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Report No. 185

Section 62

This refers to 'primary evidence'. It reads as follows:

"62. Primary evidence means the document itself produced for inspection of the court.

Explanation 1.- Where a document is executed in several parts, each part is primary evidence of the document.

Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2.- Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original, they are not primary evidence of the contents of the original."

There is an illustration to the section and it relates to 'printed' placards, all printed from one original. Any one of the placards is primary evidence of the contents of any other but no one of them is primary evidence of the contents of the original."

Phipson says (see 15th Edn., 1999, Pr. 41. 08) that it is 'not always easy, however, to determine what is the original document so as to constitute primary evidence in this sense; and sometimes the same document is primary for one purpose and secondary for another'.

Where documents are produced by "reprographic, automated or computerized" system, they must be marked as "original" to comply with Article 20 (b) of the Uniform Customs and Practice for Documentary Credits (UCPDC)" which is deemed generally to be incorporated in most documents transacted by Banks (see Glencore, International A.G. v. Bank of China) (1996) (1) Lloyds Rep 135. See also Federal Bank Ltd. v. V.M. Jog Engg. Ltd. (2001 (1) SCC 663).

Explanation 2 shows that in the case of printing etc., each is not the primary evidence of the original but each is the primary evidence only of the other copies. Phipson says (ibid) (para 41.19) that a copy made by a copying machine is regarded as a secondary evidence of the original (Nodin v. Murra: (1812) 3 Camp. 228). And printed, lithographed and photographed copie.- though, as we have seen, are primary evidence of each others' contents.- are merely secondary evidence of the common original.

In Re Stephens: LR 9 C.P. 187. Photographs of non-removable records were received; but the accuracy of a photographic copy, particularly of external objects, must, like that of a map or plan, be established on oath, to the satisfaction of the judge, either by the photographer or by someone who can speak to its correctness (Hindson v. Ashby: (1896) 2 Ch. 1; U.S. Shipping Board v. The St. Albans 1931 A.C. 632.

The Supreme Court observed in Govt. of AP v. Karsichinna Venkate Reddy, AIR 1994 SC 591 that when the genuineness of a document is the fundamental question, the photostat copies thereof should be accepted after examining the original record.

Carbon-copies produced by type-writers may, for all practical purposes, be regarded as equivalent, though the impression on the lower sheets, are likely to be imperfect. Cash memos prepared at the same time are primary evidence (Gurumurty Patra v. State of Orissa, 1990 Cri. L.J. (NOC) 160 (Orissa). In Federal US Co. v. Indian L & M Co. (176 Ind. 328), in the case of a machine-carbon-copy in triplicate, each one was held to be an original (Prithi Chand v. State of H.P., AIR 1989 SC 702).

The 69th Report stated that section 62 does not require any amendment. We agree.



Review of the Indian Evidence Act, 1872 Back




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