Contents of a Document are to be Proved in Court by Producing Original or Secondary Evidence

Jojy George Koduvath

Also Read: Oral Evidence on Contents of Document, Irrelevant

Abstract.

1. The contents of a document cannot be proved by oral evidence. The document itself must be produced. (Sections 61 and 62 of the Evidence Act).

2. Secondary evidence can be given if permitted under Sections 65 of the Evidence Act, read with Section 63.

3. Section 91 expressly bars oral evidence to prove the terms of a contract, disposition of property, etc., by oral evidence if they are reduced to writing.

4. If the original document is not produced, right to adduce Secondary Evidence is not automatic. Loss, non-availability, etc., are to be proved under Sec. 65; and no oral statement about its contents is inadmissible. Secondary evidence of a document’s contents cannot be admitted unless the non-production of the original is first accounted for.

5. Withholding the best evidence attracts adverse inference. When a party relies on a document but does not produce it, the Court must presume it would have gone against that party. A party in possession of the best evidence must produce it; otherwise, the court is entitled to draw ‘adverse inference’.

6. No amount of oral evidence can substitute documentary evidence, where the law requires the document itself to be produced.

7. A document which is not proved (even if produced) in accordance with law cannot be relied upon by the court for deciding the rights of the parties.

8. Documents which are not proved (even if produced) in accordance with the law cannot be taken into consideration.

PRODUCTION, ADMISSIBILITY & PROOF OF DOCUMENTS

A document to be used in court has to pass through three steps. They are:

Production of documents in court
Admittance and exhibition
Proof (formal proof and truth of contents).

Modes of Proof of Documents

Modes of Proof of Documents (as to, both, ‘formal proof’ and ‘truth of the contents’) include the following:

Admission of the person who wrote or signed the document (Sec. 17, 21, 58, 67, 70).
Evidence of a person in whose presence the document was signed or written – ocular evidence (Sec. 59).
An attesting witness (Sec. 59).
Opinion of a person who is acquainted with the writing of the person who signed or wrote (Sec. 47).
Admission made by the person who signed or wrote the document made in judicial proceedings (Sec. 32, 33).
Evidence of a handwriting expert-opinion evidence/scientific evidence (Sec.45).
Evidence of a person who in routine has been receiving the document; or a document signed by such a person in the ordinary course of his business or official duty, though he may have never seen the author signing the document (Sec. 32, 34, 35 or 114).
Invoking (specific) presumptions under Sec. 79 to 90A.
Presumptions (general) under Sec. 114.
Circumstantial evidence: on probability or inferences (Sec. 114).
Court-comparison (Sec. 73).
Facts judicially noticeable (Sec. 56 and 57).
A fact of common-knowledge. (It does not require proof. See: Union Of India Vs. Virendra Bharti: 2011-2 ACC 886, 2010 ACJ 2353; Rakhal Chakraborty Vs. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
Internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857)

Rule of Best Evidence

These Sections of the Evidence Act project the ‘rule of best evidence’ and it directs that the contents of the document are to be proved by the original document itself, unless secondary evidence is provided under Sec. 65. (See: Bimla Rohal v. Usha, 2002-2 HLJ 745; 2002-2 Shim LC 341)

Documentary Evidence becomes meaningless if oral evidence Allowed

In Bhima Tima Dhotre v. The Pioneer Chemical Co. (1968) 70 Bom LR 683, it is observed as under:

“Documentary evidence becomes meaningless if the writer has to be called in every case to give oral evidence of its contents. If that were the position, it would mean that, in the ultimate analysis, all evidence must be oral and that oral evidence would virtually be the only kind of evidence recognised by law. That, however, is not the position under the Evidence Act. … Section 59 of the said Act enacts that all facts, except the “contents” of documents, may be proved by oral evidence. This provision would clearly indicate that to prove the contents of adocument by means of oral evidence would be a violation of that section.”

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The contents of a document are to be proved by producing it

To prove the contents of a document, it must have been produced before the court.

Sections 61 & 62 of the Evidence Act require proof of the contents of a document by the production of the document itself (or its secondary evidence).

If the document is not produced, its contents are legally non-existent for the Court. Following are the well-accepted principles in this regard:

Oral evidence cannot substitute documentary proof.
Court cannot decide rights on “assumed” contents

Principles of Law – in a Nutshell

The Principles of Law in this regard can be discerned from the following decisions of our Apex Court:

1. It is held in Roop Kumar v. Mohan Thedani, (2003) 6 SCC 595, that Sections 91 and 92 of the Evidence Act bar amendment, variation, etc. of a document; oral variations—whether by the party or the opposite side—are barred. The Court laid down as under:

“Wherever written instruments are appointed, either by the requirement of law, or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them.”(Quoted in: Cox and Kings Ltd. v. SAP India Pvt. Ltd., 2024-4 SCC 1; V. Anantha Raju v. T. M. Narasimhan, AIR 2021 SC 5342)
“The grounds of exclusion of extrinsic evidence are (i) to admit inferior evidence when law requires superior would amount to nullifying the law, (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.” (Quoted in Placido Francisco Pinto v. Jose Francisco Pinto, 2021-10 SCR 676; V Anantha Raju v. T M Narasimhan, AIR 2021 SC 5342)

2. In Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413, para 5, it is held that in a case where one party withholds a document, the court takes an adverse inference under Section 114(g). The Court said as under:

“Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue..”

3. The Constitution Bench 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:

“47. 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.”
“48. ……. 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.”

Contents of a Document are to be Proved in Court by Producing Original or Secondary Evidence

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