Can the Court Refuse to Mark a (Relevant and Admissible) Document, for (i) there is No Formal Proof or (ii) it is a Photocopy?

Answer: No, the Court Cannot.

It is not at all proper for the court to vociferously drum-out the copy of a document totally disregarding the rights of the parties conferred by the Evidence Act to exhibit the copy (when it is admitted by the other side).
If the truth of contents of a document is disputed (and truth cannot be presumed under Ser. 114 Evidence Act), just marking the document, even with the (formal) consent of the opposite side, does not prove ‘truth’ of its contents. However, the party against whom the document is presented can admit truth of the contents also.

Saji Koduvath, Advocate, Kottayam.

Abstract

            •➧ Sec. 58, Evidence Act – Admission is a mode of proof; ‘Facts admitted need not be proved’.
              •➧ Sec. 136, Evidence Act permits to furnish a fact before proving it formally, if “the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking”.
              •➧ Order XIII Rule 3 CPC speaks as to rejection of irrelevant and inadmissible documents (it does not deal with mode of proof).
              •➧ Whenever a relevant and admissible document is tendered in evidence, otherwise than through its executant (or otherwise than through a person who can prove signature or handwriting) but through a person who can depose as to its contents, the Courts in India exhibit it ‘subject to proof’ or ‘subject to objection’. Same is the case, as to marking a copy without ‘foundational evidence’.
              •➧ Where no objection (to the opposite side) to marking a document and the court sees deficiency (e.g.: insufficiency of stamp), the court should bring notice of it to the counsel.

Documents Marked Without Objection as to its MODE OF PROOF – Effect

The law prevails in India is the following –

If a document is marked without objection as to its mode of proof, it is not open to the other side to object its admissibility afterwards.

Following leading decisions predicate the legal basis in this matter as under:

P.C. Purushothama Reddiar v. S. Perumal,(1972) 1 SCC 9 (Three Judge Bench – A.N. Grover, K.S. Hegde, A.N. Ray, JJ.)	Police reports were marked, without examining the Head Constables who covered those meetings, without any objection. Hence it was not open to the respondent to object to their admissibility.	Relied on: Bhagat Ram v. Khetu Ram, AIR 1929 PC 110.
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 (R.C. Lahoti, Ashok Bhan, JJ.)	Photo copies were admitted in evidence ‘without foundation‘; but, without objection. They cannot be held inadmissible for originals were not produced. Failure to raise a timely objection amounts to waiver.	Relied on: Padman v. Hanwanta, AIR 1915 PC 111 P.C. Purushothama Reddiar v. S. Perumal
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082	Copy of sale deed was marked without examining the executant or the donor; but, without objection. It was argued that mode of proof was insufficient. Held: Objection as to the mode of proof falls within procedural law. It could be waived.	Relied on: Gopal Das v. Sri Thakurji R.V.E. Venkatachala Gounder; Gopal Das v. Sri Thakurji, AIR 1943 PC 83; Sarkar on Evidence, 15th Edition, page 1084.
PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239 (R.M. Lodha, D.K. Jain,JJ.).	If no objection on ‘mode of proof’ (for, non-examination of the author and absence of “proof of acknowledgment” by him), it will be too late (in appeal) to raise objection.	…
Neeraj Dutta v. State (Govt. of N. C. T. of Delhi), 2023 4 SCC 731 (B. V. Nagarathna, V. Ramasubramanian, A. S. Bopanna, B. R. Gavai, S. Abdul Nazeer, JJ.)	If no objection as to mode of proof (secondary evidence) when marked, no such objection could be allowed to be raised at any later stage.	…
Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315	No objection as regards the truth* of contents* of Ex. 32. The witness of the defendant accepted the contents. Therefore, too late in the day to canvass that contents of Ex. 32 were not proved.	…

Who Should Object FIRST – Court or Opposite Side?

There is divergence of judicial opinion as to saying ‘NO’ by court to marking a document with formal defect, beforehand it is objected by the other side. Eg. Tendering copy of a document without furnishing the ‘foundational evidence’ to admit secondary evidence.

First view Court is under an obligation to exclude inadmissible materials.	H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492 (Followed in: U. Sree v. U. Srinivas: AIR 2013 SC 415.) Yeshoda v. Shoba Ram: AIR 2007 SC 1721
Second view The court cannot object first. If no objection for other side, Court cannot refrain from marking a document on its own volition or choice (on the ground of formal defect).	R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082. (This view is generally followed in India.)

First View: Court is under an Obligation to Exclude

In H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492, it is held:

“Mere admission of a document in evidence does not amount to its proof. … The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.” (Followed in: U. Sree v. U. Srinivas: AIR 2013 SC 415.)

In Yeshoda v. Shoba Ram: AIR 2007 SC 1721, it is held:

“In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. .. The conditions laid down in the said Section (Section 65) must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section.

Second View – Failure to Raise Objection, Amounts to Waiver

In RVE Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: 2003-8 SCC 752 it is laid down that “failure to raise timely objection” as to the irregularity of mode adopted for proving the document “amounts to waiver“.

Therefore it is clear that ‘objection’ is a matter that primarily remains in the realm of the opposite party; rather than the court.

It is typically followed in India, after R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple (supra).

Note: 1. If the deficiency is pertaining to non-registration of a compulsory registrable document (as it falls under the head, inadmissible document) the court can desist the marking of the document.
2. By virtue of the decision, G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339, unless the court has not applied its mind to the insufficiency of stamp, and unless there is a ‘judicial determination‘, the objection thereof can be raised at any time.

In RVE Venkatachala Gounder (supra), our Apex Court held as under:

“Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:
- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and
- (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient.
In the first case, merely because a document has been marked as ‘an exhibit’, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. …. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.”

Proof of Document is, normally, Proof of (both) Execution and Contents

When existence of a document is proved (either by admission or by proof), normally, contents thereof are also taken as proved.

In most cases, ‘proof of execution’ may lead the court to presume ‘proof of truth’. But, it is not a rigid rule, for it falls under the caption, “appreciation of evidence”.
Evidence Act does not expressly proffer anything as to “TRUTH of contents” of documents. It is left to the discretion (Sec. 3) of the court. In proper cases court is expressly authorised to presume (Sec. 114) truth.

Therefore, by virtue of our procedure-laws (especially, Sec. 3 and 114 Evidence Act) and the law handed down by our Apex Court, the Courts are free to appraise a “marked” document as under:

1. Contents and ‘Truth of its Contents’ stand proved, or
2. Mere marking does not amount to proof of contents (even), or
3. Admission of contents; not truth of contents (especially when truth is in issue), or
4. Admission of contents and truth of contents; but, its probative value is small or nil.

Admission by the other side, Proves Contents – No Blindfold Application

Court has wide powers under Sec. 165 of Evidence Act to require, evidence to prove a document marked on ‘admission’. Besides the powers under Sec. 165, the Procedural Acts show that the courts have jurisdiction to require the party concerned to prove admitted-documents. It is evident from the ‘Provisos’ of –

Sec. 58 of Evidence Act
O. XII, r. 2A Proviso, CPC and
Sec. 294 of the CrPC.

The Courts are free to refrain from acting upon any document, in the particular nature of a case, especially when the Court feels that injustice will be resulted by the blindfold application of this principle (admission of a document by the other side, proves its contents also), for it falls under the sphere, “appreciation of evidence”. It is the reason why the courts deviate from the general principles in certain cases, in the peculiar circumstances of those cases, saying –

(i) Contents are ‘not proved’ (Though signature Proved)
(ii) Truth of contents are ‘not proved’ (Though contents Proved)
(iii) Probative value is small or nil (Though contents and truth Proved).

Proof must be by one who can Vouchsafe for Truth – Not Beseem in All Cases

The normal rule as to proof of execution is made clear in Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745, under the following words –

“Its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue”.
See: Assistant Commissioner of Customs v. Edwin Andrew Minihan, ILR 2024-1 Ker 596; 2023-7 KHC 512; 2024-1 KLT 24.

This “normal principle” (that proof must be by one who can vouchsafe for truth), is not invariably followed – e.g., a letter or a deed obtained by a witness in ‘due/common course’. In such cases, if only ‘truth’ as to the contents of the documents is in dispute, this rule is insisted.

Relevancy of Evidence

Sec. 5 and 136 of the Evidence Act stipulate that evidence can be given only on ‘facts in issue’ or ‘relevant facts’. Relevant facts are enumerated in Sec. 6 onwards.

Sec. 5 Evidence Act, 1872 deals with Relevancy

Sec. 5 of the Indian Evidence Act, 1872 reads as under:

“5. Evidence may be given of facts in issue and relevant facts – Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
Explanation – This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure

Sec. 136, Evidence Act – Permits Evidence on Undertaking of the Party

Sec. 136, Evidence Act permits to furnish a fact before proving it formally, if “the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking”. It reads as under:

“S. 136. Judge to decide as to admissibility of evidence.
             When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
             If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
             If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.”

Court can Reject ‘Irrelevant’ or ‘Inadmissible’ Document At Any Stage

Order 13 Rule 3 CPC reads as under:

“Rejection of irrelevant or inadmissible documents – The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.

It is pertinent to note that Order 13 Rule 3 CPC speaks as to rejection of irrelevant and inadmissible documents, at any stage of the suit. It does not deal with probative value of a document, or marking/exhibiting the same in evidence. The courts can adjudicate the matters before it only on the basis of the substantive evidence.

Court Cannot Discard Documents, Straight Away. It has to be marked ‘subject to proof’

When a ‘relevant’ and ‘admissible’ document is tendered in evidence, otherwise than through its executant (or a witness to the document) –

Can it be discarded outright by the Court, pointing out – no ‘formal proof’?
What will be the situation if the opposite side does not raise objection (or expressly say – they have no objection) to such marking?
Can a copy of a document be marked without ‘foundational evidence’, on admission from other side?

It is definite –

The court cannot discard such documents, straight away.
It has to be marked ‘subject to proof’ or ‘subject to objection’, as it is the practice followed. The law also supports it.

Possible Potential Objections about Documents

Possible objections as to marking documents can be as regards –

(i) Relevancy.
(ii) Admissibility.
(iii) Probative value.
(iv) Mode (or procedure) adopted to prove – that is,
- Whether original, photocopy, certified copy etc. and
- Whether exhibited through proper or competent person.
(v) Insufficiency of stamp.
(vi) Compulsorily registrable, but unregistered.
(vi) Compulsorily attested by witnesses, but not attested (will, gift, mortgage, bond).

Each one of the objection is independent from another.

Read Blog: Substantial and Auxiliary Documents Used in Evidence

Admission is a Mode of Proof; ‘Facts Admitted Need Not be Proved’

Usually, a document is proved through its author, or through a witness to its execution or a person acquainted with handwriting. Concession or admission by the opposite side is an acceptable form of proving documents in evidence (under Sec. 17, 21, 58, 59 Evidence Act).

Sec. 58, Evidence Act reads as under:

“58. Facts admitted need not be proved: No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”

Sec. 58 says that no fact need be proved in any proceeding in three circumstances:

the parties or their agents agree to admit at the hearing
before the hearing, they agree to admit by any writing under their hands
by any rule of pleading they are deemed to have admitted by their pleadings.

“Hearing” Partakes ‘recording evidence’

Legal implication of the term ‘hearing’ is clear from Rule 2 (1) of Order XVIII (Hearing of the suit and examination of witnesses) of the CPC – that is, hearing partakes ‘recording evidence’. Rule 2 (1) reads as under:

“2. Statement and production of evidence – (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.”

Admissions at Hearing

Admissions at ‘hearing’ (by the advocate) may be made at the evidence-stage (while the witnesses are examined) and at the time of ‘final hearing’. Admissions of advocate are to be deciphered from Order-sheet or Judgment.

Once NO Objection to Mode of Proof, NOT Legitimate to Refrain Marking

From the above it is clear that it would not be legitimate for the court to refrain from exhibiting a relevant document which could be received in evidence on the (express or implied) concession or admission of the opposite side (as regards mode of proof), in the scheme of Evidence Act.

Our Procedure Codes (CPC, CrPC) also declare this principle.

Copy Marked, Without Objection, Right to Objection Stands Waived

“Admission”is a mode of proof, inasmuch as ‘facts admitted need not be proved’ (Sec. 58, Evidence Act). Once a document is marked as no objection to the mode of proof on account of lack of original, then the right to raise objection (on this score) stands waived. See:

Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873;
Sumita @ Lamta v. Devki, (Valmiki J. Mehta, J.), 25 Sep 2017 (indiakanoon);
Sonu @ Amar v. State of Haryana, AIR 2017 SC 3441; 2017-8 SCC 570
Dayamathi Bai v. KM Shaffi, (2004) 7 SCC 107;
R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752;
Rafia Sultan Widow of Mirza Sultan Ali Baig v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 GujLH 27; 1985-2 GujLR 1315
Sk. Farid Hussinsab v. State of Maharashtra, 1983 CrLJ 487 (Quoted in Sonu @ Amar v. State of Haryana, AIR 2017 SC 3441; 2017-8 SCC 570)

Admissions are Substantive Evidence By Themselves

In Bharat Singh v. Bhagirathi, AIR 1966 SC 405: [1966] 1 SCR 606, it was observed as under:

“Admissions are substantive evidence by themselves, in view of ss. 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appeared as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under s. 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence.”

