2008 Supreme(Bom) 127

2008(4) ALL MR 808
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.C. DAGA, J.
Bank of India - Appellant
Vs.
M/s. Allibhoy Mohammed & Ors.- Respondent
Suit No.485 of 1989
Decided On: 29th January, 2008.

Headnote:Bankers’ Books of Evidence Act, 1891 - Section 4-Suit for recovery of debt dues to Bank-Documents produced by bank was not upto requirement of Evidence Act and Banker Books of Evidence Act-While defendant remained absent-Held, failure and Bank to prove issues against them and absence of dependents answers against them.

       Evidence Act, 1872 - Sections 61, 62, 63, 65 and 67-Civil Procedure Code, 1908, Order XVIII, Rule 4-Affidavit in support of suit claim-Whether be read as evidence.-Since none of the affiants have entered the witness-box, the said affidavits cannot form part of evidence. Thus, they cannot be read in evidence. Apart from the above findings, assuming that the affidavits can be read in evidence, even then plaintiff-bank cannot succeed in the suit for want of proof of loan documents and extract of accounts as per the provisions of Indian Evidence Act.

       Evidence Act, 1872 - Sections 61, 62, 63, 65, 67 and 85-Documents-Proof of.-Person who can vouch for truth of the facts in issue has not been examined. Hence, documents cannot be said to have been proved in accordance with the provisions of Evidence Act.

       Evidence Act, 1872 - Sections 61, 62 and 66-Primary evidence-Admissibility of.-A party seeking to prove the execution of a document is not required to prove that the executant knew the contents thereof when the executant denies having signed it and pleads forgery, but if the executant pleads ignorance then in certain circumstances it may be necessary to satisfy the Court that the executant had knowledge of the contents. So where the correctness of the contents of a document is in issue, it should be proved by calling the person who executed the document. It is not sufficient to merely prove through a witness the signature or the handwriting of the person who signed or wrote it. The signature of the executant of sale-deed must be proved before it can be admitted in evidence. A sale deed cannot be proved by mere production of the Register in which it is copied out in the registration office. Consequently, documents could not be said to have been proved in accordance with the Evidence Act. Similar is the case, with regard to the letter of partnership. Hence, documents produced on record though originals or primary evidence cannot be read in evidence for want of legal proof. As such, they are required to be excluded from consideration.

       Evidence Act, 1872 - Sections 63, 65 and 67-Secondary evidence produced before Court-Due to loss of original document-Whether it is admissible or not that secondary evidence is inadmissible until non-production of original comes within the cases provided under Section 65 of Evidence Act.-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 led only where original is proved to have existed but was lost or misplaced. The document unless shown to have been compared with original one, mere copy of the document does not become secondary evidence. 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.

       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.

       The prior permission of the Court is 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.

       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 respect 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.

       So far as the demand notice is concerned, the same is a photo copy of the typed copy without having the signature of the Advocate; who had issued this demand notice. Nobody has proved contents thereof. There is no evidence on record showing despatch of this notice or receipt thereof by the defendants. Under these circumstances, this notice also cannot be said to be a legal evidence. It cannot be relied upon.

       Evidence Act, 1872 - Sections 85, 61, 62 and 63-Civil Procedure Code, 1908, Order XVIII, Rule 4-Suit for recovery of amount by bank.-The Court shall presume due execution and authentication of power of attorney when executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or it’s Vice Consul or representative of the Central Government, etc. This presumption is available in favour of the original power of attorney holder provided mandate of Section 85 is duly followed. In the case on hand, neither the original power of attorney was produced nor notarised photo copy was produced on record. Consequently, both affiants failed to prove that they are the duly authorized persons to give evidence on behalf of the plaintiff bank.

       Evidence Act, 1872 - Sections 61, 62 and 66 - Primary evidence - Admissibility of. - A party seeking to prove the execution of a document is not required to prove that the executant knew the contents thereof when the executant denies having signed it and pleads forgery, but if the executant pleads ignorance then in certain circumstances it may be necessary to satisfy the Court that the executant had knowledge of the contents. So where the correctness of the contents of a document is in issue, it should be proved by calling the person who executed the document. It is not sufficient to merely prove through a witness the signature or the handwriting of the person who signed or wrote it. The signature of the executant of sale-deed must be proved before it can be admitted in evidence. A sale deed cannot be proved by mere production of the Register in which it is copied out in the registration office. Consequently, documents could not be said to have been proved in accordance with the Evidence Act. Similar is the case, with regard to the letter of partnership. Hence, documents produced on record though originals or primary evidence cannot be read in evidence for want of legal proof. As such, they are required to be excluded from consideration.