EXIM Bank Agricultural University Bangladesh

Course Title: Law of Evidence I

Course Code: LAW 325
Assignment Topic: A brief discussion on the concept of document & the modes of proving the
contents of documents under the Evidence Act, 1872 mentioning the types of evidence that are
admissible for proving the signature & handwriting of a person.
Submission Date: 22. 10. 2020

Submitted by Submitted to

Md. Arifin Arif Most. Sharmin Sultana

Reg: LLBA2018000559 Lecturer

Department of Law Department of Law

EXIM Bank Agricultural University Bangladesh EXIM Bank Agricultural University Bangladesh

EXIM Bank Agricultural University Bangladesh

House no: 69-69/1; BoroIndara Moor
Chapainawabganj; Postcode-6300
Tel: 078153525-29
CONTENTS
1 Introduction
2 Mood of Proof
3 Way of Proving the Contents of Documents
3.1. Evidence Act Section 61 Proof of contents of documents

3.2. Section 62 in The Evidence Act, 1872

3.3. Section 63 in The Evidence Act, 1872

3.4. In the view of Section 64 Proof of documents by primary evidence

3.5. Section 65 in The Evidence Act, 1872

3.6. Section 66 in The Indian Evidence Act, 1872

4 A document is said to be proved if following criteria are satisfied

4.1. Execution

4.2. Contents

4.3. Truthfulness of the contents

Introduction
Evidence Act, 1872 (in short “EA” hereinafter) as drafted by the British and came into effect on
1st September, 1872, is one of the oldest, precise and flawless piece of legislation in the world
and holds the field till today with negligent lacuna in its drafting, as every possible inference is
covered coupled with a residuary clause, in case, some situation is not covered expressly. This
legislation is so commonsensical that sometimes it becomes technical in its application. The
beauty of this legislation lies in its interpretation and there is no end to it. With my limited
intellect and learning at the bar so far, the best way as I understand, is to read it (as seniors
say) by correlation through examples and focus on its applicability. The more one dives deep
into its interpretation, the deeper it takes you. Thus, reading a provision of this legislation is
different from its application, as latter is the hard part in the facts of each case.
Now the expression “evidence” is defined under Section 3 as ‘interpretation clause’ and is more
of an inclusionary definition which says that the word evidence means and includes oral (Chapter
IV of EA) as well as documentary evidence (Chapter V of EA), as stated therein. In other words,
evidence includes all statements which Court permits or requires to be made before it, in relation
to matters of fact under inquiry and in second leg, includes all documents for the inspection of
the Court.1
Expression ‘document’2 finds mention also in Section 3, ibid, and means any matter expressed or
described upon any substance by means of letter, figure or marks or by more than one of those
means, intended to be used or which could be used, for the purpose of recording that matter. For
instance, a document could be writing, a map or plan or an inscription on a metal plate or stone
or a caricature.
Further, there is a clear distinction between a private document and a public document. Private
documents deserve treatment mentioned in Sections 61 to 66 of Evidence Act.3 The genuineness
of the same is to be taken into consideration having regard to Sections 67-73 of Evidence Act.
Now, a document may be proved under this Act either by primary evidence or by secondary
evidence. As defined under Section 62 of this Act, Primary Evidence means by proving the
original document itself, being the best evidence. Secondary Evidence as per Section 63 of EA
means document other than its original, as stated therein. A document may be proved by
secondary evidence as per conditions and terms enumerated in Sections 64-65 of EA.

1
Section 3 of Evidence Act 1872
2
Ibid
3
Chapter V of Evidence Act 1872
Mode of Proof

Mood of Proof is discussed in Chapter V of EA, and means that by which mode either primary or
secondary, a document may be proved. Mode of proof of a document can be proved by the co-
existence of following factors:-