Bharat Singh v. Bhagirathi is quoted/referred to in:

Dipakbhai Jagdishchandra Patel v. State of Gujarat, AIR 2019 SC 3363; 2019-16 SCC 547.
Union of India v. Moksh Builders And Financiers Ltd., 1977 AIR SC 409; 1977-1 SCC 60.
Bishwanath Prasad v. Dwarka Prasad AIR 1974 SC 117, 1974-1 SCC 78,
Sita Ram Bhau Patil v. Ramchandra Nago Patil, (1977) 2 SCC 49,
Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153; 1971-1 SCC 864.

Admission in a sale deed is ‘Substantive Evidence’; It need not be Confronted

In Murlidhar Bapuji Valve v. Yallappa Lalu Chougule, AIR 1994 Bom 358 (an often quoted decision), it was held that it was well settled law that an “admission” of a party (in a sale deed) was liable to be considered as substantive evidence even if the party made the admission was not confronted with the statement.

Judicial Admissions and Admissions in Pleadings

In Nagindas Ramdas v. Dalpatram Iccharam, AIR 1974 SC 471, it was held by the Supreme Court as under:

“26. Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rival as evidence are by themselves not conclusive. They can be shown to be wrong.” (Quoted in: Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad: AIR 2005 SC 809, 2005 (11) SCC 314.)

See also:

Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873;
Sumita @ Lamta v. Devki, (Valmiki J. Mehta, J.), 25 Sep 2017 (indiakanoon);
Oriental Insurance Co v. Premlata: (2007) 8 SCC 575,
Dayamathi Bai v. KM Shaffi, (2004) 7 SCC 107, AIR 2004 SC 4082;
R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752;
Narbada Devi v. Birendra Kumar: (2003) 8 SCC 745
Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63.

When a document is marked without objection, our courts take two (divergent) views:

First, both Contents and ‘Truth of its Contents’ stand proved.
Second, contents alone stand proved; and, not ‘Truth’ of its Contents.

Effect of marking document without objection is laid down in the following two recent decisions of the Supreme Court. In both these cases, it is seen, the Apex Court has taken the view that the ‘truth’ is also stood proved.

Neeraj Dutta v. State (Govt. of N. C. T. of Delhi)

The Constitution Bench (B. V. Nagarathna, V. Ramasubramanian, A. S. Bopanna, B. R. Gavai, S. Abdul Nazeer, JJ.) of our Apex Court laid down in Neeraj Dutta v. State (Govt. of N. C. T. of Delhi), AIR 2023 SC 330; 2023 4 SCC 731, as under:

Section 61 deals with proof of contents of documents which is by either primary or by secondary evidence.
When a document is produced as primary evidence, it will have to be proved in the manner laid down in Sections 67 to 73 of the Evidence Act.
Mere production and marking of a document as an exhibit by the court cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence. On the other hand, when a document is produced and admitted by the opposite party and is marked as an exhibit by the court, … (sic – no objection can be raised at any later stage with regard to proof of its contents).
The contents of the document must be proved either by the production of the original document i.e., primary evidence or by copies of the same as per Section 65 as secondary evidence.
So long as an original document is in existence and is available, its contents must be proved by primary evidence.
It is only when the primary evidence is lost, in the interest of justice, the secondary evidence must be allowed.
Primary evidence is the best evidence and it affords the greatest certainty of the fact in question.
Thus, when a particular fact is to be established by production of documentary evidence, there is no scope for leading oral evidence.
What is to be produced is the primary evidence i.e., document itself. It is only when the absence of the primary source has been satisfactorily explained that secondary evidence is permissible to prove the contents of documents.
Secondary evidence, therefore, should not be accepted without a sufficient reason being given for non-production of the original.
Once a document is admitted, the contents of that document are also admitted in evidence, though those contents may not be conclusive evidence.
Moreover, once certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence.
There is a prohibition for any other evidence to be led which may detract from the conclusiveness of that evidence and the court has no option to hold the existence of the fact otherwise when such evidence is made conclusive.

It is held further as under:

“44. Section 64 of the Evidence Act states that documents must be proved by primary evidence except in certain cases mentioned above. ….. Thus, once a document has been properly admitted, the contents of the documents would stand admitted in evidence, and if no objection has been raised with regard to its mode of proof at the stage of tendering in evidence of such a document, no such objection could be allowed to be raised at any later stage of the case or in appeal vide Amarjit Singh v. State (Delhi Admn.) 1995 Cr LJ 1623 (Del) (“Amarjit Singh”). But the documents can be impeached in any other manner, though the admissibility cannot be challenged subsequently when the document is bound in evidence.”

Objection as to non examination of the author is too late in the day

In PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239, it is observed that the objection as to non examination of the author is too late in the day . It is held as under:

“No objection on pleas of “inadmissibility” or “mode of proof” was raised at the time of their exhibition or any time later during trial, when most of the witnesses, produced by the parties were confronted with these, as duly exhibited, bearing stamp marking with particulars, prescribed under Order XIII Rule 4 of the Code of Civil Procedure, 1908 and duly signed as such.
In our opinion, it is too late in the day now to object to their exhibition on the ground of “prescribed procedure” i.e. mode of proof.
Moreover, we also find that it was nobody’s case that the said documents were got printed by John K or distributed amongst voters by him. Absence of proof of acknowledgment by him because of non production of John K as a witness, in the circumstances, in our view, is inconsequential.
Admittedly, John K was a well known leader of high stature, recognized as such by Christian/Catholic voters including those mentioned in Para 17 (supra) and, therefore, there is no question of drawing an adverse inference against the election petitioner for not examining him, as strenuously urged on behalf of the appellant, particularly when the printing and circulation of offending material (Exts.P1 and P2) has been proved by the election petitioner beyond reasonable doubt.”

(b) Document marked without objection – Contents (‘TRUTH also) proved

Objection as to Truth of Contents, First Time In Appeal – Effect – Too late in the day

In Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315 it is observed as under:

“It was never the case of the Commission that report which was submitted in a sealed cover was not the genuine and true report of the committee appointed by the Commission itself. Thus in short no objection about the truth of contents of Ex. 24/1 i. e. Ex. 32 was ever put forward before the trial Court and rightly so as that was the report of its own committee of experts appointed by the Commission for enlightening itself about the causes of the accident and about the future safety steps which were required to be taken to avoid such accidents. … Not only that but the witness of the defendant accepted the contents of the said document Ex. 32. Nothing was suggested by him or even whispered to the effect that the contents of the said report were in any way untrue. …. In fact both the sides have relied upon different parts of Ex. 32 in support of their rival contentions on the aspect of negligence and contributory negligence. It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal that contents of Ex. 32 were not proved in accordance with law and hence the document was required to be taken off the record. It is now well settled that objection about mode of proof can be waived by a party and that such objection is raised by the party at the earliest opportunity in the trial Court such objection will be deemed to have been waived and cannot be permitted to be raised for the first time in appeal (vide P. C. Purushottamman v. S. Perumal AIR 1972 SC 608; Pandappa v. Shivlingappa 47 BLR. 962; and Gopaldas and another v. Shri Thakurli, AIR 1943 PC 83 at page 87 ). In view of this settled legal position the objection raised by Miss Shah against admissibility of Ex. 32 viz. that its contents were not proved in accordance with law has to be repelled.”

When a document is marked without objection, no doubt, the presumption in Sec. 114 of the Evidence Act is wide enough to presume that (i) the “contents” of the document and (ii) its ‘truth’ stand ‘proved’. Therefore, it is the duty of the other side to express its disapproval – that it does not accept the ‘contents’ and/or ‘truth’ (if it is so).

The dissent thereof can be placed by the opposite side by-

Raising ‘objection’ at the time of its marking, or
Placing the protest by way of ‘suggestion’ to the witness or by proper questions.

(c) TRUTH is left to Discretion (Sec. 3) & Presumption (Sec. 114) of Court

Sec. 67, Evidence Act lays down the fundamental principles as to the proof of documents. Sec. 67 reads as under:

“67. Proof of signature and handwriting of person alleged to have signed or written document produced—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.”

Sec. 67 says as to ‘proof of signature and handwriting’ alone. Neither Sec. 67 nor any other section of the Evidence Act says about ‘proof as to truth‘ of contents of documents.

Inferences as to “TRUTH of contents

Evidence Act does not expressly proffer anything as to “TRUTH of contents” of documents.
It is left to the discretion (Sec. 3) of the court. In proper cases court can presume (Sec. 114) truth.
In most cases, ‘proof of execution’ leads the court to presume ‘proof of truth’.
It is more so, when a document is admitted (by the other side) without objection.
But, when proof as to ‘truth’ is in issue, or in dispute, the party in whom the burden thereof rests has to discharge it.

(d) Legal Position on ‘Waiver’ of Mode of Proof, Reprised

It appears that the legal position can be summed-up as under –

If a document is marked without objection, the right of objection (vested with the other side) stands waived. And the entire contents of the document will be admissible in evidence.
However, if (i) there is any intrinsic infirmity to the document, or (ii) specific proof as to truth is required in the nature of the case of the parties, or it is marked through a witness who is incompetent to prove it (and the opposite party does not expressly or impliedly accepted it), the court can say – it is not ready to act upon it, for truth or correctness of contents is not established.

In Dibakar Behera v. Padmabati Behera, AIR 2008 Ori 92, it is pointed out that (in such a situation) there must be some evidence to support the contents of such document.

The following decisions also lay down the proposition that ‘mere marking of a document’ as an ‘exhibit’ may amount to proof of contents, but not its ‘truth’.

Rakesh Mohindra v. Anita Beri, 2015 AIR(SCW) 6271.
Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758;
Sait Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865;
Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796 (“Mere identifying the signature of Mr. Pathak (by a witness) does not prove the contents of the said letter which is being relied upon by the appellant.”);

It is apposite to note – in RVE Venkatachala Gounder v. Arumlmigu Viswesaraswami, AIR 2003 SC 4548, the question as to ‘truth’ of contents did not specifically come for consideration. It is dealt with as under:

“Since documents A30 and A34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photo copies, the originals of which were not produced.”

Standard of Proof in Civil Cases – Preponderance of Probability

It is noteworthy that the standard of proof required in civil cases is different from that of criminal cases; since, civil court proceeds on a preponderance of probability, whereas criminal court insists ‘proof beyond reasonable doubt’. In Miller v. Minister of Pensions, (1947)2 All ER 372, Lord Denning, described preponderance of probability as “more probable than not”. It is said in picturesque as ‘likelihood of 51%’.

2. MERE MARKING, DOES NOT PROVE THE CONTENTS – NOT AN UNQUALIFIED PROPOSITION

This Proposition is Not to be Applied “Literatim”

It is disgraceful that several courts in India apply this proposition (Mere Marking Does Not Prove the Contents) ineptly.

This proposition is not attracted–

when a document is marked on ‘admission’ by the opposite side.

This proposition is attracted–

(i) when it is evident that the document is marked only for ‘identification‘, or
(ii) when the objection raised by the other side is sustained and the document is marked ‘subject to proof/objection’.

Each Case under this Head Requires Distinct Consideration

As this proposition (Mere Marking Does Not Prove the Contents) is not to be applied “literatim”, each case (which referred to this proposition) requires distinct consideration. (Some of these decisions mentioned this proposition, merely to show that such an argument was placed before it; but those decisions were quoted (subsequently) by some Courts as if those earlier decisions laid down a ‘ratio decidendi’.)

Read blog: Ratio Decidendi (alone) Forms a Precedent; Not the Final Order or Conclusion

Accepted law on this point –

1. MERE MARKING PROVE THE CONTENTS if no objection. E.g. Rent receipt executed by the opposite side; Photocopy of a document.
2. MERE MARKING WILL NOT PROVE THE CONTENTS if Truth of the facts in the document was “in issue“ or validity was very much in question.

Following are the often-cited cases on this subject.

