Permitting Secondary Evidence U/S 16 Is Exception, Party Must Explain Circumstances Under Which Photocopy Is Prepared: MP High Court

In a notable ruling, the Madhya Pradesh High Court has emphasized the necessity of establishing a "factual foundation" for admitting photocopies as secondary evidence under Section 65 of the Indian Evidence Act.

The petitioner, Santosh Chouhan, had filed a civil suit for specific performance of contract and sought to introduce photocopies of documents as secondary evidence. The trial court dismissed this application, prompting the petitioner to file the present miscellaneous petition.

The petitioner's counsel argued that the trial court's decision was legally flawed and factually incorrect. The trial court allegedly overlooked the fact that the documents in question were admitted and crucial for the proper adjudication of the suit. The counsel contended that the respondents had not challenged the authenticity of the photocopies, and thus, the trial court should have allowed their admission as secondary evidence. The petitioner relied on the Supreme Court's decision in Nawab Singh vs. Inderjit Kaur (1999) to support their claim.

Respondents opposed the petition arguing that the petitioner had not met the necessary conditions for the admission of secondary evidence as stipulated under Section 65 of the Indian Evidence Act.

Justice Anil Verma sitting at Indore analyzed the provisions of Section 65 of the Indian Evidence Act and relevant case laws. The court noted that:

“It is well settled principle of law that when a photocopy of the document is produced, then in order to get the benefit of Section 65 of the Indian Evidence Act, the party concerned is required to lay a factual foundation for giving the secondary evidence. The party concerned may be required to explain the circumstances, under which the photocopy was prepared and who was in possession of the original at the time of preparing the same.”

The court referenced the Supreme Court's ruling in H. Siddiqui (Dead) by Lrs vs. A. Ramalingam (2011), which emphasized that secondary evidence must be authenticated by foundational evidence proving the photocopy's accuracy to the original. The court also cited the case of Ashok Dulichand vs. Madahavlal Dube & Another (1975), where it was held that without establishing the possession and preparation circumstances of the original document, secondary evidence is inadmissible.

Justice Verma found that the trial court had correctly dismissed the application because the petitioner failed to establish a factual foundation for the photocopies. The court noted that the petitioner did not demonstrate that the photocopies were accurate replicas of the originals nor did they explain the preparation circumstances of the photocopies.

Case Title: Santosh Chouhan S/O Late Hariram Chouhan Vs Yashwant S/O Dayaldas Kurre And Others

Citation: MISC. PETITION No. 7785 of 2023

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