1. Existence – means that the contents of a document must be proved. It means that a
distinction has to be drawn between truth and the contents of a document. This distinction
has also been highlighted in the matter of Om Praksh Berlia vs. Unit Trust of India &
Ors. Example – If A writes a letter to B saying that C has made a payment of TK.100/- to
D, then the contents of the letter can be proved only to the extent that A actually wrote a
letter to B saying the same. However, the truth pertains to the factum as to whether C
actually made a payment of TK.100/- to D. The letter has to be proved by an independent
direct or circumstantial evidence along with the statement of a witness who may depose
of the truth of such payment.
2. Genuineness – Genuineness only relates to the fact whether a document has been signed
or handwritten by a particular person. This fact has to be proved in accordance with
Sections 454, 475 or 676 to 737 of EA.
3. Accuracy – Accuracy is restricted to the fact that whether the witness who is deposing of
the truth of the matter has personal knowledge (i.e. direct oral evidence, among other) of
the same or not. In other words, no hearsay (i.e. indirect) evidence could be given of such
a fact.8
4. Stamping – Stamping only restricts itself to such documents which require stamping for
purpose of maintaining their genuineness, credibility and not to other documents (i.e.
mandatorily required under Registration Act, Stamp Act)9
5. Inherent/Ab-initio Admissibility – it means that the document in question should not be
irrelevant (See: Order 13 Rule 3, CPC – ‘’Rejection of irrelevant or in-admissible
document’’) or document is privileged to be brought on record10. Also, Section 167, EA
says that judgment is to be based on ‘’duly proved facts’’ and ‘’admissible documents’’
and no other.

Way of Proving the Contents of Documents

Evidence Act Section 61 Proof of contents of documents

The contents of documents may be proved either by primary or by secondary evidence.

4
Opinion of Experts
5
Opinion as to handwriting, when relevant
6
Proof of signature and handwriting of person alleged
7
Comparison of signature, writing or seal with others, admitted or proved
8
Sections 59-60, EA– imply that oral evidence to be direct
9
2020(3) SCALE 648
10
Sections 122 -129 of EA
Admission of contents

Admission of documents amounts to admission of contents but not its truth; Life Insurance
Corporation of India v. Narmada Agarwalla,11

A man may lie but a document will never lie; Afzauddin Ansary v. State of West Bengal, (1997) 2
Crimes 53 (Cal).

Section 62 in The Evidence Act, 1872

Primary evidence.—Primary evidence means the document itself produced for the inspection of
the Court.

Explanation 1.—Where a document is executed in several parts, each part is primary evidence
of the document; Where a document is executed in counterpart, each counterpart being executed
by one or some of the parties only, each counterpart is primary evidence as against the parties
executing it.

Explanation 2.—Where a number of documents are all made by one uniform process, as in the
case of printing, lithography, or photography, each is primary evidence of the contents of the
rest; but, where they are all copies of a common original, they are not primary evidence of the
contents of the original.

Illustration A person is shown to have been in possession of a number of placards, all printed at
one time from one original. Any one of the placards is primary evidence of the contents of any
other, but no one of them is primary evidence of the contents of the original.

Section 63 in The Evidence Act, 1872

Secondary evidence.—Secondary evidence means and includes—

(1) Certified copies given under s.74

(2) Copies made from the original by mechanical processes which in themselves insure 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.

11
AIR 1993 Ori 103
Illustrations

(a) A photograph of an original is secondary evidence of its contents, though the two have not
been compared, if it is proved that the thing photographed was the original.

(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence
of the contents of the letter, if it is shown that the copy made by the copying machine was made
from the original.

(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary
evidence; but the copy not so compared is not secondary evidence of the original, although the
copy from which it was transcribed was compared with the original.

(d) Neither an oral account of a copy compared with the original, nor an oral account of a
photograph or machine-copy of the original, is secondary evidence of the original.
COMMENTS Admissibility Application moved for permission to lead secondary evidence based
on ground of loss of document. Presence of document proved from the facts pleaded - Allowing
secondary evidence not illegal; Sobha Rani v. Ravikumar,12. Tape-recorded statements are
admissible in evidence; K.S. Mohan v. Sandhya Mohan,13. Certified copies of money lender’s
licences are admissible in evidence; K. Shivalingaiah v. B.V. Chandrashekara Gowda,14.

In the view of Section 64 Proof of documents by primary evidence

Documents must be proved by primary evidence except in the cases hereinafter mentioned.