Cited to support the Proposition – MERE MARKING PROVE THE CONTENTS

Decision	Were the documents ‘marked without proper proof‘ accepted in evidence?	Reason for MARKING
Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745	Yes. The rent receipts* were received in evidence. (without formal proof)*	The rent receipts were ‘not disputed’* by the other side.*
Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758	Yes. The secondary evidence* of dying declaration produced in this case was accepted by the Court.*	Secondary evidence was adduced with foundational evidence* (for producing copy; not original)*

Cited to support the Proposition – MERE MARKING DOES NOT PROVE THE CONTENTS

Decision	Did the proposition – Mere Marking Does Not Prove the Contents – unreservedly apply?	Reason for NOT MARKING
Ramji Dayawala v. Invest Import: AIR 1981 SC 2085	No. Truth of contents of a letter and two telegrams were not taken. (though marked)	Truth of the facts in the document was “in issue“
M. Chandra v. M. Thangamuthu, 2010-9 SCC 712	No. Validity and Genuineness of the Photocopy (of the Caste Certificate) was not accepted (though marked)	Validity and Genuineness of the Caste Certificate was very much in question
H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240	No. Contents of the *Photocopy* was not received as proof (though marked)	*Photocopy* was shown to the witness during cross-examination alone, and Signature alone was admitted by the witness.
Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865	No. Accounts of the Plaintiff was not received as proof (though marked)	The accounts of the Plaintiff would not be proved by itself

(a) Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745

[The proposition (Mere Marking Does Not Prove the Contents) was neither attracted nor applied in this case, for – the rent receipts were taken as proved, for, it was ‘not disputed’ by the other side.]

It is held in Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745 as under:

“Reliance is heavily placed on behalf of the appellant on Ramji Dayawala v. Invest Import: AIR 1981 SC 2085. The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue”.

Narbada Devi Gupta v. Birendra Kumar Jaiswal (supra) continued as under:

“The plaintiff did not dispute his signatures on the back of them. There was, therefore, no further burden of proof on the defendant to lead additional evidence in proof of the writing on the rent receipts and its due execution by the deceased landlady.”

Note:

In this case the rent receipts were taken as proved, for, it was ‘not disputed’._{[Hence the ‘legal position’ stated in Ramji Dayawala v. Invest Import (that mere production and marking of a document cannot be held to be a due proof) was not attracted in this case.]}

(b) Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758

[The proposition (Mere Marking Does Not Prove the Contents) neither attracted nor applied in this case, for – the secondary evidence of dying declaration produced in this case (with foundational evidence) was accepted by the Court]

In this case the Courts upheld the acceptance of the secondary evidence (of the dying declaration). Our Apex Court held as under-

“In the instant case, the Trial Court had granted permission to lead secondary evidence and the same had been adduced strictly in accordance with law and accepted by the courts below.”

It is only pointed out in this decision as under:

“However, the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non-production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. Further,mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with the proof , which is otherwise required to be done in accordance with law.
- (Vide: The Roman Catholic Mission v. The State, AIR 1966 SC 1457;
- Marwari Khumhar v. Bhagwanpuri Guru Ganeshpuri, AIR 2000 SC 2629;
- RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548;
- Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082; and
- LIC of India v. Rampal Singh Bisen,2010-4 SCC 491).”

(c) Ramji Dayawala v. Invest Import: AIR 1981 SC 2085

[The proposition (Mere Marking Does Not Prove the Contents) was applied in this case, for – Truth of the facts in the document was “in issue“]

It is held as under:

“Obviously, in these circumstances the Privy Council observed that the fact that a letter and two telegrams were sent by itself would not prove the truth of the contents of the letter and, therefore, the contents of the letter bearing on the question of lack of testamentary capacity would not be substantive evidence. Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. 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 those persons who can vouch safe for the truth of the facts in issue.”
_{Note: The aforequoted portion itself will show that the proposition – mere proof of the handwriting would not tantamount to proof of contents – is not absolute. It is attracted to this case, because the truth of the facts was “in issue“.}

(d) M. Chandra v. M. Thangamuthu, 2010-9 SCC 712

[The proposition (Mere Marking Does Not Prove the Contents) was attracted in this case, for – the Validity and Genuineness of the Photocopy (of the Caste Certificate) was very much in question]

In this decision it was held:

“The High Court while considering this issue has noticed that the appellant failed to produce the original certificate issued by Arya Samaj, Madurai and further has not examined Santnakumar, who was supposed to have received and retained the original certificate issued by the Arya Samaj and the original records have not been summoned from Arya Samaj and no steps have been taken to summon the responsible person from Arya Samaj to prove that the appellant underwent conversion. Therefore, the claim made by her about her reconversion cannot be accepted. We do not agree with the reasoning of the High Court. 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. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original.”
_{Note: It was an appeal from an Election petition and the Supreme Court allowed the appeal. The validity and genuineness of the Certificate was very much in question.}_{Therefore, the principles in RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548}_{(where the secondary evidence was marked without objection)}_{, was not attracted to this case (and it was not referred to also)}_.
Principle of law laid down in M. Chandra v. M. Thangamuthu is followed in Rakesh Mohindra v. Anita Beri, 2016 -16 SCC 483.

(e) H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240

[The proposition (Mere Marking Does Not Prove the Contents) was applied in this case, for – the Photocopy was shown to the witness during cross-examination alone, and Signature alone was admitted by the witness.]

It was held that the power of attorney was not proved in accordance with the terms of Sec. 65 of the Evidence Act, for the following –

The power of attorney had not been proved.
Original had never been filed before the Trial Court.
Only a photocopy of the same was shown to the respondent during cross-examination.
The respondent has only admitted his signature thereon.
He had never admitted its contents or genuineness.

It is held in H. Siddiqui v. A. Ramalingam, 2011-4 SCC 240, as under:

“In our humble opinion, the Trial Court could not proceed in such an unwarranted manner for the reason that the respondent had merely admitted his signature on the photocopy of the power of attorney and did not admit the contents thereof.”

It is added:

“More so, the court should have borne in mind that admissibility of a document or contents thereof may not necessary lead to drawing any inference unless the contents thereof have some probative value.”

(f) Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865.

[The proposition (Mere Marking Does Not Prove the Contents) was applied in this case, for – the accounts of the Plaintiff would not be proved by itself]

It is held that the documents do not prove themselves. It is also observed in this decision as under:

“15. The plaintiffs wanted to rely on Exs. A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. The proof of the plaintiffs’ books of account became important because the plaintiffs’ accounts were impeached and falsified by the defendants’ case of larger payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiffs’ books would not have supported the plaintiffs.” (Quoted in: Vinod Jaswantray Vyas v. State of Gujarat, 2024-7 SCR 365.)

Other Important Decisions –

1. LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry);
2. Birad Mal Singhvi v. Anand Purohith: 1988 (Supp) SCC 604 (document on date of birth).
3. Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796 (It is observed that mere marking as exhibit and identification of executant’s signature by one of witnesses does not prove contents of a document).
4. Vinod Jaswantray Vyas v. State of Gujarat, 2024-7 SCR 365 (mere marking of exhibit – letter – without the expert deposing about the opinion given therein would not dispense with the proof of contents).

3. IF ‘TRUTH’ IS IN ISSUE – Mere Marking Not Amount to ‘Waiver’

The fundamental principles as to proof of execution a document is that the execution has to be proved by proper evidence, that is by the ‘evidence of those persons who can vouchsafe for the truth of the facts in issue’ (Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745). But, in the facts and circumstances of each case, the court is at liberty to invoke its wisdom and fill certain gaps in evidence by applying ‘presumption’.

It is legitimate to say that this requirement as to proof of ‘truth’ is independent from inviting ‘proof of signature and handwriting’ in Sec. 67 to 71 of the Evidence Act. This proposition is clear from Sec. 67, which lays down the fundamental principles as to the proof of documents. Sec. 67 reads as under:

“67. Proof of signature and handwriting of person alleged to have signed or written document produced—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.”

Though proof of execution (dealt with in Sec. 67 to 71) is independent from proof as to ‘truth’ of contents of a document, proof as to ‘truth’ can be presumed by the court, in most cases, on ‘proof of execution’. It is more so, when a document is admitted without objection. Proof as to ‘truth’ is essential if ‘truth’ is in issue, or in dispute.

If ‘TRUTH’ is in issue, or in dispute, marking a document without objection, or mere proof of handwriting or execution,by itself, need not absolve the duty to prove the truth as to the contents of the documents. (Ramji Dayawala v. Invest Import, AIR 1981 SC 2085; Achuthan Pillai v. Marikar (Motors) Ltd., AIR 1983 Ker 81; Suresh v. Tobin, 2013-1 KerLT 293). Court has a duty to see that the statement of a witness gets independent corroboration, direct or circumstantial, in proper cases (Ahalya Bariha v. Chhelia Padhan, 1992 Cri.LJ 493).

In Ramji Dayawala v. Invest Import: AIR 1981 SC 2085, it us held as under:

“If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. 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 those persons who can vouchsafe for the truth of the facts in issue.”

4. Admission of Contents – May Dispense with Proof; But Probative Value may be Less or Nil

The discretion vested with the court to take presumption; and to evaluate probative value.

It is well settled that when a party leads secondary evidence, the Court is obliged to examine the probative value of the document and its contents, and to decide the question of admissibility of the same [Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; Kaliya v. State of MP, 2013-10 SCC 758].

Even when a document is technically admitted in court, the probative value thereof will always be a matter for the court to determine. That is, it is depended upon the nature of each case.

The probative value of Scene-Mahazar, Postmortem Report, Photocopy of a Registered Deed etc. without supporting legal evidence may be lesser. In such cases the court can refrain from acting upon such documents until regular evidence is tendered.

In Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758, it is held as under:

“The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence.”
[Note: Further held: “In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.”]

In Kaliya v. State of MP: 2013-10 SCC 758 our Apex Court also referred to H. Siddiqui v. A. Ramalingam, AIR 2011 SC 1492, and Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196.

In Rakesh Mohindra v. Anita Beri, 2015 AIR (SCW) 6271, as regards mere admittance of secondary evidence, it is held:

“Mere admission of secondary evidence, does not amount to its proof. The genuineness, correctness and existence of the document shall have to be established during the trial and the trial court shall record the reasons before relying on those secondary evidences.”

In Life Insurance Corporation of India v. Ram Pal Singh Bisen [2010-4 SCC 491], it is observed as under:

“26. We are of the firm opinion that mere admission of document in evidence does amount to its proof. In other words, mere marking of exhibit on a document does dispense with its proof, which is required to be done in accordance with law. …..
27. It was the duty of the appellants to have proved documents Exh.-A-1 to Exh. A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would partake the character of admissible evidence in Court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.”

The Calcutta High Court quoting Life Insurance Corporation of India v. Ram Pal Singh Bisen [2010-4 SCC 491] it is observed in Bajaj Allianz General Insurance Company v.Smt. Santa (2019-2 ACC 36) that ‘even if the document had been marked as Exhibit-A without objection, without a formal proof thereof in accordance with the provisions of the Evidence Act, such document lost its credibility and is of no probative value’.

Read Blog: 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act

Best Evidence Rule and ‘Evidence of High Probative Value‘

Though various kinds of secondary evidences are provided under Sec. 63, the ‘probative value’ of one kind (say, a photograph/photostat of an original document, as stated in Illustration (a) of Sec. 63) will definitely be higher when compared with another (say, oral account). The best evidence rule insists for evidence bearing high ‘probative value’.

In State of Bihar v. Radha Krishna Singh (AIR 1983 SC 684) it is observed as under:

“Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”

Evidence in Old Transaction – Vigor in RECENT TRANSACTIONS could Not be EXPECTED

In Muthialpet Benefit Fund Ltd. v. V. Devarajulu Chetty, AIR 1955 Mad 455, it is held as under:

“7. To my mind, neither of the first two points is convincing because the first is based on the rather over-optimistic and facile profession of faith made in every minors suit that he the minor is going to win and to which the statistics of our Courts do not unfortunately lend any support and especially so in this case and in the circumstances set out above, which make out prima facie that the mortgagee public institution made proper and bona fide enquiry as to the existence of necessity and did all that was reasonable to satisfy itself as to the existence of such necessity. In such a case even if there was no necessity in fact or even if the money borrowed was not applied to meet the necessity, the alienation will be upheld. The recitals of necessity in the deed are admissible in evidence as admissions of the Manager or father and also amount to representation of necessity though in the case of RECENT TRANSACTIONS evidence aliunde*^* would be NORMALLY EXPECTED. These elementary propositions require no buttressing by citations (See Mulla, Hindu Law, Edn.10, p.285; Raghavachari: Hindu Law, Edn.3, p.335 and following; Mayne: Hindu Law, Edn.11, Re-print pp.474-475). Secondly, it is in the best interest of the mortgagors themselves to prevent the deterioration of the value of the corpus and market it into cash and keep the sale proceeds in Court pending and abiding the result of the suit.”
(*^*from other sources)

Read Blog: Best Evidence Rule in Indian Law

Secondary Evidence would be Admissible only in Exceptional Cases

In Kalyan Singh v. Chhoti, AIR 1990 SC 396, it had been observed as under:

“A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not certified copy. It is just an ordinary copy. There is also no evidence regarding content of the original sale deed. Ex.3 cannot therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.”

It is pointed out by our Apex Court in various decisions including M. Chandra v. M. Thangamuthu, 2010-9 SCC 712, that the production of primary document is the rule; the secondary evidence would be admissible only in exceptional cases. Primarily, to admit secondary evidence:

(i) there should be authenticated foundational evidence that the alleged copy is in fact a true copy of the original, and
(ii) the party concerned was genuinely unable to produce the original.

