Source: Supreme Court

Why in News?

Recently, the Supreme Court in the matter of Vijay v. Union of India described the principles relevant for examining the admissibility of secondary evidence under the Indian Evidence Act, 1872 (IEA).

What was the Background of Vijay v. Union of India Case?

• Plaintiff and Defendant entered into an agreement to sell on 4^th February 1998.
• When Defendant denied the existence of such an agreement, Plaintiff filed a suit for specific performance of contract.
• Plaintiff moved an application to file a copy of the agreement to sell, among other documents, as secondary evidence.
• The District Court held that secondary evidence of an agreement to sell could not be allowed as it was not executed on a proper stamp, thus barred under section 35 of the Indian Stamp Act, 1899.
• Aggrieved by this, the Plaintiff filed a petition before the High Court of Madhya Pradesh and the Court upheld the order of the District Court.
  • Thereafter, an appeal was filed before the Supreme Court which was later allowed by the court.

What were the Court’s Observations?

• A bench of Justices Abhay S Oka and Sanjay Karol while explaining the principles relevant for examining the admissibility of secondary evidence under IEA stated that if a document that is required to be stamped is not sufficiently stamped, then the position of law is well settled that a copy of such document as secondary evidence cannot be adduced.
• The court further deduced the following principles relevant for examining the admissibility of secondary evidence:
  • Law requires the best evidence to be given first, that is, primary evidence.
  • Section 63 of the IEA provides a list of the kinds of documents that can be produced as secondary evidence, which is admissible only in the absence of primary evidence.
  • If the original document is available, it has to be produced and proved in the manner prescribed for primary evidence. So long as the best evidence is within the possession or can be produced or can be reached, no inferior proof could be given.
  • A party must endeavor to adduce primary evidence of the contents, and only in exceptional cases will secondary evidence be admissible.
  • When the non-availability of a document is sufficiently and properly explained, then secondary evidence can be allowed.
  • Secondary evidence could be given when the party cannot produce the original document for any reason not arising from his default or neglect.
  • When the copies are produced in the absence of the original document, they become good secondary evidence. Still, there must be foundational evidence that the alleged copy is a true copy of the original.
  • Before producing secondary evidence of the contents of a document, the non-production of the original must be accounted for in a manner that can bring it within one or other of the cases provided for in the section.
  • Mere production and marking of a document as an exhibit by the Court cannot be held to be due proof of its contents. It has to be proved in accordance with the law.

What are the Relevant Legal Provisions Involved in it?

Section 63, IEA

About:

• This section deals with 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 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.

Case Law:

In the case of Cement Corpn. of India Ltd. v. Purya (2004), the Supreme Court held that the terms primary and secondary evidence apply to the kinds of proof that may be given to the contents of a document, irrespective of the purpose for which such contents, when proved, may be received

Section 35, The Indian Stamp Act, 1899

• This section deals with instruments not duly stamped inadmissible in evidence, etc.
• It states that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped or if the instrument is written on sheet of paper with impressed stamp, such stamp paper is purchased in the name of one of the parties to the instrument.
  • Provided that—
    (a) any such instrument shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument, insufficiently stamped, of the amount required to make up such duty, together with a penalty equal to two per cent of the deficient portion of stamp duty for every month or part thereof, from the date of execution of the instrument, minimum being Rs. 100.
    
    (b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of penalty of one hundred rupees by the person tendering it.
    
    (c) where a contract or agreement of any kind is affected by correspondence consisting of two or more letters and anyone of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped.
    
    (d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a criminal court, other than a proceeding under Chapter IX or part D of Chapter X of the Code of Criminal Procedure, 1973 (CrPC).
    
    (e) nothing herein contained shall prevent the admission of any instrument in any court when such instrument has been executed by or on behalf of the Government of the Union territory of Jammu and Kashmir or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act and such certificate has not been revised in exercise of powers conferred under Chapter VI of this Act.
    
    (f) nothing herein contained shall prevent the admission of a copy of any instrument or of an oral admission of the contents of any instrument, if the stamp duty or a deficient portion of the stamp duty and penalty as specified in clause (a) is paid.
    
    (g) any such instrument subject to all just exceptions be registered or authenticated on payment of the duty with which the same is chargeable, or in the case of an instrument insufficiently stamped, of the amount required to make up such duty.