Sunday 4 January 2015

How to prove original of public document in evidence?


The question of proof of a public document came up before Bombay
High Court in C.H. Shah v. S.S. Malpathak & Ors., AIR 1973 Bom. 14,
where it was held as under:-
“4....... In all cases of secondary evidence under Section 65 read with
Section 63 of the Evidence Act when a copy or an oral account of a
document is admitted as secondary evidence, the execution of the original is
not required to be proved but if the original itself is sought to be tendered it
must be duly proved and there is no reason for applying a different rule to
public documents. Secondly, in the case of a certified copy, before a
presumption of its genuineness can be raised under Section 79, as laid down
by the Supreme Court in Bhinka's case already referred to above it must be
shown that the certified copy was executed substantially in the form and in
the manner provided by law. There would, therefore, be a check or safeguard
in so far as the officer certifying it in the manner required by law would have
to satisfy himself in regard to the authenticity of the original and in regard to
the accuracy of the copy which he certifies to be a true copy thereof. On the
other hand if the original of a public document is to be admitted in evidence
without proof of its genuineness, there would be no check whatever either by
way of scrutiny or examination of that document by an officer or by the
Court. The third and perhaps the most important reason, for not accepting
Mr.Shah's argument on the point which I am now considering is that neither
Section 67 nor Section 68 of the Evidence Act which lay down that the
signature and the handwriting on a document must be duly proved do not
make any exception in the case of public documents. In view of the
provisions of the said section all documents whatever be their nature must be
therefore be proved in the manner provided by Section 45, 47 or 73 of the
Evidence Act........
5. The only question which remains for consideration is whether a
presumption of the genuineness of the original of a public document should
be drawn by reason of Illustration (e) to Section 114 of the Evidence Act to
the effect that official acts have been regularly performed. It is no doubt true
that it has been held by a Division Bench of this Court in the case of East
India Trading Co. v. Badat & Co., AIR 1959 Bom. 414 that Section 114 of
the Evidence Act is wide enough to permit the Court to raise a presumption
not only with regard to oral evidence, but also with regard to documentary
evidence. It may be mentioned that the decision of the Division Bench in the
said case was reversed on appeal by the Supreme Court by a majority AIR
1964 SC 538, but in the judgment of the majority the Supreme Court has not
referred to the point mentioned above. Apart from the undesirability of
taking a view which would let in any and every document tendered by
Government in suits to which it is a party without proof of genuineness, in
my opinion, no presumption under Section 114 can be drawn in view of the
mandatory and unqualified term of Sections 67 and 68 of the Evidence Act.
Section 114 which to put it in popular language, merely empowers the Court
to use its commonsense, cannot be used to contravene an express provision
of the Act itself. I, therefore, hold that if the original of a public document is
sought to be tendered in evidence, it must be proved in the manner required
by law.....
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : MOTOR ACCIDENT CLAIMS TRIBUNAL
Date of decision: 29th November, 2012
MAC.APP. 76/2012

RAJINDER KUMAR Vs  LAL BACHAN & ORS.


CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL



1. Appellant Rajinder Kumar, who is the owner of the offending truck
No.DL-1GA-8816 impugns a judgment dated 30.07.2011 passed by the
Motor Accident Claims Tribunal (the Claims Tribunal) whereby while
awarding compensation of `3,55,414/- in favour of the First Respondent, the
Claims Tribunal granted recovery rights against the Appellant on the
premise that the driving licence held by the Second Respondent was fake
and the Appellant committed a breach of the terms and conditions of the
policy.
2. The quantum of compensation and the finding on negligence is not
challenged by the Appellant. Thus, the same has attained finality.
3. While holding that the Appellant was not vigilant enough to ensure that
the vehicle was driven by a duly licensed person, the Claims Tribunal in
para 17 of the impugned judgment held as under:-
“17. When I considered the facts as stated by R2W1 Sh.Rajinder Kumar in
his cross examination, it is found that he has not checked or seen the licence
of R1 which was allegedly presented to him. He has admitted that Ex.
R3W1/5 was presented to him. DL, photocopy Ex. R3W1/5 was issued from
Licencing Authority, NV Department, BRN, Bhadoli, UP, but he has stated
in his cross examination that R1 was holding driving licence which was
issued from State of Assam. This shows that he had not taken adequate care
to see that the driver R1 had an appropriate licence to drive the offending
vehicle. R2W1 has not examined previous owner of R1 to prove the fact that
he had inquired about R1 from his previous employer. In my view, R2 Sh.
Rajinder Kumar has taken a false plea to the fact that driving licence of R1
was checked before employing him as driver. He has failed to discharge his
duty to see that the vehicle was driven by the person having valid driving
licence. Therefore, I am of the considered opinion that R3 is entitled to
recover the compensation amount from R1 and R2 jointly and severally after
having paid the same to petitioner. This issue is decided accordingly.”
4. Thus, the recovery rights were granted on the premise that the Appellant’s
testimony that he checked the licence at the time of employing the driver
was not believable in as much as the driving licence was issued by the MV
Department, BRN Bhadoli, U.P. whereas the Appellant R2W1 deposed that
he saw the driving licence of the driver which was issued from State of
Assam.
5. The reasoning given by the Claims Tribunal cannot be accepted for more
than one reason. First, the Appellant might have seen the driving licence
which was issued to the driver by the Motor Licensing Authority from some
District in the State of Assam; and, second, and more important that the
Respondent Insurance Company was under obligation to prove the breach of
the terms and conditions of the policy. It failed to prove that the driving
licence possessed by the driver, the second Respondent was fake.
6. At this juncture, it would be relevant to refer the testimony of R3W1 who
was examined by the Respondent Insurance Company to prove that the
driving licence No.12840/SRN/04 possessed by the Second respondent was
fake. He sought to prove the report Ex.R3W1/4 issued by the Transport
Authority. I have perused the document Ex.R3W1/4. It is Accident
Information Report (AIR) purported to have been issued by the Licensing
Authority, NV Department, Sant Ravidas Nagar, Bhadohi, U.P. R3W1 was
completely silent about the authenticity of the signatures on the document
Ex.R3W1/4. A document purported to be signed by a person can be proved
either by the said person or by any person who may be conversant with the
signatures of the said person.
7. Section 67 of the Indian Evidence Act, 1872 (the Evidence Act) lays
down the mode of proof of a document, which is extracted hereunder:-
“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 hand writing.”
8. Thus, any document including a public document has to be proved as
provided under Section 67 of the Evidence Act.
9. The question of proof of a Sanction Order signed by the Sanctioning
Authority i.e. Secretary (Medical) Delhi Administration came up before a
learned Single Judge of this Court in State (Delhi Administration) v. Brij
Mohan, 27 (1985) DLT 322 where it was held as under:-
“(8) Section 61 of the Evidence Act lays down that the contents of a
document may be proved either by primary or by secondary evidence.
Section 62 thereof defines primary evidence as meaning the document itself
produced for the inspection of the court. In other words, the primary
documentary evidence of a transaction (evidenced by writing) is the
document itself which should be produced in original to prove the terms of
the contract/ transaction, if it exists and is obtainable. Since the original
sanction was admittedly placed on record by the prosecution, the
requirements of this provision stood satisfied and the question of any
secondary evidence for proving the contents of the sanction as such did not
arise. Primary evidence in the context of oral evidence, however, means an
oral account of the original evidence i.e. of a person who saw what happened
and gives an account of it recorded by the court. That question does not
appear to have arisen in the instant case because the matter was still at the
stage of proof of the consent accorded by the Secretary (Medical). Since
Sections 61 to 66 of the Evidence Act deal with the mode of proving the
