TaxTMI 
TaxTMI 
TaxTMI 
2018 (7) TMI 2188
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.... the documents having been lost during the shifting of the office, during internal transfer of case from one team to another, could not be found. It was mentioned in the petition that the documents, which were proposed to be admitted in evidence are notarized copies of the originals made by mechanical process, which in themselves ensure accuracy of the copies. The respondent therein filed a counter denying the averments of the petition; denying the genuineness of the documents proposed to be filed by the petitioner and also denying the fact of loss of files during shifting. The Court below, by considering that the documents are internal correspondence between third parties and that it is, hence, quite natural that the petitioner would have xerox copies of those documents, allowed the petition. 2. Impugning the said order, this revision is preferred on the grounds that the Court below ought to have seen that the respondent submitted that the office copies of the documents, regarding which secondary evidence was sought to be adduced, were lost and hence there would be not even a remote possibility of tracing out the originals of the documents and that the Court below mechanically ....
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....d as lost. 3. Whether the notice mandated by Section 66 of the Indian Evidence Act is necessary before admitting the documents. 4. Whether the failure of the respondent to seek permission of the court, for filing documents, at a alter stage of filing the plaint, would make the petition liable for dismissal. 5. Whether the power under Article 227 of the Constitution of India need to be exercised in this case. 6. To what result. POINT No. 1: 7. The contention of the petitioner's counsel that the documents are not notarized copies but are only simple xerox copies, is not disputed by the respondent's counsel. His contention is that even xerox copies can be categorised as secondary evidence, according to what is defined in Section 63 of the Act. Section 63 of the Act defines secondary evidence, which includes the copies made from the originals by mechanical process, which in themselves ensure the accuracy of the copies and copies compared with such copies. The category of documents, in this case, is argued by the respondent's counsel, as falling under the above definition. 8. The counsel for the petitioner relied on a decision of the Supreme Court in Ashok Dulicha....
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.... for the petitioner, to contend that the xerox copies cannot be admitted in evidence. In the above decision, this Court upheld that typed copy of a document cannot be admitted as secondary evidence unless the conditions enumerated in Section 65 of the Act are shown to exist. The ruling does not speak about the admissibility or otherwise of xerox copies. 11. A decision of this Court in Enkay Texofood Industries Ltd. v. State of Andhra Pradesh (CRLP. No. 5195 of 2014 dated 22.04.2015) permitted xerox copies to be marked. The objection of the petitioner therein was taken note of by the Court, the objection being that the photostat copy of a cheque is easily tamperable by mechanical process and if the same is allowed to be marked as exhibit, the accused may not be able to send the document for comparison to FSL to establish their defence plea. The Court observed that mere allowing the complainant to mark the photostat copy of the document does not mean accepting its contents to be true; the burden is on the complainant to prove the contents of the cheque; it is only after the complainant discharges his evidentiary burden, that the onus shifts to the accused; the accused can establish ....
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....ence given by the witness, who produced the record and the evidence of the defendant, the trial Court allowed the application and admitted the letter of disclaimer to be used as secondary evidence. The Supreme Court by extracting Section 65 of the Act held "The preconditions for leading secondary evidence are that such original document could not be produced by the party relying upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party seeking to produce secondary evidence must establish for the non-production of primary evidence and unless it is established that the original document is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot be accepted." The Supreme Court, by relying on its earlier decision in Ehtisham Ali v. Jamna Prasad [AIR 1922 PC 56] wherein the same question came up for consideration, which is with regard to admissibility of secondary evidence in case of loss of primary evidence. It was held that it is well settled that if a party wishes to lead secondary evidence, the Court is obliged to exami....
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....ection 66 of the Act to be given to the person, who is shown to be in possession of the originals of he documents, the copies of which are sought to be admitted, cannot be ignored or belittled, only on the premise that the documents, anyhow, need to be proved and hence no prejudice would occur. 19. It would, at this stage, be beneficial to extract Section 65(a) of the Act, as under: 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; 20. A reading of the above provision would show that the notice under Section 66 of the Act is necessary when the original is shown to be in possession of the person against whom the document is sought to be proved or is in possession of any person out of reach or not subj....
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....ALD 338 (supra) and others. But there is no ruling made, with regard to the argued aspect. This court was distinguishing between the documents filed under Rule 14 of Order 7 and Order 13 Rule 1 of Civil Procedure Code. The decision touches upon the manner in which leave has to be granted for filing documents at a belated stage to the plaint. The respondent, by this petition, only seeks permission to adduce secondary evidence of certain documents. Leave required under Order 7 Rule 14 of CPC can, if required, be obtained after the permission to adduce secondary evidence, is accorded. The impugned order, hence, need not be set aside on that count. The point is answered accordingly. POINT No. 5: 23. Having held that xerox copies of documents can be admitted in evidence; having held that notice under Section 66 of the Act is required when the documents are in possession of third parties and the persons mentioned in Section 65(a) of the Act; having observed that some of the documents mentioned in the table shown in the petition are in possession of third parties and hence, notice under Section 66 of the Act is required, we have to now examine whether the order of the Court below, allo....
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....nce in appeal about the way the trial proceeded. 26. In support of the contention, that the unless it is proved by the respondent that the original of the copies proposed to be filed by it in the Court are not in existence, secondary evidence cannot be permitted at all, the learned counsel for the petitioner relies on a decision of the Supreme Court in J. Yashoda v. K. Shoba Rani (2007) 5 SCC 730. The Supreme Court held that 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. It further held that essentially secondary evidence is an evidence which may be given in the absence of that better evidence which the law requires to be given first, when a proper explanation of its absence is given; the definition under Section 63 of the Evidence Act is exhaustive as the section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence. It was also held that the rule which is the most universal, namely, that....