Documentary Evidence (2022)

KEY TAKEAWAYS

  1. Document is an instrument which expresses a matter or records a matter using letters, figures, or marks. Documents are not just written paper.
  2. Documents maintained by the public office are public documents and others are private documents.
  3. In normal circumstances, it is presumed that the signatory to a document is well aware of the contents of the documents.
  4. Sections 74 and 75 define public and private documents respectively.

INTRODUCTION

When a suit, either civil or criminal, is adjudicated by the Court, the aggrieved party and Respondent are required to submit the evidence to prove their claims. The Indian Evidence Act, 1872 governs the law of evidence in India. Evidence is categorized into two types by the Act- primary and secondary evidence.

Section 62 of the Act defines primary evidence as the document which is produced for the inspection of the court. Section 63of the Act provides that the following are considered as secondary evidence:

  • Copies of the original made by mechanical processes which ensure the accuracy of the copy, and copies compared with such copies,
  • Copies made from the original,
  • Documents counterpart against the parties who did not execute the documents, and
  • Oral accounts of the contents of a document given by an eye-witness.

These copies are required to be certified.The most common source of evidence is witnesses and documents. We’ll be discussing documentary evidence- their types and proof.

DOCUMENT

The concept of evidence is prevalent in the Indian Judiciary since ancient times. In Hindu Law, evidence was of two kinds- divine and human. Documents fell within the ambit of human evidence. In Muslim Law, although documentary evidence was present, oral evidence was preferred over it. However, in the modern legal system, it is a settled principle that documentary evidence prevails over oral evidence.

Section 3 of the Evidence Actprovides that a document is a substance which expresses a matter or records a matter using letters, figures, or marks. In English law, it is defined as an instrument used for recording or transmitting information, typically in the form of writings on paper. For the documents to be included as evidence by the Court, they have to be proved.Section 61 of the Evidence Act provides that the contents of documents are required to be proved by either primary or secondary evidence.Documents are of two types- public document and private document.

PUBLIC AND PRIVATE DOCUMENT

Section 74 of the Evidence Act states that the documents maintained by the sovereign authority, the official bodies, the tribunals, the legislative, judicial, and executive organs of India, the commonwealth, and the foreign countries are public documents. When the state government keeps a record of a private document in the public domain, the document becomes a public document.

In the State of Madras vs G. Krishnan, AIR 1961 Mad 92, 1961 CriLJ 382, it was stated that the access of the public to the document was not an essential condition for the document to be a public document as per Section 74 of IEA. In Katikineni Venkata Gopala vs Chitluri Venkataramayya, AIR 1940 Mad 768, it was held that the income-tax return and the statements accompanying being a part of the record of the act of the Income-tax Officer who makes the assessment were regarded as public documents under section 74 of IEA.

Section 75 outlines that all the documents which do not fall under the ambit of the public document as per Section 74 are private documents. In Smt. Rekha Rana And Ors. vs Smt. Ratnashree Jain, AIR 2006 MP 107, a question arose before the High Court of Madhya Pradesh that whether the certified copy of a registered sale deed obtained from the office of Sub-Registrar could be regarded as a public document. It was observed that the deed of sale was conveyance which was executed by a person rather than being an act or record of an act of sovereign authority or official body or tribunal, or public officer or legislative, judicial, and executive. After registration, the sale deed was returned to the person who had presented it rather than being retained in the public office of the State. Therefore, the sale deed did not fall in the ambit of Section 74 of IEA and was concluded to be a private document.

PROOF OF PRIVATE DOCUMENTS

It is a well-settled proposition that the documents are admissible in the Court without any proof regarding their authentication and their genuineness.

SECTION 67

The document that is alleged to be written, either in entirety or partly, or signed by a person is required to be proved by proving that the handwriting belongs to the person to whom it is alleged to belong.

In Rao Saheb v Rangnath Gopalrao, [1972] 4SCC 181:AIR 1971 SC 2548, it was held that in ordinary circumstances, the signatory of the document was presumed to be aware of the content of the document. However, when forgery was pleaded by one of the signatories claiming that they did not have knowledge about the content of the document, the burden of proof was on the party who sought to prove the execution of the document and they had to prove the vice of the applicants’ claims.