5. Court should allow to adduce proper evidence to prove documents

Besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts shows that the court has jurisdiction to require the party concerned to prove that document. It is evident from –

              • Sec. 58 of Evidence Act
              • O. XII, r. 2A Proviso, CPC and
              • Sec. 294 of the CrPC

Inasmuch as –

(a) mere marking of a document on admission will not amount to proof, or evidence of the contents of the document or its truth;
(b) the probative value of a document ‘marked without objection’ may be low or nil, for want of proper proof; and
(c) there may be a formal defect to the document for it is a secondary evidence and it is produced without adducing ‘foundational evidence’,

it is legitimate to say that before taking an adverse stance as to proof in these counts, the court should give an opportunity to the party who relies on the document to cure the deficiency.

Duty of the Court to Aid Fair Trial

As shown above, the Privy Council, in Padman v. Hanwanta, 1915 (17) BomLR 609: AIR 1915 PC 111, held, as regards objection as to the admissibility of a certified copy of a will without any objection, as under:

“11. … Had such objection been made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their Lordships think that there is no substance in the present contention.”

Defect for not producing a proper power of attorney being curable, in Haryana State Coop. Supply and Marketing Federation Ltd. v. Jayam Textiles, 2014 AIR SC 1926 (a case under Section 138 Negotiable instruments Act), the Apex Court gave opportunity to the petitioner to produce the authorization of Board of Directors. It is observed that the in Raj Narian v. Indira Nehru Gandhi, (1972) 3 SCC 850 it was held that the rules of pleadings are intended as aids for a fair trial and for reaching a just decision.

This principle is iterated in following cases also:

F.A. Sapa v. Singora, (1991) 3 SCC 375;
H.D. Revanna v. G. Puttaswamy Gowda, (1999) 2 SCC 217;
V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737;
Mahendra Pal v. Ram Dass Malanger, (2000) 1 SCC 261;
Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617; (observed that facta probanda (material facts) are to be set out in the pleadings and facta probantia (particulars or evidence) need not be set out in the pleadings);
Sardar Harcharan Singh Brar v. Sukh Darshan Singh, (2004) 11 SCC 196
(held that defective verification or affidavit is curable);
Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511;
Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740;
KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428

TIME TO RAISE OBJECTIONS

Before Trial: The objections as to the admissibility of documents can be placed on record, before trial (i) by raising them in pleadings, or (ii) by tendering positive statement (filing petition/ affidavit/ objection).

At the Trial: Two (apparently incongruent) propositions are seen strongly propounded as regards placing objections, at the trial –

right-at-the-time of tendering the same for exhibiting;
any time in trial (and not in appellate stage).

It is emphasised in Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873, that the objection is to be taken before a document is marked as an exhibit and admitted in Court, as the mode of proof falls within procedural law.

Mode of Proof falls within Procedural Law

In Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873, it is held as under:

“23. This Court in the opinion written by Justice S. H. Kapadia in Dayamathi Bai v. KM Shaffi, (2004) 7 SCC 107 has similarly held that objection as to the mode of proof falls within procedural law. Therefore, such objections could be waived. Moreover, objection is to be taken before the document is marked as an exhibit and admitted in Court.

Objection in Proper Time – Allows to Cure defects in Mode of Proof

It is held further in Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873, as under:

24. In view of the foregoing discussion, it is clear that plea regarding mode of proof cannot be permitted to be taken at the appellate stage for the first time, if not raised before the trial Court at the appropriate stage. This is to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side. If such objection was raised before trial court, then the concerned party could have cured the mode of proof by summoning the original copy of document. But such opportunity may not be available or possible at a later stage. Therefore, allowing such objection to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy & would seriously prejudice interests of that party. It will also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of R.V.E. Venkatachala (Supra).”

Time to place Objection: To the pointed question, when the objection is to be placed (either at the time of marking, or at any time in trial), the following assertions may be the feasible answer:

First – raise objection while Tendering/Exhibiting the document;
Second – raise objection in cross examination of the witness through whom it is marked;
Third – place “objection” by filing an application, memo, affidavit etc. (at any time during trial); or
Fourth – place “objection” in the final argument in the trial court (to be reflected in the proceeding-paper or Judgment).
- Note: 1. The and fourth modalities can be invoked only if the right to object marking of document had not been expressly or impliedly waived.
- 2. If the validity or genuineness of the document itself is a subject matter of issue, no objection need be raised.
- 3. In a proper case, if objection as regards a document is already raised in pleadings, or tendered positive objection-statement (filing petition/ affidavit/ objection), specific objection may not be necessary.
- 4. In G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339, it is held that in proper cases (failure to raise objection as regards stamp duty, for the senior counsel was not present when the document was marked) the Trial Courts have the authority to revisit and recall the process of admission in exercise of its inherent power saved by section 151 CPC.

Objections Cannot be Raised for the First Time in Appeal

Following decisions lay down that the objections cannot be permitted to be raised for the first time in appeal-

Pandappa v. Shivlingappa, 47 BLR. 962;
Padman v. Hanwanta, AIR 1915 PC 111;
Gopal Das v. Sri Thakurji, AIR 1943 PC 83;
Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655,
P. C. Purushottamman v. S. Perumal, AIR 1972 SC 608;
Rafia Sultan Widow of Mirza Sultan Ali Baig v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 GujLH 27; 1985-2 GujLR 1315;
R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P Temple, (2003) 8 SCC 752;
Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873.

Odd View: Bipin Shantilal: Mark document tentatively, and Decide Objection in Final Judgment

It was observed by the Supreme Court in 2001 in Bipin Shantilal Panchal v. State of Gujarat (Three Judge Bench), AIR 2001 SC 1158, that ‘it is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection’. And, the Court directed as under:

“When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment.” (Quoted in: Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873; RVE Venkatachala Gounder v. Arulmigu , AIR 2003 SC 4548: (2003) 8 SCC 752)

Contra view to Bipin Shantilal

Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, spoke as to admissibility of

(i) documents (or material) and
(ii) oral evidence (questions).

Bipin Shantilal did not favour taking a final decision as to marking an objected document (and receiving objected questions), then and there.

Contra view taken as regards documents

The law laid down in Bipin Shantilal, as regards objection to marking documents (or material), had been (impliedly) reversed by RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548: (2003) 8 SCC 752. It was held that the objection as to ‘mode of proof’ should be taken at the time of marking of the document as an exhibit, so that the defect can be cured by the affected party.

Contra view taken as regards oral evidence

The view taken in Bipin Santilal as regards objection to recording oral evidence had been expressly varied, or reversed, by In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State Of Andhra Pradesh (Three Judge Bench), 2021-10 SCC 598.

In Re: To Issue Certain Guidelines Regarding Inadequacies

In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State Of Andhra Pradesh (Three Judge Bench), 2021-10 SCC 598, considered oral evidence (questions) and ruled that Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, stood modified (overruled), and directed as under:

“…….. Therefore, this court is of opinion that the view in Bipin Shantilal Panchal should not be considered as binding. The presiding officer therefore, should decide objections to questions, during the course of the proceeding, or failing it at the end of the deposition of the concerned witness.”

Law does not favour Bipin Shantilal Panchal v. State of Gujarat

It is definite that the courts in India consistently follow RVE Venkatachala Gounder v. Arulmigu (Two Judge Bench), AIR 2003 SC 4548: (2003) 8 SCC 752, and Dayamathi Bai v. K.M. Shaffi (Two Judge Bench), AIR 2004 SC 4082: 2004- 7 SCC 107, declining Bipin Shantilal Panchal v. State of Gujarat (Three Judge Bench), AIR 2001 SC 1158.

In no subsequent case the Apex Court applied the dictum in Bipin Shantilal Panchal v. State of Gujarat. In State of NCT of Delhi v. Mukesh (Three Judge Bench), 2014-15 SCC 661, refuted to follow Bipin Shantilal Panchal observing as under:

“The decision referred to by the learned Counsel in the case of Bipin Shantilal Panchal [supra] has to be read and understood in that context.”

Marking a document ‘Subject to Objection’ (After applying mind)

Though the decision taken by a court to mark a document ‘subject to objection’ is improper, it appears, in a proper case, marking a document (with the rider) “subject to proof” may be a legitimate action – if it is a “decision” (after applying mind) ruled-down in In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State of Andhra Pradesh (supra). Nevertheless, a document can be marked (with the rider) “subject to proof/ objection” only if it is not possible to take a decision (in a summary manner) then and there; and the law does not favour the principles laid down in Bipin Shantilal Panchal v. State of Gujarat (defer the whole matter for decision in future).

SECONDARY EVIDENCE

Proof of Contents of Documents

Contents of documents can be placed before the court in two ways:

producing the documents in original
(by way of) secondary evidence.

Factual Foundation Must be Established (if No Admission)

The party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced.

As a general rule, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It is pointed out that there is obligation upon the courts to decide the question of admissibility of the secondary evidence of the documents produced, before making it by the proper endorsement thereon. See:

Rakesh Mohindra v. Anita Beri: 2015 AIR (SCW) 6271
H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492.

In H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240, as shown above, a copy of a power of attorney alone was shown to the respondent during cross-examination and he admitted his signature thereon only, and never admitted its contents or genuineness. Therefore, it was held that the power of attorney was not been proved. it is held as under:

“12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.
- (Vide: The Roman Catholilc Mission & Anr. v. The State of Madras & Anr., AIR 1966 SC 1457;
- State of Rajasthan & Ors. v. Khemraj & Ors., AIR 2000 SC 1759;
- Life Insurance Corporation of India & Anr. v. Ram Pal Singh Bisen, (2010) 4 SCC 491; and
- M. Chandra v. M. Thangamuthu & Anr., 2010-9 SCC 712.)”
“17. Therefore, it is the duty of the court to examine whether the documents produced in the court or contents thereof have any probative value”. (Quoted in: Nandkishore Lalbhai Mehta v. New Era Fabrics P.Ltd., 2015)

Secondary Evidence, Marked Without Objection – Effect

When the party gives in evidence a certified-copy, or other secondary-evidence, without proving the circumstances entitling him to give secondary evidence, the opposite party must raise his objection (if any) at the proper time.

The Privy Council in Padman v. Hanwanta, 1915 (17) BomLR 609: AIR 1915 PC 111, held as regards objection as to the admissibility of a certified copy of a will, as under:

“11. The defendants have now appealed to His Majesty in Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being laid for its admission. No objection, however, appears to have been taken in the first Court against the copy obtained from the Registrar’s office being put in evidence. Had such objection been made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their Lordships think that there is no substance in the present contention.”

In case, objection is not raised at the relevant point of time, he is precluded from raising it at a belated stage. As shown above, it stands waived.

Document Marked Without Objection: Courts in India consistently follow RVE Venkatachala Gounder

RVE Venkatachala Gounder v. Arulmigu (R.C. Lahoti & Ashok Bhan, JJ.), AIR 2003 SC 4548: (2003) 8 SCC 752,considered the effect of marking a secondary evidence (photocopy of rent-note) without any objection. It is the well-established decisive leading decision in the following propositions of law.

Objection as to the irregularity of mode adopted for proving the document should be taken when the evidence is tendered;
Once the document has been marked as an exhibit, the objection cannot be allowed to be raised at any subsequent stage.
Failure to raise a prompt and timely objection amounts to waiver of that right.
The objection enables the court to apply its mind and pronounce its decision on the question of admissibility.
It is a rule of fair play for it would have enabled the party tendering the evidence to cure the defect by giving formal proof of a document.

Following earlier decisions were relied on in RVE Venkatachala Gounder v. Arulmigu (supra) :

The Roman Catholic Mission v. The State of Madras, AIR 1966 SC 1457;
Padman and Others v. Hanwanta, AIR 1915 PC 111;
P.C. Purushothama Reddiar v. S.Perumal, 1972 (2) SCR 646.

RVE Venkatachala Gounder v. Arulmigu (supra) held as under:

“17. The other document is the rent note executed by Defendant 2 in favour of the plaintiff. Here also the photocopy of the rent note was produced. Defendant 2 when in the witness box was confronted with this document and he admitted to have executed this document in favour of the plaintiff and also admitted the existence of his signature on the document. It is nobody’s case that the original rent note was not admissible in evidence. However, secondary evidence was allowed to be adduced without any objection and even in the absence of a foundation for admitting secondary evidence having been laid by the plaintiff.
18. …
19. ….
20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as “an exhibit”, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.
23. Since documents Exts. A-30 and A-34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photocopies, the originals of which were not produced.”

RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548: (2003) 8 SCC 752, is referred to and quoted with approval in the following decisions:

Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873;
Sonu @ Amar Vs State Of Haryana, 2017 AIR SC 3441; 2017-8 SCC 570;
Nandkishore Lalbhai Mehta v. New Era Fabrics Pvt. Ltd., 2015-9 SCC 755;
Shalimar Chemical Works Ltd. v. Surendra Oil & Dal Mills, 2010-8 SCC 423;
Malay Kumar Ganguly v. Sukumar Mukherjee, 2009-9 SCC 221;
Directorate of Revenue v. Mohammed Nisar Holia, 2008 2 SCC 370;
Dayamathi Bai v. K. M. Shaffi, AIR 2004 SC 4082; 2004-7 SCC 107.

