Report No. 185
Section 88
This section deals with 'presumption as to telegraphic messages'. It uses the word 'may presume'. It reads as follows:
"88: The Court may presume that a message, forwarded from a telegraph office to the persons to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the Court shall not make any presumption as to the person by whom such message was delivered for transmission."
Section 88 allows the Court to make a presumption as stated in the section. But Section 88 contains a bar to the making of any presumption as to the person by whom the message was handed in for transmission or sent, when the original has not been proved to be in the hand writing of the alleged sender (Kishore v. Ganesh: AIR 1954 SC 316) and in the absence of any evidence that it was sent by him, his denial stands (ibid).
Though there is no presumption under Section 88 as to the person who delivered the message for transmission, such proof of authorship may be given by circumstantial evidence e.g., by the internal evidence afforded by the contents of the message in the context of the chain of other correspondence (Mobarak v. State: AIR 1957 SC 857). Sections 114(e) and Section 16 are relevant in this context.
The form handed over into the post office by the sender is the original: Henkel v. Pape: LR 6 Ex. 7; R v. Regan : 16 Cox CC 203. Presumption as to date and hour of sending a telegram are the same as in the case of letters (Hals, 3rd Ed. Vol. 15, para 73). (Sarkar, 15th Ed., page 1240).
Proof of authorship can be established by circumstantial evidence. (Mrs. Abba v. Suresh 1984 AIR NOC 131 (Del). In the case of a post office, there is a presumption that a letter properly directed and posted will be delivered in due course (British And American Tel. Co. v. Colson-LR 6 Ex.122).
The presumption under this section could be rebutted by producing messages actually received by the person who wants to rebut the presumption (Manchalal v. Shah Manikchand: AIR 1988 Karn. 221.
Section 62, Expl. (2) and Section 63(2) are relevant in the context of Section 88.
We agree with 69th Report (see para 40.22) that no amendment is necessary in Section 88.
Section 88A:
This section refers to the 'presumption as to electronic messages'. This was introduced by Act 21/2000.
It is on the same lines as Section 88. It reads as follows:
"88A: The Court may presume that an electronic message forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent."
The section contains an Explanation as to the meaning of the words 'addressee' and 'originator'.
It does not require any amendment.
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