Section 65 in The Evidence Act, 1872

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;

(b) when the existence, condition or contents of the original have been proved to be admitted in
writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its
contents cannot, for any other reason not arising from his own default or neglect, produce it in
reasonable time;

(d) when the original is of such a nature as not to be easily movable;

12
AIR 1999 P&H 21
13
AIR 1993 Mad 59
14
AIR 1993 Kant 29
(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 1[Bangladesh] to be given in evidence2; 1[Bangladesh] to be given in
evidence2;"

(g) when the originals consists of numerous accounts or other documents which cannot
conveniently be examined in Court, and the fact to be proved is the general result of the whole
collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is
admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of
the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may
be given as to the general result of the documents by any person who has examined them, and
who is skilled in the examination of such documents.

Section 66 in The Indian Evidence Act, 1872

Rules as to notice to produce.—Secondary evidence of the contents of the documents referred to

in section 65, clause

(a) , shall not be given unless the party proposing to give such secondary evidence has previously
given to the party in whose possession or power the document is, 1[or to his attorney or pleader,]
such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such
notice as the Court considers reasonable under the circumstances of the case:—Secondary
evidence of the contents of the documents referred to in section 65, clause (a), shall not be given
unless the party proposing to give such secondary evidence has previously given to the party in
whose possession or power the document is, 1[or to his attorney or pleader,] such notice to
produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the
Court considers reasonable under the circumstances of the case\:" Provided that such notice shall
not be required in order to render secondary evidence admissible in any of the following cases,
or in any other case in which the Court thinks fit to dispense with it:—

(1) when the document to be proved is itself a notice;

(2) when, from the nature of the case, the adverse party must know that he will be required to
produce it;

(3) when it appears or is proved that the adverse party has obtained possession of the original by
fraud or force;

(4) when the adverse party or his agent has the original in Court;

(5) when the adverse party or his agent has admitted the loss of the document;

(6) when the person in possession of the document is out of reach of, or not subject to, the
process of the Court.
A ‘duly proved’ document can only be considered at the final hearing of a proceeding (See:
Section 3, EA- ‘proved’, ‘disproved’ & ‘not-proved’). ‘Onus to prove’ (See: Sections 101-114,
EA) a document is upon the party intending to rely on it. Genuineness or Truthfulness of
contents of a document is to be proved by oral evidence, and contents thereof are to be proved
either by adducing primary evidence or secondary evidence.

EA distinguishes between ‘private document’ and ‘public document’ and below mentioned
criteria of proving a document do not apply to the ‘public document’ due to the special rules and
presumptions provided by law.

4 A document is said to be proved if following three criteria are satisfied:-

(a) Firstly, the execution (via Sections 67-73, EA) of a document, i.e. the handwriting or
signature on the document, if any, is proved. (Genuineness of a document)

(b) Secondly, contents/condition (via primary or secondary evidence/S.61-66, EA) of a

document, and

(c) Thirdly, truthfulness (via oral evidence/S.59-60, EA) of the contents of a document.

Above three points expanded as follows:-

Execution: – The process of proving the signature or handwriting in a document goes to the
‘genuineness’ of the document. The party who seeks to prove a particular document must get the
handwriting or signature of the author, if any, identified by the author himself under Section 67
of EA or any third person acquainted with the handwriting in question under Section 47 of EA or
by a person in whose presence the document was signed or executed under Sections 67 & 68 of
EA or by an expert witness under Section 45 of EA. Also, the signatory may himself admit
having signed or executed a document, which dispenses with proof there of vide Section 58 of
EA. Further, the Court itself is enabled under Section 73 of EA to compare the handwriting or
the signature in question with the one admitted or proved to the satisfaction of the Court. Under
certain circumstances enumerated at Sections 79 to 90 of EA, a Court is entitled to presume that
the signature on a document and the document itself is genuine. Thus, under Section 79, Courts
shall presume that certified copies are genuine (Sections 79-85 deal with “shall presume”; and
Sections 86-90 deal with “may presume”). Proof of a signature or handwriting on document is
sometimes referred to as mere ‘formal proof of a document’ means to dispense with formal
proof/genuineness of document where it is not disputed, eg: FIR] as proof thereof does not
automatically result in the proof of the contents of the document.
Contents: – where the party is not able to produce the primary evidence itself due to the reasons
enumerated under Section 65 of EA, the party is at liberty to produce the secondary evidence to
prove contents of the document. The ‘proof of contents’ is different from the ‘truth of the
contents’ The distinction has been brought out in AIR 1983 Bom 1, ibid, wherein, it was held
that expression ‘contents of a document’ under the EA must mean only ‘what the document
states and not the truth of what the document states’.