Courts to Admit Documents Without Proof

Section 163 of the Evidence Act, reads as under:

163. Giving, as evidence, of document called for and produced on notice: When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

It is observed in Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, with respect to a document used under Sec. 163, as under:

“The further contention is that if they are to be admitted, they cannot be put in or at any rate used without proof. But the section itself says that the party calling for it is bound to give it as evidence if required to do so, and that certainly means that it goes in as a record of the particular proceeding and that it can be looked at to see what it includes or omits.”

It is noteworthy that Order XI rule 15 and Order XII rule 8 are the provisions in the CPC to give notice to the other party to produce documents (for ‘inspection’ and ‘show court’, respectively). In Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, and R v. Makhan, AIR 1940 Cal 167 it was observed that Section 163 of the Evidence Act applies to Criminal Proceedings also.

Court cannot Ludicrously Throw-out Copy of a Document

Inasmuch as Indian law expressly declares and authorises –

(i) ‘admission’ is a mode of proof, inasmuch as ‘facts admitted need not be proved’ (Sec. 58, Evidence Act);
(ii) Sec. 136, Evidence Act permits to use a fact before proving it formally on “the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking”; and
(iii) it is the trite law accepted by the courts in India that –
- the court has jurisdiction to require the party concerned to prove a document in spite of marking it (under Sec. 58 of Evidence Act, O. XII, r. 2A Proviso, CPC and Sec. 294 of the CrPC), and
- the probative value of the document is the matter for the court,
it is not at all proper for the court to vociferously thwart or drum-out the copy of a document totally disregarding the rights of the parties conferred by the Evidence Act (to exhibit copy of the documents).

As mentioned above, the Courts in India consistently follow RVE Venkatachala Gounder (supra) as regards the rules for production of a secondary evidence. This decision considered the effect of marking a secondary evidence (photocopy of rent-note) without any objection.

If No Objection to the opposite side, Can a Photocopy of a (Relevant) Document be Marked?

Yes.

From RVE Venkatachala Gounder it is definite that the objection with respect to the objection for exhibiting a document is a matter primarily rested with the opposite party.

It would not be legitimate for the court to refrain from exhibiting a relevant document which could be received in evidence on the (express or implied) concession or admission of the opposite side (as regards mode of proof, including production of a photocopy), in the scheme of our Procedure Codes and Evidence Act.

As shown above, in RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548: (2003) 8 SCC 752, it was held that when photocopies of the originals are admitted in evidence without objection, it cannot be rendered inadmissible.

In Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718, our Apex Court considered admission of a photocopy of an official document, in the following factual matrix:

The failure to produce the originals or certified copies of other documents was properly explained as being untraceable after the death of the brother of P.W.1 who looked after property matters.
The attempt to procure certified copies from the municipality was also unsuccessful as they were informed that the original files were not traceable.
The photocopies were marked as exhibits without objection.
The respondents never questioned the genuineness of the same.
Despite the aforesaid, and the fact that these documents were more than 30 years old, were produced from the proper custody of the appellants along with an explanation for nonproduction of the originals, they were rejected (by the High Court) without any valid reason holding that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers.

In this premises the Supreme Court held as under:

“This finding in our opinion is clearly perverse in view of Section 114(e) of the Indian Evidence Act 1872, which provides that there shall be a presumption that all official acts have been regularly performed. The onus lies on the person who disputes the same to prove otherwise.”

Delhi High Court held in Sumita @ Lamta v. Devki, (Valmiki J. Mehta, J.), 25 Sep 2017 (indiakanoon), as under:

“…. it is conceded by the counsel for the appellants/defendants that before commencement of cross-examination of PW-1 and PW-2 there was no objection raised that the Will cannot be proved inasmuch as the Will only is a photocopy. Once no objection is raised to the mode of proof on account of lack of original, then now the objection cannot be raised to the mode of proof as the objection to the mode of proof stands waived in view of the ratio as laid down in the judgment of the Supreme Court in the case of R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752.”

Photocopy is a Reliable Secondary Evidence

It falls under Sec. 63(2) it being the product of ‘mechanical processes which in themselves insure the accuracy of the copy‘.

As regards Photocopy, it is laid down in Surinder Kaur v. Mehal Singh, 2014(1) RCR(Civil) 467 (P&H) as under:

“a) Photostat copy of a document can be allowed to be produced only in absence of original document.
b) When a party seeks to produce Photostat copy it has to lay the foundational facts by proving that original document existed and is lost or is in possession of opposite party who failed to produce it.
Mere assertion of the party is not sufficient to prove these foundational facts.
c) The objections as to non existence of such circumstances or non existence of foundational facts must be taken at earliest by the opposite party after the photostat copy is tendered in evidence.
d) When the opposite party raises objection as to authenticity of the Photostat copy its authenticity has to be determined as every copy made from a mechanical process may not be accurate. Both the requirements of clause (2) of section 63 are to be satisfied.
e) Allowing production of Photostat copy in evidence does not amount to its proof. Its probative value has to be proved and assessed independently. It has to be shown that it was made from original at particular place and time.
f) In cases where the Photostat copy is itself suspicious it should not be relied upon. Unless the court is satisfied that the Photostat copy is genuine and accurate it should not be read in evidence.
g) The accuracy of Photostat copy shall be established on oath to the satisfaction of court by the person who prepared such copy or who can speak of its accuracy.”
- Note: It appears that the proposition, ‘accuracy shall be established on oath’, is a surplusage (for, a photocopy, by itself, ‘insures the accuracy of the copy’ under Sec. 63, and the court is free to apply the presumptions under Sec. 114).

If No Objection, Photocopy can be Marked (as Secondary Evidence)

Thayyil Chandrasekharan v. Athikkotu Prasad , 2019 3 CurCC 297 (In the written-statement it had been stated that the original agreement was destroyed.)
Kishore Kumar Khaitan v. Praveen Kumar Singh, 10 Jul 2019 (Indiakanoon)
National Insurance Company Limited v. Dipannita Acharya, 2019 ACJ 1823.
Krishna Ponnuswamy v. Punitha Anand, 2018-1 MLJ 799.
Union of India v Rabindra Ch. Das, 2013-6 GauLJ 335; 2013 9 RCR(Civ) 624 (No objection raised, at the time of admitting the document.)

Is there Total Bar for Exhibiting Photocopy of a Sale Deed (Other Than a Certified Copy) under Section 65 clause (f)? Is Certified Copy of a Sale Deed Essential?

The answer is ‘No’.

The doubt arises from or ‘in terms of‘ clauses (e) and (f) of Sec. 65.

Sec. 65 clauses (e) and (f) read as under:

“(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**.”

Sec. 65 further lays down –

“In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.”
- ** “(permitted) to be given in evidence“ propounds – giving copy in evidence without reference to or accounting for “original” (i.e., without saying “where the original is”).
- That is, under Sec. 65 clause (a) to (d), a copy can be given by a party to a proceeding if only any one of the conditions therein (original is with other side, original has been destroyed or lost, etc.) is satisfied; but, Sec. 65 (e) and (f) says that secondary evidence (certified copy) can be given in evidence even if original is with him; (or in other words, he can produce the secondary evidence – certified copy – without saying “where the original is” (i.e., without reference to “original” – such as original is with other side, original has been destroyed or lost, etc.).

By virtue of the above provisions in Sec. 65, it is often debated that ‘a certified copy’ of the Sale Deed ‘alone’, and “no other kind of secondary evidence, is admissible”. It is not well-founded; because,

(1) the copy of the deeds in the Books in the Sub Registrar’s Office is not “a public document within the meaning of section 74” – referred to in clauses (e) of Sec. 65,and
(2) the copy of the deeds in the Books in the Sub Registrar’s Office is not “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” (without reference to “original”) – referred to in clauses (f) of Sec. 65.

No (procedural) law permits production of ‘certified copy’ of a sale deed, in the court, without saying where the original is or it is lost (i.e., without laying the foundational evidence for the non production of the original).

Note: Sec. 57 of the Registration Act reads as under:

“57. Registering officers to allow inspection of certain books and indexes, and to give certified copies of entries —
(1)… (2) … (3) … (4) …
(5) All copies given under this section shall be signed and sealed by the registering officer, and shall be admissible for the purpose of proving the contents of the original documents.”

It is definite – the words, “shall be admissible for the purpose of proving the contents of the original” cannot be read as (or equated to): “certified copy … permitted by this Act, or by any other law in force in India to be given in evidence” (without reference to “original”).

Note:
The expression (in proof of the contents) in Sec. 77 of the Evidence Act makes the difference clear:
“77. Proof of documents by production of certified copies – 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.”

Therefore, any kind of (admissible) secondary evidence of a sale deed can be given in evidence; and production of certified copy cannot be insisted. (If it falls under clause (e) or (f) of Sec. 65, certified copy ‘alone’ can be given – as secondary evidence.)

Following decisions considered both Sec. 57 of the Registration Act and Sec. 65 (e) & (f) Evidence Act and found that in the absence of a registered sale deed, a certified copy could be filed as secondary evidence. Though these decisions did not ponder on the point whether a certified copy ‘alone‘ (and “no other kind of secondary evidence“) can be filed, they definitely state that secondary evidence of a sale deed (or similar other deeds) can be given in evidence only when it is shown – the original is lost or not in a position to produce before the court (foundational evidence), as provided in Sec. 65 (a), (b) & (c). [That is, Sec. 65 (f) is not attracted.]

Puspa Dey v. Sukanta Dey, 2019-3 CalLT 206,
Upendra Rao v. M. K. Ammini, ILR 2017-1 (Ker) 466;
Om Parkash v. Ram Gopal, 2011-4 PLR 364;
Ismail Gafurbhai Vohra v. Kirit Bhagvatprasad Vyas, 2013-2 GLR 1230;
Sandeep v. State of Haryana, 2011-4 LawHerald 3507,
Kalyan Singh v. Smt. Chhoti, AIR 1990 SC 306,
Nani Bai v. Gita Bai Kom Rama Gunge, AIR 1958 SC 706.

Sale deed Copy permitted only after foundational evidence

Hence S. 65(f) not attracted.

In Datti Kameswari v. Singam Rao Sarath Chandra, AIR 2016 AP 112, it is held as under:

“Production and marking of a certified copy as secondary evidence of a private document (either a registered document like a sale deed or any unregistered document) is permissible only after laying the foundation for acceptance of secondary evidence under Clause (a), (b) or (c) of Section 65.”

In Om Parkash v. Ram Gopal alias Paali Ram alias Doojpuri Maharaj, 2011-4 PLR 364 (P&H) it is observed as inder:

“In this case original sale deed has not been filed. However as per case of petitioners-plaintiffs, the original has been lost and the same was not traceable, after the death of their father, hence, sufficient explanation has come on the record for not filing the original document.”

Referring Krishna Kishore Chowdhari v. Kishore Lal Roy, 14 IA 71 it is observed in G. Chikkapapanna v. Kenchamma, 1999-1 CivCC 611; ILR 1998 Kar 3450; 1998-5 KarLJ 360, it is held that the party concerned has to lay foundation and establish reason for non-production nor availability of original (registered) document.

(Inasmuch as it is necessary to show the reason for non production of original to produce a copy of a registered deed, it does not fall under Section 65(f); and therefore certified copy is not essential – any type of secondary evidence can be adduced in evidence.)

