Photocopy and Scanning

whether       Photocopy/ Xerox copy      can       be    treated       as     Original??    IS     there    any       case   laws   of   the      APEX   COURT      or     any     HIGH   COURTS    of     INDIA???    

Mr sanatkumar you are eye specialist and rules for your science also applies to law. The other party has also rights. So you have to prove that the copy being submitted is true copy of the original. Many advocates friends do not use this vital point and many cases can be demolished on this small point only.

For curious people I inivte you to join me at Hyderabad where we have taken this point and made complaint as accused.

And for sanatkumar for eye treament you treat the eye which has problem , will you treat other eye so that the problem eye can be cured. Same is here., you have to prove beyond doubt that this the real copy the original nortice sent.

Excellent query posted by Assumi! Though learned experts are likely to come up with diverse responses to this query, it highlights the poor legislative drafting that has crept into the Evidence Act by way of amendment, especially S. 65-B. As regards the query, I am of the view that photocopying and scanning tend to fall within the purview of 65-B. I hasten to add that the provisions of S. 65-B should be read in conjunction with S. 65.

No sir, not at all.

You have to prove that it is the copy of the original which was sent.

And whatever way you draft the law this problem will come.

And with due respect of wisdom of other friends this provisions is working since British days.

Dear Sashikumar Sir, I got your point. Yes, it was existing since the British Days, and I also fortunately found the classic observations of  Supreme Court by Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA. Thank you for the feed back.

I am glad advocate dear N K assumi that now you are speaking real law.

Please post the citation quoted by you for benefit of other friends or give its ref.

Thanks.

SMT. J. YASHODA V. SMT. K. SHOBHA RANI [2007] RD-SC 429 (19 April 2007)

Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

(Arising out of S.L.P. (C) No.12625 of 2005) Dr. ARIJIT PASAYAT, J.

Leave granted.

Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Andhra Pradesh High Court allowing the civil revision petition filed. Challenge in the said petition was to the order dated 3.11.2003 in OS No. 30 of 1999 on the file of learned First Additional Chief Judge, City Civil Court, Secunderabad wherein document Exh. B-1 to B-8 were marked and taken as secondary evidence. The challenge in the civil revision was that the aforesaid documents could not have been marked and taken as secondary evidence since they are photo copies.

Learned Single Judge held that the documents which were sought to be received and marked as secondary evidence are photo copies. It was noted that it may be a fact that the original of the documents are not available with the parties but at the same time the requirement of Section 63 of the Indian Evidence Act, 1872 (in short the 'Act') is that a document can be received as an evidence under the head of secondary evidence only when the copies made from or compared with the original are certified copies or such other documents as enumerated in the above section. The High Court found the photo copies can not be received as secondary evidence in terms of Section 63 of the Act and they ought not to have been received as secondary evidence. Since the documents in question were admittedly photo copies, there was no possibility of the documents being compared with the originals. Accordingly the Civil Revision was allowed.

Learned counsel for the appellant submitted that a rigid view has been taken by the High Court. The High Court could not have ignored the mandatory requirements as contemplated under Section 63 of the Act more specifically when the Section provides that when the copies made from the evidence can be adduced as secondary evidence. It was further submitted that the mandatory prescripttions in Section 65(a) of the Act have been lost sight of.

Learned counsel for the respondent on the other hand supported the judgment of the High Court stating that the requirement of Section 65(a) have not been fulfilled in this case and the High Court rightly held that the documents could not have been accepted as secondary evidence.

In order to consider rival submissions it is necessary to take note of Sections 63 and 65 (a). Sections 63 and 65(a) reads as follows:

"63 : Secondary evidence  Secondary evidence means and includes  (1) certified copies given under the provisions hereinafter contained;

(2) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy and copies compared with such copies;

(3) copies made from or compared with the original;

(4) counterparts of documents as against the parties who did not execute them;

(5) oral accounts of the contents of a document given by some person who has himself seen it.

65. Cases in which secondary evidence relating to documents may be given  Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:- (a) 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 or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it."

Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents.

Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence.

The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. 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. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned.

The conditions laid down in the said Section 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. In Ashok Dulichand v.

Madahavlal Dube and Another [1975(4) SCC 664], it was inter alia held as follows:

"After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it.

Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses.

In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscriptt of which, according to the appellant, he had filed Photostat copy. Prayer was also made by the appellant that in case respondent no. 1 denied that the said manuscriptt had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the Photostat copy had been filed by the appellant was in the possession of Respondent No. 1.

There was also no other material on the record to indicate the original document was in the possession of respondent no.1. The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the Photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court."

The admitted facts in the present case are that the original was with one P. Srinibas Rao. Only when conditions of Section prescribed in Section 65 are satisfied, documents can be admitted as secondary evidence. In the instant case clause (a) of Section 65 has not been satisfied. Therefore, the High Court's order does not suffer from any infirmity to warrant interference. The appeal fails and is dismissed but in the circumstances without any order as to costs.

But Sir.Sashikumar, there is some substance in the comments given by Sir.S.Bharath, regarding section 65B and I also feel that there are some grey area in the said section and either the problem is created by the Legislative drafting or we are failing to grasp the spirit or the kernel of the said section 65B and hope the same would be clarified in the near future through the LCI members.

Dear sir, the citation you have produced clearly states every thing. No gray area.

The evidence act is working fine since last more than 140 years , no problem.

Just imagine the other party against you has produced a document as secondary evidence which is doctored what you will do. So the safeguard has been provided in the law that it should have relveance with the original than only it can be admissible as evidence.

Just look to the this week s news . A person like Kalmadi who is handling multy thousand crores for for commonwealth games , doctored a email that too from a foreign ministry source.

There is no gray area sir, every thing is crystal clear. If you want to submit a scanned or photo copy as secondary evidence you have to link it with original according to condions prescribed.

And if you put these provisions in real perspective than on the basis of this alone you can demolish any NI 138 case. You can refer to me any NI 138 case on behalf of  any accused ( except against public instituttions since it is public money ) and I will show you how to demolish the claim.

Well done , there are rare querries like this on this site.

There appears to be a mistaken understanding of the spirit of my response. I am a strong votary and admirer of the Evidence Act and Fitzgerald, who drafted the Act. It is such a masterpiece of legislative drafting that no person could dare to tinker it nor to challenge the constitutional validity of any of its provisions [with the exception of just one case]. Like a head of a large joint family who takes care of every member of the family, the Evidence Act has been taking care of justice administration for one and a half centuries.

In this context I expressed my anxiety about the poor "tinkering" by inserting S. 65B but members also need to note that I had stated that this is to be read in conjunction with S. 65, meaning the provisions of 65 cannot be given a go by.

As can be seen from the text posted under the citation, there is no reference to S. 65-B at all. Obviously, the attention of the Supreme Court was not drawn to the provisions of S. 65-B. All that they have discussed are about the provisions of Sections 63, 65 [a] to [g] and a little of 66. Now please go back to the original posting of Assumi, he has posted the query with specific reference to S. 65-B [and not any of the subsections of S. 65] inserted by the Information Technology Act, 2000. I called it poor tinkering because of the apparent conflict between the provisions of S. 65-B, particularly that of S. 65-B [1] as against the time-tested provisions of S. 65 [a] to [g].

Do you mean to say the even no attention is drawn the SC is ignorant of the evidence law when just all the sections are discussed threadbare in the above citation.