Let me now deal with the photo copies of some of the documents filed on record. Section 63 of the Evidence Act provides- for leading secondary evidence. Secondary evidence cannot be accepted without sufficient reason being given for non production of the original. The loss of original document must be shown in order to lead secondary evidence. Secondary evidence of the document can be allowed to be lead only where original is proved to have existed but was lost or misplaced (see . Filmistan Private Ltd. Co. v. The Municipal Corporation for Greater Bombay). The document unless shown to have been compared with original one, mere copy of the document does not become secondary evidence. The person giving oral evidence who accounts for the contents must have himself seen the original document and not a mere copy. "Seen" here will obviously mean "read". A person who proposes to testify the contents of a document, either by copy or otherwise, must have read it. The contents of private documents may be proved as secondary evidence by any witness who has in fact read them. The secondary evidence is required to be proved in the same manner in which primary evidence.
28. Section 65 of the Evidence Act provides that in each type of cases secondary evidence relating to the document may be given. This Section enumerates the seven exceptional cases in which secondary evidence is admissible. Secondary evidence is of the contents which cannot be admitted without the production of document in such a manner within one or the other of the cases as provided for in the Section.
29. The prior permission of the Court required to be taken for producing secondary evidence of the documents on the grounds that original documents were lost. To sum up, when anybody wants to lead secondary evidence, two things are required to be proved; there must be evidence of the existence of the original documents and there must be evidence of their loss. No permission to lead secondary evidence was obtained by the plaintiff-bank.
28. Section 65 of the Evidence Act provides that in each type of cases secondary evidence relating to the document may be given. This Section enumerates the seven exceptional cases in which secondary evidence is admissible. Secondary evidence is of the contents which cannot be admitted without the production of document in such a manner within one or the other of the cases as provided for in the Section.
29. The prior permission of the Court required to be taken for producing secondary evidence of the documents on the grounds that original documents were lost. To sum up, when anybody wants to lead secondary evidence, two things are required to be proved; there must be evidence of the existence of the original documents and there must be evidence of their loss. No permission to lead secondary evidence was obtained by the plaintiff-bank.
30. So far as the case in hand is concerned, the applications dated 21-1-1980 and 30-4-1986 and demand notice filed on record cannot be said to be primary evidence since they are mere photo copies. No evidence is on record to show that at any time in the past, original documents were in existence and that they are lost. Nobody has deposed with res-pect to the fact of having seen and compared original document with the copy produced. The secondary evidence of the contents of document is inadmissible until non production of the original is first accounted for, so as to bring it within one or the other category of the cases provided for in Section 65. For the reasons recorded above secondary evidence tendered is inadmissible and cannot be read in evidence. Hence, these three documents referred hereinabove are excluded from consideration.
Bombay High Court
Bank Of India vs Alibhoy Mohammed And Ors. on 29 January, 2008
Equivalent citations: AIR 2008 Bom 81,2008(4) ALLMR808
V.C. Daga, J.
