidence, there is no remedy at the stage of recording evidence, the issue can only be argued at the time of final arguments that the evidence so led is not a secondary evidence and cannot be considered and documents not proved in accordance with law cannot be read in the evidence.
The Supreme Court has laid down the law that secondary evidence must be authenticated by a fundamental evidence. It is submitted that the same can be explained or proved by corroborative evidence like in the case of delivery of the goods supplied, challans, taxes and the part payment etc. As regards the other documents on which the secondary evidence is required to be led it can be proved from the statement of the witnesses indicating the preparation of document in their presence or they being a party to the preparation of the documents.
On Certified Copies of Registered Sale Deeds
The registered sale deed is not a public document which can be just tendered in evidence. Certified copy cannot be adduced as secondary evidence. The execution of sale deed is required to be proved either by the statement of the executant or the witnesses of the sale deed. The certified copy can be adduced as secondary evidence if it is proved before the Court that original is not traceable or available and even with the registering authorities the records are not available. However, the basic principles of the Evidence Act required to prove documents still have to be followed even in proving the certified copy.
There are two circumstances under which a person comes in possession of a document, one a document is handed over to him under some circumstances other a document should be naturally in his possession. Say A writes a letter to B and sends it to him by registered post, B should naturally be in possession of it, if B refuses or fails to produce the same, the court can consider that original letter appears to be in possession of B. Similarly one can plead and prove that a document was handed over to other person who was not producing it in the court, the court on being satisfied that document was handed over to him and was in his possession can allow production of secondary evidence.
The pre-condition for allowing the secondary evidence by the trial court is the satisfaction of the trial court that the person was in possession or control of document and was deliberately not producing it. This satisfaction is to be recorded by the court by a speaking order. A party not satisfied with the order has the remedy of assailing the order before higher forum.
With advanced technology it has become very easy to manufacture and forge documents. With the help of computer and scanner the original text of any document can be changed and a copy produced in the court with a plea that original is lost or destroyed. The court must, therefore, insist how copy came into existence without original and must ensure that the secondary evidence sought to be produced was a genuine copy.
Section 74(2) of Evidence Act makes it clear that public record of private documents is a public document. A certified copy obtained from state department keeping record can be adduced as Secondary Evidence.
Three types of copies are mentioned inclauses 1-3 of section 63. The first type of copies are certified copies and their correctness is presumed under section 79 of the Act but a certified copy is not proof of the execution of the document admitted in evidence. The two other types of copies are those copies made from original through mechanical process and copies compared with such copies; and copies made from or compared with the original.
The certified copies which are held to admissible in evidence are as follows: Certified copy of registered will (AIR 1970 P&H 182 (186)); certified copies of lenders licenses (AIR 1993 Kant. 29 (37)); certified copies of hundreds of loose sheets of accounts said to be the copies of the cash book prepared by the auditor at the time of his audit (AIR 1966 Orissa 189); certified copy of deed of Wakfnama (AIR 1969 Mysore (103)).
The copies which are held to be not admissible are where the document is a copy of copy and the person who made that copy is not produced the document is inadmissible in evidence (AIR 157 Raj. 89 (91)); statement recorded by police officer u/s 161 Cr PC as it is not a public document (AIR 1984 Guj. 69); certified as to date of birth on basis of entry in register of certain church (AIR 1989 Cal. 120).
True copies unless shown to be made and compared with the original shall not be deemed to be secondary evidence (AIR 1968 Cal. 532); photocopies can be admissible only after examining the original record (AIR 1994 SC 591); photocopy of original attested by notary then no need to produce notary as witness when his attestation shows that he has compared the document with the original then it is admissible in evidence (AIR 1992 P&H 145); as far as photocopies are concerned they are not admissible till their genuineness is confirmed (AIR 1976 Orissa 236). Regarding admissibility of newspaper report, advertisement and messages it has been held that newspaper reports by themselves are not evidence of the contents thereof, such reports are only hearsay evidence (AIR 1994 SC 1733); a news item in a newspaper containing an interview by the press is not admissible((1988) 1 SCC 668). Tape recorded conversation can be admissible only as corroborative evidence of such conversation deposed to by any of the parties to the conversation (2000 Cri LJ 1125 (Del)). A document required to be compulsorily registered under the Registration Act and not registered cannot be received in evidence to prove transaction, however under the provisions of Registration Act it can be received for collateral purposes (2004 (3) ALD 66).
Having seen as to what Secondary Evidence is, under what circumstances a particular type of Secondary Evidence may be adduced, and the instances of the admissibility and inadmissibility of the different types of secondary evidence, we can safely conclude that “only in the exceptional cases will secondary evidence be admissible” is the judicial mandate for adducing it. Therefore, the parties that seek to give secondary evidence in place of original must keep the things discussed herein above in mind, otherwise it may cause great hardship to a party, which is genuinely not able to produce the original, for no fault of his in adducing the Secondary Evidence. And the adversary must promptly object to any such move because no objection would prove fatal.
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