In Rutta Pedda Narasareddy v Sughra Begum, [1973] 2 SCC 573: AIR 1973 SC 2378: [1974] 2 MLJ 1, the practice of putting thumb impression on documents in certain parts of India was acknowledged. The genuineness of such a document was consolidated by the fact that the power of attorney was even executed by putting a thumb impression.

SECTION 68

Section 68 of the Evidence Act provides for the sine qua non to prove the document that is required by law to be attested. The said section states that at least the attesting witness has to be called for the purpose of proving the execution of the document subject to the process of the Court for the document to be admissible as evidence. It, however, does not imply that all the attesting witnesses are required to be examined.

In Yumnam Ongbi TamphaIbema Devi v. Yumnam Joykumar Singh, Crl. A. No. 1600 of 2009, the Supreme Court had highlighted the importance of attestation and the attesting witness is required to put his signature on the will animoattestandi.

SECTION 73

The Court is empowered to form its own opinion by comparing signature, writing, or seal regardless of the opinion of the experts or any person acquainted in that area whenever the Court deems it necessary. The Court can even ascertain whether the digital signature belonged to the alleged person by-

  • Directing the alleged person or the Controller or the Certifying Authority to produce the Digital Signature Certificate, or
  • Directing someone to apply the public key listed in the Digital Signature Certificate and verify the digital signature.

In T. Subbiah vs S.K.D. Ramaswamy Nadar, AIR 1970 Mad 85, 1970 CriLJ 254, it was held that the Court could even take the extraneous aid by using a magnifying glass, by obtaining enlargement of photographs, or by even calling an expert for the purpose of determining the comparison.

MODE OF PROOF OF PUBLIC DOCUMENTS

Public documents are proved by secondary evidence such as the certified copy of the public document. Section 77 of the Evidence Act provides that the certified copies can be produced before the Court to prove the contents of the public documents of which the certified copies purport to be copied. Under Section 79 of the Evidence Act, the court is required to presume that the document purporting to be a certified copy of a public document is admissible as evidence.

Section 76 of the Evidence Act provides for the procedure of issuing certified copies of public documents. The public officer who is the custodian of a public document, which is accessible for the inception of citizens, has the authority to issue a certified copy of the public document. The authorized public officer would issue the certified copy on the demand of a citizen quid pro quo to the payment of the legal fees. The certified copy is required to have a certificate written at the foot of the copystating that the copy was the true copy of the document. The certificate should be dated and subscribed by the authorized officer with the mention of his name and his official title along with the seal.

Section 78 of the Evidence Act provides for the following modes to prove public documents:

  • The acts, orders, and notifications of any department of the Government will be proved by the records of the departments that are certified by the head of the respective department or by the document purporting to have been printed by order of the Government.
  • The proceedings of the Legislatures will be proved by the journals, published Acts or abstracts, and printed copies of the concerned Government.
  • The proclamation, orders, or regulations issued by the Government will be proved by the copies or extracts contained in the Gazette.
  • The acts of the Executive or the proceedings of the Legislature of a foreign country will be proved by the journals and certified copy sealed by the sovereign of that country.
  • The proceedings of a municipal body will be proved by a certified copy of the proceeding issued by the legal keeper and by a printed book purporting to be published by the body.
  • The public documents of a foreign country will be proved by original document or certified copy issued by legal keeper along with the certificate bearing the seal of a Notary Public or seal of a Notary Public of an Indian Council or diplomatic agent representing that the copy is duly certified by the officer having the legal custody of the original document embodying the proof of the character of the document according to the law of the foreign country.

In On The Death Of Md. Taimuddin vs Md. Mafizuddin, RSA 42/2006, it was observed that sections 77 & 78 of the Evidence Act had provided the mode of proving public document. The original sale deed was destroyed and was not proved. The certified copy of the sale deed was admitted in the Court as the evidence without any objection.

Check memo which was maintained by the officers in charge of the counting table during the election was a public document as per Section 74 of IEA. The certified copy of the check memo was issued by the Collector who was the custodian of the check memo as per Section 76 of the IEA.In Banamali Das v. Rajendra Chandra Mardaraj Harichandan, (1976) 1 SCC 54: AIR 1975 SC 1863, the petition had challenged the election where the certified copy of the check memo was admissible has held as admissible evidence.

CONCLUSION

The documentary evidence has superior position among the various forms of evidence in the legal framework. Documentary evidences except the public documents are required to be proved by primary evidence. Public documents can be proved by secondary evidence. In the private documents, signature and thumb expression are same evidentiary status.


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