It is said in G. Chikkapapanna v. Kenchamma as under:

“38. In the case of Krishna Kishore, supra, their lordships referring to Section 65 of the Evidence Act, observed as under:
”There are however cases under the act in which secondary evidence is admissible even though the original is in existence, one of the cases is under Section 65, clause (e) when the original is a public document within the meaning of Section 74 and another under clause (f) when original is document of which certified copy is permitted by this act or any other law in force in british india to be given in evidence but no other kind of secondary evidence is admissible. “If then the anumati patra was a public document within the meaning of Section 74 of the Act, which in their lordships opinion it was not, no secondary evidence would have been admissible except a certified copy”.
As an anumati patra, even if registered, is not a public document, as held by the Privy Council so the settlement deed will stand on same footing, it also cannot be said to be a public document.”
40. The private settlement deed or a trust deed executed by an individual stand on some footing as receipt executed by an individual or individuals or Anumati patra and it remains a private document even after registration. The plaintiff relied on Exh. P-l and urged it to be copy of settlement deed creating trust, even if trust as urged, its original was registered one but it was not a public document vide Ravindra N. Das v Santosh Kumar.
41. That as regards clause (f) of Section 65, it will be applicable in cases where the original is one, the certified copy of which is permitted under the Evidence Act or any other law. Sections 76 and 77 of the Evidence Act reveal that under these sections, the certified copies of public documents have been made permissible and admissible to prove the contents of public documents or the parts of public documents of which the copies they purport to be.
42. That as found earlier, the settlement deed of 1933 is and has been only private document and did not become public document, merely because of its having been registered, as after registration, as held by the Privy Council, the document (original) is returned and does not form part of public record, vide, Gopal Das case, supra, and as per Section 61(2) of the Registration Act.
43. The learned Counsel for appellant referred to Section 57(5) of the Registration Act and urged that the section permits filing of certified copies and make the certified copies issued under Section 57 of the Registration Act, to be admissible to prove the contents of original documents as such certified copy of settlement deed of 1933, Exh. P-1 was admissible as secondary evidence under Section 65(f) of the Evidence Act. He urged that the Court below erred in law in holding that the same was not admissible without proof of loss of the original or without original of Exh. P-1 being accounted for.
44. If a case for filing secondary evidence is established or sbown to be covered by clause (e) or (f), secondary evidence is admissible or permissible in the form of certified copy of such a document beyond doubt as held in the case of Krishna Kishore, referred to above by the Privy Council, hut the question is what Section 57 of Registration Act provides and whether it can be said to be a case covered under Section 65(f) of the Evidence Act.
45. Section 57 of the Registration Act, provides that registering office have to allow the inspection of certain books and indexes as well as to have to, or have been authorised to, give certified copies of the entries made in such books as are referred to in Section 57 of the Registration Act. Sub-section (11) of Section 57 provides that Book Nos. 1 and 2 and index relating to Book No. 1 shall be subject to payment fee payable at all times be open to inspection by any person applying for inspection. It further provides that subject to Section 62 of the Registration Act, all persons who apply for the supply of copies of entries contained in such books shall be given the copies of entries in such books.
45-A. Sub-sections (2) and (3) of Section 57 provides for copies of entries in Books 3 and 4 and indexes relating thereto to be given to person referred therein only or in circumstances specified therein i.e., in the sub-section concerned.
46. Sub-section (5) of Section 57 provides that all copies given under this section shall be signed and sealed by the registering officers and shall be admissible for the purpose of proving the contents of the original documents.
47. The entries made in Book No. 1 or Book No. 2 etc., are only entries of books. May it contain a copy of original document, i.e., copied in the book concerned but the said entry by itself is not the original document. The entry may be a copy, in register or book, from the original deed itself, which original deed is, as per Section 61(2) of Registration Act, returned to person presenting it. So the copy of entry which is given under Section 57 is not the copy from original deed itself but the copy from the copy of deed only. Sub-section (5) of Section 57 makes provision for copy from copy of document given under Section 57(1), (2) and (3), admissible only for limited purpose namely of proving the contents of the original document. Such a copy cannot be termed to be certified copy of the original document, but a copy of the entry or of the (copy) of the document. It may be a secondary evidence but not covered by clause (f) of Section 65 of the Evidence Act.
48. In the case of Karuppama v Kaland Swami, Madras High Court laid it down as under.-
“Section 57 of the Indian Registration Act deals with among other things, with the grant of certain certified copies and sub-section (5) lays down that all copies given under that section shall be signed and sealed by registration officer and shall be admissible for the purpose of proving the contents of the original documents. But the law is that a certified copy of what has been copied in the books of the Registration is admissible to prove the contents of the original document only when a case is made out for the introduction of secondary evidence i.e., by proof of loss of the original or where the original is withheld by a party in whose possession it is or is presumed to be”.
49. Similar view has been expressed in the case of Badhawa Ram v Akbar Ali, by Hon’ble Mr. Justice Tek Chank, as he then was, as well as by the Division Bench of Nagpur High Court in the case of Kashinath Shankrappa v New Akol Cotton Ginning and Pressing Company, and also in the case of Gopal Das, supra, by the Privy Council, referred to above. The Punjab and Haryana High Court in the case of Paras Singh v Parkash Kaur, as well as Rajasthan High Court in the case of Motilal v Sardar Mal, have construed Section 57 of Registration Act, in the context of Section 65 of the Evidence Act on the same lines and way.
50. In the case of P. Ram Reddy v Land Acquisition Officer, their Lordships of the Supreme Court dealing with Section 51-A of the Land Acquisition Act and Section 57 of the Registration Act has been pleased to lay down:
“Certified copies of a registered document under Registration Act, 1908, but for the above provision (Section 51-A of the Land Acquisition Act) could have been only secondary evidence which could have been accepted by the Court when primary evidence relating to original documents were shown to be unavailable.
51. The observations made in the case of Nani Bai v Gita Bai Kom Rama Gunge, referred by learned Counsel for appellant are not of any assistance to appellant i.e., plaintiff. The material observations reveal that it only lays down that “the Sale deeds themselves are primary evidence of interest sold. If those sale deeds which are said to be registered document, were not available for any reasons, certified copies thereof could be adduced as secondary evidence, but no foundation has been laid in the pleading for the reception of other evidence which must always be a very weak character in place of the registered document evidencing those transactions”.
The above marked portion clearly reveals that before leading secondary evidence, such as the certified copy thereof, the party concerned has to lay foundation and establish reason for non-production nor availability of original document.
52. In the present case, in my opinion as clauses (e) and (f) of Section 65 of the Evidence Act are not applicable therefore, in order to produce Exh. P-1, the certified copy of entry under Section 57 of the Registration Act, as secondary evidence the plaintiff-appellant had to make out case of foundation to lead secondary evidence, but as held earlier plaintiff-appellant has failed to lay the foundation therefor.”

Public Document Lost; Any secondary evidence becomes admissible

‘Only Secondary Evidence Admissible’ Does Not Apply

In Marwari Kumhar v. Bhagwanpuri Guru Ganeshpuri, AIR 2000 SC 2629; 2000-6 SCC 735it is held as under

“10. Thus it is to be seen that under sub-clause (c) of Section 65, where the original has been lost or destroyed, then secondary evidence of the contents of the document is admissible. Sub-clause (c) is independent of sub-clause (f). Secondary evidence can be led, even of a public document, if the conditions as laid down under sub-clause (c) are fulfilled. Thus if the original of the public document has been lost or destroyed then the secondary evidence can be given even of a public document. This is the law as has been laid down by this Court in Mst. Bibi Aisha and Others v. The Bihar Subai Sunni Majlis Avaqaf and Others , AIR 1969 SC 253. In this case a suit had been filed for setting aside a registered mokarrari lease deed and for restoration of possession of properties. The suit had been filed on behalf of a Waqf. The Original Waqf Deed was lost and an ordinary copy of the Waqf Deed was produced in evidence. The question was whether an ordinary copy was admissible in evidence and whether or not secondary evidence could be led of a public document. The Court held that under Section 65 clauses (a) and (c) secondary evidence was admissible. It is held that a case may fall both under clauses (a) or (c) and (f) in which case secondary evidence would be admissible. It was held that clauses (a) and (c) were independent of clause (f) and even an ordinary copy would, therefore, be admissible. As stated above the case that the original was no longer available in Court records and the certified copy was lost has not been disbelieved. Thus the ordinary copy of the earlier judgment was admissible in evidence and had been correctly marked as an exhibit by the trial Court.”

In Bibi Aisha v. Bihar Subai Sunni Majlis Avaqaf, AIR 1969 SC 253, it was held as under:

“Under Sec. 65(a) of the Evidence Act secondary evidence may be given of the existence, or contents of a document 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, and when after the notice mentioned in sec. 66, such person does not produce it. Where the case falls under s. 65(a) any secondary evidence of the contents of the document is admissible. In the present case the conditions of s. 65(a) were satisfied. The plain copy of the waqf was therefore admissible. On behalf of the appellant it was argued that cl. (f) of s. 65 was applicable and that as the certified copy of the deed dated August 20, 1827 was permitted by the Evidence Act to be given in evidence, a certified copy alone was admissible in evidence. There is no substance in this contention. If the case falls under clause (a) any secondary evidence of the document is admissible, though the case may also fall under clause (f). Clause (a) is not controlled by clause (f).
In the case of A Collision Between The Ava [(1879) I.L.R. 5 Cal. 568] a question arose as to whether secondary evidence could be given of the contents of a certificate granted by the Board of Trade. The loss of the document attracted cl. (c) of sec. 65 and the failure to produce it after notice attracted cl. (a) Cl. (f) of sec. 65 was also applicable. Wilson J. ruled that a certified copy need not be produced and any secondary evidence was admissible. We agree with this decision. Wilson J. said:
“By s. 65 in cases under cls. (a) and (c) any secondary evidence is admissible; in cases under cls. (e) and (f) only a certified copy. The present case falls under cl. (a) or (c) and also under (f). In such a case which rule applies ? I think the words, ‘In cases (a), (c) and (d) any secondary evidence is admissible,’ are too clear and too strong to be controlled by anything that follows, and that, therefore, in this case any secondary evidence might be received.”

In Jupudi Kesava Raos v. Pulavarthi Venkata Subbarao, AIR 1971 SC 1070, it was held, relying on Bibi Aisha v. Bihar Subai Sunni Majlis Avaqaf, AIR 1969 SC 253, that under Sec. 64 of the Evidence Act, a document must be proved by primary evidence. But, Sec. 65 of the Evidence Act allows secondary evidence as to the existence, condition or contents of a document in circumstances specified in Clauses (a) to (g).

In Chandreshwar Prasad Narain Singh v. Bisheshwar Pratab Narain Singh: AIR 1927 Patna 61 it was held as under:

“Mr. Sultan Ahmad, on behalf of the respondents, contended that the rule as to the production of any secondary evidence does not apply to the case of a public document, in which case, a certified copy of the document but no other kind of secondary evidence, is admissible. If this argument be well founded, then it is obvious that the Legislature has made no provision for cases in which the original is a record of a Court of justice, and, therefore, a public document, which has also been lost or destroyed. In my opinion, the rule laid down in Sec. 65 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.” (followed in: Bhola Prasad v. Nabi Rasul Mian2007-1 PLJR 752 – Pat)

From the above, it appears that the following observation in Bhola Prasad v. Nabi Rasul Mian, 2007-1 PLJR 752, is not correct.

“In a case of the present nature where the document produced is registered sale deed the case also gets covered by clause (f) of Sec. 65 under which when the original is a document of which a certified copy is permitted by the Evidence Act or any other law in force to be given in evidence, even a certified copy of the document, but no other kind of secondary evidence is admissible.”

Next Best Evidence Rule on Copy of a Sale Deed

Under the Rule of Best Evidence the law requires, production of the next best evidence if it is not possible to produce the best evidence. See the following:

G. Balamani v. Parimi Manga Devi, 2019-4 ALD 401; 2019-4 ALT 203; 2019-3 CivCC 590
Raghunath Ramnath Zolekar v. State of Maharashtra, 2013-1 Crimes(HC) 532
Biju Paul v. Nedungadi Bank Ltd. 2012-2 KerLT(SN) 113 (For creating equitable mortgage),
Balkar Singh v. State of Punjab, 2005 (1) RCR (Criminal) 576 : 2005 Cri LJ (NOC) 180 (the school record is the next best evidence in the absence of any entry in the office of Registrar of Births and Deaths.)
Jagdamba Tea Factory v. Parshotam Kishan, 2008-3 PunLR 388, 2008-3 RCR(CIVIL) 17 (Where no lease deed, the entries in the house-tax register, which was the next best evidence available, could very well be taken into consideration for determining the rate of rent.),
2008-1 RCR(RENT) 507 (Where there is no lease deed nor any receipt, the rate of rent could well be determined on the basis of house-tax register, which was the next best evidence available. Gurinder Singh v. Kundan Lal, 2005(1) RCR(Rent) 332 : 2005(2) CCC 128 was relied on where entries in the municipal house tax register was considered.)
Chiman Lal v. Datar Singh, 1998 CriLJ 267, 1997 (1) WLN 396.
M/s. MAVR Nataraja Nadar v. State Bank of India, 1993(1) LW 456 (in the absence of the original deed of transfer the next best evidence of the owner’s title to the property is a certified copy of that document).
Ananthakrishnan v. K. G. Rangasamy (Mad), 2020-4 CTC 411; 2020-1 LW 355 (quoted: M/s. MAVR Nataraja Nadar v. State Bank of India, 1993(1) LW 456)

In C. Assiamma v. State Bank of Mysore, 1992 -74 Com Cas 139, it is pointed out that, for the purposes of creating an equitable mortgage, the copy of a transfer-deed is not (ordinarily) a ‘document of title’, and that there may be cases where the original document is lost and there are no chances of that document being made use of for any purpose; and in such a circumstance the next best evidence of the owner’s title to the property would be a certified copy of that document.

Read Blog: Best Evidence Rule in Indian Law

No Petition Needed for Filing or Admitting Photocopy

Section 64 of the Evidence Act reads as under:

“64. Proof of documents by primary evidence: Documents must be proved by primary evidence except in the cases hereinafter mentioned.”