Truthfulness of the Contents: – Section 67 prescribes that truthfulness of the contents has to
be proved by the personal knowledge. In other words, a witness should be the author of
the document. This is proof by way of oral evidence as stipulated in Section 59 of EA.

However, in Bombay High Court judgment of Bima Tima Dhotre v. Pioneer Chemical Co.(1968
(70) Bom LR 683),observed that it is not necessary to call the writer of the document in order to
prove the document as documentary evidence would become meaningless if the writer has to be
called in every case. Hence, it can be said that truth of the contents of a document must be
proved either by the author or by ‘the person who knows and understands the contents’, i.e.
persons having personal knowledge of a document. This is rule against hearsay. But, following
are some of the exceptions to the Rule against Hearsay:-

1. When the truth of contents is not material to be proved or is not a fact-in-issue.

2. When the witnesses themselves are not available. Such contingency is covered by the
Section 32(1-8) of EA i.e. incapacity/ unavailability of witness.
3. Public Documents.
4. Summaries of voluminous documents. Under Section 65(g) of EA, if original documents
are voluminous, then the summary or synopsis thereof can be prepared and admitted in
evidence by a person who is not the author of the documents

To address the controversy of stage of deciding objections as to mode of proof, Bombay High
Court in a Full Bench (FB of 2008) Reference Case in ‘Hemendra Rasiklal Ghai vs. Subodh
Mody’, [Reported in (2008 Mh. L.J. 886)] dealt with two conflicting views on this issue: One,
admissibility of documents should be decided before they are exhibited in evidence or Other,
question of admissibility and proof of document should be reserved until judgment in the case is
given. Issue framed by Court to deal with above conflicting views read as: “At which stage,
objection as to admissibility or proof of document which may be produced or tendered should be
raised, considered and decided?” Full Bench answered the above reference by tracing out the law
and dealt with conflicting judgments on this aspect by categorizing objections as to mode of
proof and stage of their dealing by Court. Firstly, Objection of Deficiency of Stamp Duty is to be
taken when document tendered in evidence and Court to decide on it before document is marked
as exhibit. Secondly, Objection of Proof where admissibility is not disputed is to be taken when
document is marked as exhibit, and Court to decide on it before it is marked as exhibit. Thirdly,
Objection of Admissibility is to be taken at any stage of case until final judgment is reserved;
and lastly, Objection as to admissibility/relevancy, is to be taken at any stage of case until final
judgment is reserved.
Recently, Delhi High Court in the case of M/S Prakash Oil Corporation & Anr. V. Brij
Kishan15,was pleased to observe that ultimate test as guiding factor in deciding the objection as
to mode of proof is that trial should be expedited and there should not be any unnecessary delay.
Hence, on a case to case basis, objections qua admissibility or mode of proof should be
addressed at stages, as the Court finds it necessary for the expedition of the trial.

To conclude, it is utmost essential for a lawyer to do two important things right in every case in
the context of mode of proof, among other, and that is, firstly, to bring on record the documents
favoring one’s own case at first instance, and secondly; to prevent opposite side from
placing/bringing documents incorrectly on record contrary to mode of proof, by timely
objections at first instance as per law.

15
CM (M) No.1002/2018 & CM APPL. 34738/2018
References:

1. Section 3 of Evidence Act 1872

2. Ibid

3. Chapter V of Evidence Act 1872

4. Opinion of Experts

5. Opinion as to handwriting, when relevant

6. Proof of signature and handwriting of person alleged

7. Comparison of signature, writing or seal with others, admitted or proved

8. Sections 59-60, EA– imply that oral evidence to be direct

9. 2020(3) SCALE 648

10. Sections 122 -129 of EA

11. AIR 1993 Ori 103

12. AIR 1999 P&H 21

13. AIR 1993 Mad 59

14. AIR 1993 Kant 29

15. CM (M) No.1002/2018 & CM APPL. 34738/2018