contents of the documents, either by primary evidence or by secondary
evidence, I need not dwell upon the same in view of the original document
having been placed on the record.
(9) Then comes the most important question viz. the genuineness of a
document produced in evidence i.e. is a document what it purports to be and
this is dealt with in Sections 67 to 73 of the Evidence Act. Section 67 refers
to documents other than documents required by law to be attested. It simply
requires that the signature of the person alleged to have signed a document
(i.e. the executant) must be proved by evidence that the signature purporting
to that of the executant is in his handwriting. Further it requires that if the
body of the document purports to be in the hand-writing of someone, it must
be proved to be in the hand-writing of that person. However, Section 67 does
not in terms prescribe any particular mode of proof and any recognised
mode of proof which satisfies the Judge will do. Thus, the execution/
authorship of a document may be proved by direct evidence i e. by the writer
or a person who saw the document written and signed or by circumstantial
evidence which may be of various kinds, for example, by an expert or by the
opinion of a non-expert who is acquainted with the hand-writing in any of
the ways mentioned in Explanation to Section 47 or even by comparison etc.
(See Sections 45, 47, 73 & 90 of the Evidence Act)......”
10. The question of proof of a public document came up before Bombay
High Court in C.H. Shah v. S.S. Malpathak & Ors., AIR 1973 Bom. 14,
where it was held as under:-
“4....... In all cases of secondary evidence under Section 65 read with
Section 63 of the Evidence Act when a copy or an oral account of a
document is admitted as secondary evidence, the execution of the original is
not required to be proved but if the original itself is sought to be tendered it
must be duly proved and there is no reason for applying a different rule to
public documents. Secondly, in the case of a certified copy, before a
presumption of its genuineness can be raised under Section 79, as laid down
by the Supreme Court in Bhinka's case already referred to above it must be
shown that the certified copy was executed substantially in the form and in
the manner provided by law. There would, therefore, be a check or safeguard
in so far as the officer certifying it in the manner required by law would have
to satisfy himself in regard to the authenticity of the original and in regard to
the accuracy of the copy which he certifies to be a true copy thereof. On the
other hand if the original of a public document is to be admitted in evidence
without proof of its genuineness, there would be no check whatever either by
way of scrutiny or examination of that document by an officer or by the
Court. The third and perhaps the most important reason, for not accepting
Mr.Shah's argument on the point which I am now considering is that neither
Section 67 nor Section 68 of the Evidence Act which lay down that the
signature and the handwriting on a document must be duly proved do not
make any exception in the case of public documents. In view of the
provisions of the said section all documents whatever be their nature must be
therefore be proved in the manner provided by Section 45, 47 or 73 of the
Evidence Act........
5. The only question which remains for consideration is whether a
presumption of the genuineness of the original of a public document should
be drawn by reason of Illustration (e) to Section 114 of the Evidence Act to
the effect that official acts have been regularly performed. It is no doubt true
that it has been held by a Division Bench of this Court in the case of East
India Trading Co. v. Badat & Co., AIR 1959 Bom. 414 that Section 114 of
the Evidence Act is wide enough to permit the Court to raise a presumption
not only with regard to oral evidence, but also with regard to documentary
evidence. It may be mentioned that the decision of the Division Bench in the
said case was reversed on appeal by the Supreme Court by a majority AIR
1964 SC 538, but in the judgment of the majority the Supreme Court has not
referred to the point mentioned above. Apart from the undesirability of
taking a view which would let in any and every document tendered by
Government in suits to which it is a party without proof of genuineness, in
my opinion, no presumption under Section 114 can be drawn in view of the
mandatory and unqualified term of Sections 67 and 68 of the Evidence Act.
Section 114 which to put it in popular language, merely empowers the Court
to use its commonsense, cannot be used to contravene an express provision
of the Act itself. I, therefore, hold that if the original of a public document is
sought to be tendered in evidence, it must be proved in the manner required
by law.....”
11. Thus, the Respondent Insurance Company failed to establish that the
driving licence possess by the driver was fake. The Claims Tribunal
committed an error in granting recovery rights against the Appellant.
12. In view of the above, the impugned judgment so far as it grants recovery
rights against the Appellant is liable to be set aside.
13. The Appeal is allowed to the extent as indicated above.
14. The statutory amount of `25,000/- shall be refunded to the Appellant.
15. Pending Applications also stand disposed of.
Sd/-
(G.P. MITTAL)
JUDGE
NOVEMBER 29, 2012

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