Our Apex Court held in Dhanpat v. Sheo Ram, (2020) 16 SCC 209, as under:

“20. There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed.”
Note: 1. Some courts in India have taken the stand that Dhanpat v. Sheo Ram applies only when ‘foundation’ is available on record to grant permission to adduce secondary evidence, and an application for leading secondary evidence is not required only if the ‘foundation’ is laid in the plaint or evidence. It appears that this approach is not legitimate for several (obvious) counts.
2. It will be a too pedantic approach to say that a document produced in civil cases after prescribed time for production (after settlement of issues, under Order VII Rule 14 (3) CPC), without leave of the court must be rejected, callously, for it is imperative to produce documents only with ‘leave of the court’ after the prescribed time. It is not the scheme of the procedural laws in India.

In Satyam Kumar Sah v. Narcotic Control Bureau, 2019 SCC OnLine Del 8409, it is pointed out that Section 65 does not contemplate filing of any application or seeking prior permission of the court for leading secondary evidence; and that merely because an application under Section 65, Indian Evidence Act was filed and allowed, would not ipso facto make secondary evidence admissible, which is otherwise inadmissible.

Loss of Original: It is incumbent upon the party producing the secondary evidence to prove the loss of original under Sec. 65 Clause (c). In a suit for specific performance, in Hira v. Smt. Gurbachan Kaur, 1988 (2) PLR 173, photocopy of the suit agreement alone was produced. After beginning evidence it was submitted that original was lost and application was filed seeking permission to adduce copy. Besides the delay in submitting loss of original, the plaintiff did not state when and under what circumstance the original was lost. In these circumstances the High Court found that the denial of permission to lead secondary evidence, by the trial court, was justifiable. (See also: Gurditta v. Balkar Singh, 1989 (1) PLR 418; Sobha Rani v. Ravikumar– AIR 1999 P&H 21).

In Raj Kumari v. Lal Chand, 1994 (1) Civil Court Cases 477, an issue was raised as to whether the applicant was entitled to secondary evidence. Therefore, it was held that the loss of the document was not required to be proved before trial, on the application under Section 65 Evidence Act.

Note: It appears that in a proper case, in its very peculiar facts, it may be justified in non-suiting the plaintiff, taking a preliminary issue on non-production of original, or insufficiency of grounds for non-production of original; but, it appears, it cannot be taken as a general rule.

UNREGISTERED DOCUMENTS – Effect of Marking Without Objection

Under section 49 of the Registration Act, if a document required to be registered is not registered, it is not admissible in evidence ; and such unregistered document can only be used as an evidence of collateral purpose.

With respect to Unregistered (Necessarily Registrable) Documents it is held by the Apex Court in K.B. Saha and Sons Private Limited v. Development Consultant Ltd, (2008) 8 SCC 564: AIR 2008 SC (Supp) 850, as under:

“34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to here-in-above, it is evident that :
A document required to be registered is not admissible into evidence under section 49 of the Registration Act.
Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to section 49 of the Registration Act. ….”

In the light of the Supreme Court decision in K.B. Saha and Sons Private Limited , it appears that the observation of the Karnataka High Court in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed, is not applicable to unregistered (compulsorily registrable) documents.

However, the Calcutta High Court in Dipak Kumar Singh v. Park Street Properties (P) Limited, AIR 2014 Cal 167, distinguished K.B. Saha & Sons Private Limited, (2008) 8 SCC 564, and other decisions saying that ‘the question of admissibility of a document, which had been admitted in evidence, was not taken up for consideration’ in those decisions. The High Court relied on Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655 (question as to admissibility on the ground that it has not been stamped), which held that once a document had been marked as an exhibit in a case and the trial had proceeded all along on the footing that the document was an exhibit in the case and had been used by the parties in examination and cross-examination of their witnesses, it was not open either to the trial court itself or to a court of appeal or revision to go behind that order.

The other decisions referred to and distinguished in Dipak Kumar Singh v. Park Street Properties (P) Limited (supra) are the following:
Ram Kumar Das v. Jagdish Chandra Deo, Dhabal Deb: AIR 1952 SC 23,
Satish Chand Makhan v. Govardhan Das Byas: (1984) 1 SCC 369,
Anthony v. K.C. Ittoop: (2000) 6 SCC 394,
Surya Kumar Manji v. Trilochan Nath: AIR 1955 Cal 495,
Kunju Kesavan v. M.M. Philip: AIR 1964 SC 164,
Prasanta Ghosh v. Pushkar Kumar Ash: 2006 (2) CHN 277.

INSUFFICIENTLY STAMPED DOCUMENTS

Two forceful propositions stood paradoxical

The following forceful propositions stood paradoxical and incongruent to each other-

1. Section 33 of the Stamp Act (both Indian Stamp Act and State Stamp Act) casts a duty on every authority including the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. There is a duty upon every Judge, under Sec. 35 of the Indian Stamp Act (Sec. 34 of the State Act), not to admit a document that is not duly stamped (even if no objection raised to mark it).
2. The court should not exclude an insufficiently stamped (or unstamped) deed once marked without objection under Sec. 36 of the Indian Stamp Act (Sec. 35 of the State Act).
Note: This incongruity is pointed out by this author in the article “Law on Insufficiently Stamped Documents – Not to Admit Unstamped Documents Vs. Once Admitted, Cannot Question” (Published in 2023(1) KerLT, Journal Section).

The Law Applied in India – Once Admitted, Always Stand Admitted

The law applied in India, hitherto, invoking Sec. 35 of the (State) Act was the following –

Once an unstamped or insufficiently stamped instrument has been admitted in evidence, (even if mechanically or inadvertently), its admissibility cannot be contested at any stage of the proceedings.

Sec. 35 of the State Act (Sec. 36 of the Indian Stamp Act) reads as under:

“35. Admission of instrument where not to be questioned– Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.”

In Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655: 1962-2 SCR 333, it was observed as under:

“4…. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the court. The court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. … Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 of the (Indian) Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial court itself or to a court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction.”

In Ram Rattan v. Bajrang Lal, (1978) 3 SCC 236, it was held as under:

“6. When the document was tendered in evidence by the plaintiff while in witness box, objection having been raised by the defendants that the document was inadmissible in evidence as it was not duly stamped and for want of registration, it was obligatory upon the learned trial Judge to apply his mind to the objection raised and to decide the objects in accordance with law. …. If after applying mind to the rival contentions the trial court admits a document in evidence, Section 36 of the (Indian) Stamp Act would come into play and such admission cannot be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The court, and of necessity it would be trial court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case and where a document has been inadvertently admitted without the court applying its mind as to the question of admissibility, the instrument could not be said to have been admitted in evidence with a view to attracting Section 36 [see Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655] . The endorsement made by the learned trial Judge that ‘Objected, allowed subject to objection’, clearly indicates that when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situation Section 36 would not be attracted.”
Note: In Ram Rattan v. Bajrang Lal (supra) ‘objection’ as regards inadmissibility had been raised “as it was not duly stamped”; and this decision was read by our Courts so as to find it relevant only in cases where there was ‘objection’ by the ‘other side’.
See: Shyamal Kumar Roy v. Sushil Kumar Agarwal (S.B. Sinha & Dalveer Bhandari, JJ.), AIR 2007 SC 637; 2006-11 SCC 331 (It was held after referring Ram Rattan v. Bajrang Lal: “If no objection had been made by Appellant herein in regard to the admissibility of the said document, he, at a later stage, cannot be permitted to turn round and contend that the said document is inadmissible in evidence. Appellant having consented to the document being marked as an exhibit has lost his right to reopen the question. … The question of judicial determination of the matter would arise provided an objection is taken when document is tendered in evidence and before it is marked as an exhibit in the case.)

Unless “Judicial Determination”, Sec. 35 is Not Attracted

This long-stood concept, as regards unstamped or insufficiently stamped instrument, is relooked in the recent decision G. M. Shahul Hameed v. Jayanthi R. Hegde (Dipankar Datta, Pankaj Mithal, JJ.), AIR 2024 SC 3339.

It is held that sheer technicalities should not triumph over the legislative intent and the fiscal interests of the State. It is held as under:

“10. Despite the GPA having been admitted in evidence and marked as an exhibit without objection from the side of the appellant, we propose to hold for the reasons to follow that the Trial Court did have the authority to revisit and recall the process of admission and marking of the instrument, not in the sense of exercising a power of review under section 114 read with Order XLVII, CPC but in exercise of its inherent power saved by section 151 thereof, and that the other remedy made available by the 1957 Act was not required to be pursued by the appellant to fasten the respondent with the liability to pay the deficit duty and penalty.”
“12. Read in isolation, a literal interpretation of section 35 of the 1957 Act seems to make the position in law clear that once an instrument has been admitted in evidence, then its admissibility cannot be contested at any stage of the proceedings on the ground of it not being duly stamped. A fortiori, it would follow that any objection pertaining to the instrument’s insufficient stamping must be raised prior to its admission.
13. However, section 35 of the 1957 Act is not the only relevant section. It is preceded by sections 33 and 34 and all such sections are part of Chapter IV, tiled “Instruments Not Duly Stamped”. Certain obligations are cast by section 33 on persons/officials named therein. Should the presiding officer of the court find the instrument to be chargeable with duty but it is either not stamped or is insufficiently stamped, he is bound by section 33 to impound the same. Section 34 places a fetter on the court’s authority to admit an instrument which, though chargeable with duty, is not duly stamped. The statutory mandate is that no such instrument shall be admitted in evidence unless it is duly stamped.
14. The presiding officer of a court being authorised in law to receive an instrument in evidence, is bound to give effect to the mandate of sections 33 and 34 and retains the authority to impound an instrument even in the absence of any objection from any party to the proceedings. Such an absence of any objection would not clothe the presiding officer of the court with power to mechanically admit a document that is tendered for admission in evidence. The same limitation would apply even in case of an objection regarding admissibility of an instrument, owing to its insufficient stamping, being raised before a court of law. Irrespective of whether objection is raised or not, the question of admissibility has to be decided according to law. The presiding officer of a court when confronted with the question of admitting an instrument chargeable with duty but which is either not stamped or is insufficiently stamped ought to judicially determine it. Application of judicial mind is a sine qua non having regard to the express language of sections 33 and 34 and interpretation of pari materia provisions in the Indian Stamp Act, 1899 [1899 Act, hereafter] by this Court. However, once a decision on the objection is rendered – be it right or wrong – section 35 would kick in to bar any question being raised as to admissibility of the instrument on the ground that it is not duly stamped at any stage of the proceedings and the party aggrieved by alleged improper admission has to work out its remedy as provided by section 58 of the 1957 Act.
18. On the face of such an order, it does not leave any scope for doubt that on the date the GPA was admitted in evidence and marked as an exhibit, the Trial Court did not deliberate on its admissibility, much less applied its judicial mind, resulting in an absence of judicial determination. In the absence of a ‘decision’ on the question of admissibility or, in other words, the Trial Court not having ‘decided’ whether the GPA was sufficiently stamped, section 35 of the 1957 Act cannot be called in aid by the respondent. For section 35 to come into operation, the instrument must have been “admitted in evidence” upon a judicial determination. The words “judicial determination” have to be read into section 35. Once there is such a determination, whether the determination is right or wrong cannot be examined except in the manner ordained by section 35. However, in a case of “no judicial determination”, section 35 is not attracted.
“21. We may not turn a blind eye to the fact that the revenue would stand the risk of suffering huge loss if the courts fail to discharge the duty placed on it per provisions like section 33 of the 1957 Act. Such provision has been inserted in the statute with a definite purpose. The legislature has reposed responsibility on the courts and trusted them to ensure that requisite stamp duty, along with penalty, is duly paid if an unstamped or insufficiently stamped instrument is placed before it for admission in support of the case of a party. It is incumbent upon the courts to uphold the sanctity of the legal framework governing stamp duty, as the same are crucial for the authenticity and enforceability of instruments. Allowing an instrument with insufficient stamp duty to pass unchallenged, merely due to technicalities, would undermine the legislative intent and the fiscal interests of the state. The courts ought to ensure that compliance with all substantive and procedural requirements of a statute akin to the 1957 Act are adhered to by the interested parties. This duty of the court is paramount, and any deviation would set a detrimental precedent, eroding the integrity of the legal system. Thus, the court must vigilantly prevent any circumvention of these legal obligations, ensuring due compliance and strict adherence for upholding the rule of law.”

Outcome – G. M. Shahul Hameed v. Jayanthi R. Hegde

Following are the outcome of the decision, G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339.

To attract the bar to question the marking of the document under Section 35 (State Act), the instrument must have been “admitted in evidence” upon a ‘judicial determination‘, “irrespective of whether objection is raised or not“.
The words “judicial determination” have to be read into Section 35.
If “no judicial determination” (or if the document is mechanically or inadvertently marked), Section 35 is not attracted.
In proper cases (such as the senior counsel was not present when the document was marked) the Trial Courts have the authority to revisit and recall the process of admission in exercise of its inherent power saved by section 151 CPC.
Once there is such a judicial determination, whether it is right

Prior to G. M. Shahul Hameed v. Jayanthi R. Hegde (supra) the determinative point considered in various court decisions (as regards the ‘bar to question the marking of the document’) was “objection” from the ‘opposite party’. But, now, for the first time, by virtue of this decision (G. M. Shahul Hameed v. Jayanthi R. Hegde) what is decisive is ‘judicial determination‘, “irrespective of whether objection is raised or not“.

No Objection to Marking (Unstamped Document); If Court sees Deficiency, it should bring notice of it to Counsel

In T.C. Lakshamanan v. Vanaja, ILR 2011-3 (Ker) 228; 2011-3 KHC 86; 2011-3 KLT 347, it is pointed out by the Kerala High Court as under:

“There was no case for the respondent that before marking Ext.A1 any objection was raised as to the admissibility of Ext.A1. Since the affidavit was filed in lieu of chief-examination, through which documents were sought to be received in evidence, before starting cross examination the trial court has to record that an affidavit has been filed in lieu of chief examination and that such and such documents have been marked. It is not to be done mechanically. The Court has to apply its mind while marking the documents to ensure that those documents have been properly admitted in evidence. Simply because the counsel appearing for the other side did not raise any objection the Court is not absolved of its duty to see whether the marking of the documents was done correctly and whether any inadmissible document was sought to be admitted in evidence. If the Court finds that any inadmissible document, especially a document which cannot be admitted in evidence as it is unstamped or insufficiently stamped, is sought to be admitted, it should be brought to the notice of the counsel appearing for the parties and an order should be passed with regard to the same. It is not a case where the documents were tentatively marked, subject to objection regarding the admissibility and the ruling as to the admissibility of the same happened to be deferred, as it warranted a detailed argument. The Apex Court in the decision in 2000 (1) SC 1158 (Bipin Shantilal Panchal v. State of Gujarat) has held that such a procedure can be resorted to. Therefore, though document can be admitted tentatively reserving ruling on the admissibility to a later stage, in the case on hand no such objection was raised; on the other hand, it is argued by the learned counsel for the respondent that questions were put to PW1 with regard to the relevancy and other aspects of that document treating that document as having been properly admitted.”

Unstamped document cannot be looked at even for any collateral purpose

Privy Council in Ram Rattan v. Parma Nath, AIR 1946 PC 51, held that section 35 of the Indian Stamp Act prohibited the unstamped (or inadequately stamped) document from being looked at even for any collateral purpose, as it enacts that no instrument chargeable with duty shall be admitted in evidence ‘for any purpose’. The unstamped (or inadequately stamped) document becomes admissible on payment of penalty under Stamp Act or on payment of the stamp duty after impounding.

In Omprakash v. Laxminarayan, (2014) 1 SCC 618, the Apex Court observed as under:

“From a plain reading of the aforesaid provision (S. 35 of the Stamp Act), it is evident that an authority to receive evidence shall not admit any instrument unless it is duly stamped. An instrument not duly stamped shall be admitted in evidence on payment of the duty with which the same is chargeable or in the case of an instrument insufficiently stamped, of the amount required to make up such duty together with penalty. As we have observed earlier, the deed of agreement having been insufficiently stamped, the same was inadmissible in evidence. The court being an authority to receive a document in evidence to give effect thereto, the agreement to sell with possession is an instrument which requires payment of the stamp duty applicable to a deed of conveyance. Duty as required, has not been paid and, hence, the trial court rightly held the same to be inadmissible in evidence.”

The Apex Court upheld the observation of the MP High Court in Writ Petition No. 6464 of 2008, overruling the impugned judgment (Laxminarayan v. Omprakash 2008 (2) MPLJ 416). The MP High Court had observed as under:

“To put the record straight, the correctness of the impugned judgment (Laxminarayan & Ors. v. Omprakash & Ors., 2008 (2) MPLJ 416) came up for consideration before a Division Bench of the High Court itself in Writ Petition No. 6464 of 2008 (Man Singh (deceased) through Legal Representatives Smt. Sumranbai & Ors. v. Rameshwar) and same has been overruled by judgment dated January 22, 2010. The High Court observed as follows:
- “8. A document would be admissible on basis of the recitals made in the document and not on basis of the pleadings raised by the parties. In the matter of Laxminarayan (supra), the learned Single Judge with due respect to his authority we don’t think that he did look into the legal position but it appears that he was simply swayed away by the argument that as the defendant was denying the delivery of possession, the endorsement/recital in the document lost all its effect and efficacy.
- 9. It would be trite to say that if in a document certain recitals are made then the Court would decide the admissibility of the document on the strength of such recitals and not otherwise. In a given case, if there is an absolute unregistered sale deed and the parties say that the same is not required to be registered then we don’t think that the Court would be entitled to admit the document because simply the parties say so. The jurisdiction of the Court flows from Sections 33, 35 and 38 of the Indian Stamp Act and the Court has to decide the question of admissibility. With all humility at our command we over-rule the judgment in the matter of Laxminarayan (supra).”
We respectfully agree with the conclusion of the High Court (Writ Petition No. 6464 of 2008) in this regard.
In view of what we have observed above, the order of the High Court (Laxminarayan v. Omprakash 2008 (2) MPLJ 416) is unsustainable and cannot be allowed to stand.”

Unstamped or Insufficiently Stamped Pro-note

Unstamped or insufficiently stamped promissory note cannot be marked in evidence. The weight of authority is on the side that says it is incurable. Hence no secondary evidence can also be lead on the same. It cannot be used for collateral purpose also. But the creditor can prosecute a suit upon ‘original consideration’.

Admissibility, one thing; and Probative Value, quite another

In State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, it is observed:

“Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”

If there is a dispute regarding age, the Supreme Court, in State of Punjab Vs. Mohinder Singh, AIR 2005 SC 1868, held that the date of birth available in the School Admission Register has more probative value than the horoscope. The probative value of FIR, Scene-Mahazar, Post-Mortem Report, photocopy of a Registered Deed etc., by itself, will be lesser. In such cases the court can refrain from acting upon such documents until substantive or regular evidence is offered, by examining the proper witness.

In Om Prakash Vs. State of Punjab, 1993(2) CLR 395, and Jora Singh Vs. State of Punjab, 1984(2) Crimes 837, it has been held that an entry in the school leaving certificate regarding date of birth of a student is not a conclusive proof or high ‘probity evidence’ because it is a matter of common knowledge that the date of birth given at the time of the admission of a boy or girl in a school is seldom correct and more often than not the age given is less than the actual age of the child. (See also: C. Doddanarayana Reddy Vs. C. Jayarama Reddy: AIR 2020 SC 1912; Commissioner of Central Excise And Service Tax v. M/S. Sanjivani Non-Ferrous Trading: AIR 2019 SC 203.)

Substantive Evidence and Evidence for Corroboration & for Refreshing Memory.

A Post-Mortem Report (Ganpat Raoji Suryavanshi v. State of Maharashtra, 1980 Cr. L.J. 853), Wound Certificate or Commission Report in a former case is not a substantive evidence. Doctor or Commissioner can refresh memory (Sec. 159, Evid. Act) with reference to the document. Similarly, mere marking of a Scene Mahazar, without examining the Investigating Officer who prepared it, will not render substantive aid to the prosecution case.

In Rameshwar Dayal v. State of U.P., AIR 1978 SC 1558, referring to Inquest Report, Site Plans etc., it is held by the Supreme Court, as follows:

“That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under Section 60 of the Evidence Act whereas the other part which is based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under Section 162 CrPC except for the limited purpose mentioned in that section.”

[See also: Munshi Prasad Vs. State of Bihar,(2002) 1SCC 351; State of Haryana v. Ram Singh, (2002) 2SCC 426; Vijay Paul v. State of Delhi: 2015 SC 1495; Mohanan v. State of Kerala: 2011(4) KLT 59.]

A ‘Certificate’ or ‘Expert Opinion’ is NOT Per Se Admissible

A certificate, in most cases, is an opinion, and prepared on the basis of other documents or evidences. In such cases, when it is an assumption or inference, it by itself, is not admissible, as it will only be, at the most, a secondary evidence. A Wound Certificate is not a substantive evidence. It has to be proved by a competent witness. Unless presumption can be invoked under Clause (e) of Sec. 114 Evidence Act (that judicial and official acts have been regularly performed), no certificate can be taken as proved unless its contents are proved in a formal manner.

This is why Order XXVI rule 10 CPC specifically says – Commission Report shall ‘form part of the record’.

Unless the expert is examined in the court, his opinion cannot be relied on. (State of Maharashtra vs. Damu, AIR 2000 SC 1691). Opinion or report of a finger print expert is not a substantive evidence. Such evidence can only be used to corroborate some items of substantive evidence which are otherwise on record (Musheer Khan Vs. State of M.P, 2019-7 SCC 781; AIR. 2010 SC 3762).

Our Apex Court held in Dharmarajan v. Valliammal, 2008 (2) SCC 741, that ‘a certificate issued by the Tahsildar cannot be relied on without examining the Tahsildar who issued the same’. It is referred to in Pankajakshan Nair v. Shylaja, ILR 2017-1 Ker 951.

What is ‘Certificate’, in Law

A certificate, in most cases, is an opinion, and prepared on the basis of other documents or evidences. In such cases, when it is an assumption or inference, it by itself, is not admissible, as it will only be, at the most, a secondary evidence. A Wound Certificate is not a substantive evidence. It has to be proved by a competent witness. If presumption cannot be invoked under Clause (e) of Sec. 114 Evidence Act (that judicial and official acts have been regularly performed), no certificate or report can be taken as proved unless its contents are proved in a formal manner. (This is why Order XXVI rule 10 CPC specifically says – Commission Report shall ‘form part of the record’.)

Documents used for Contradicting

Credit of a witness can be impeached under Sec. 155 (3) of the Evidence Act with reference to his previous statements. Sec. 145 is the provision to cross examine a witness with regard to his previous writing. Sec. 145 reads as under:

“145. Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

Documents used for Corroboration

Courts adjudicate the issues before it based on substantive evidence. In several cases it may be unusual that no direct evidence comes forth; for example, sexual offences, conspiracy, etc. In some cases certain corroborative evidence, to the already placed substantive evidence, may assure confidence to the minds of judges. Section 156 of the Evidence Act lays down that such testimonies can be brought into evidence. It is beyond doubt that such an evidence should also be an admissible one.

Section 156 of the Evidence Act reads as under:

“156. Questions tending to corroborate evidence of relevant fact, admissible.
When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies.
Illustration A, an accomplice, gives an account of a robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed. Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.”

Conclusion

It is definite: it is not at all proper for the court to vociferously thwart the copy of a document (secondary evidence) totally disregarding the following rights conferred by the Evidence Act –

(i) ‘admission’ is a mode of proof, inasmuch as ‘facts admitted need not be proved’ (Sec. 58, Evidence Act); and
(ii) Sec. 136, Evidence Act permits to use a fact before proving it formally on “the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking”.

It is equally important –

(i) the court has jurisdiction to require the party concerned to prove a document in spite of marking it (under Sec. 58 of Evidence Act, O. XII, r. 2A Proviso, CPC and Sec. 294 of the CrPC); and
(ii) evaluation of the probative value of evidence (for the adjudicatory function) is the prerogative of the court.

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First view Proof (Contents) stands established. It cannot be questioned afterwards. Truth also: See: Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1985-2 GujLR 1315, 1986 ACJ 616; 1985-2 GujLR 1315.	RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548. Neeraj Dutta v. State (Govt. of Delhi) [2023] 4 SCC 731 [If no objection as to mode of proof (secondary evidence) when marked, no such objection could be allowed to be raised at any later stage.]
Second View Even if no objection, it does not dispense with proof (as to, both, existence of the document and its truth). In such a case the document will not be taken as proved. (Note: It may not be legitimate to apply this principle literatim)	LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Domestic enquiry report); H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 (Copy of a power of attorney alone was shown to the respondent during cross-examination and he admitted his signature thereon only, and not its contents); Mal Singhvi v. Anand Purohith: 1988 (Supp) SCC 604 (date of birth).
Third view If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth.	See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745; Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085.
Fourth view Admission of contents, and dispenses with proof and truth; but its probative value will be a matter for appreciation by court.	See: State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Admission and probative value – different); Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; *Kaliya v. State of MP*: 2013-10 SCC 758; H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196.
Fifth view Admission of contents, and dispenses with proof and truth; but Court should require (in proper cases) the party producing the document to adduce proper evidence, and to cure formal defects, invoking – • Sec. 165 of Evidence Act • Sec. 58 of Evidence Act • O. XII, r. 2A Proviso, CPC and • Sec. 294 of the CrPC.	See: Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511; Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740; KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015 SC 3796.

Can the Court Refuse to Mark a (Relevant and Admissible) Document, for (i) there is No Formal Proof or (ii) it is a Photocopy?

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