2.
In
criminal trial, the evidence are required to be led by the complainant and / or
their witnesses by stepping into the witness box and illustrating /
demonstrating to what they have witnessed. The Complainant is to examine before
the Court, himself, and all other witnesses, who are “witness” to the crime,
which is alleged to have been committed by the accused named in the complaint.
This examination of himself and other prosecution witnesses is called
“Examination – in – Chief.
3.
Giving
evidence of facts is critical to any trial, be it civil trial or criminal
trial. And therefore, it becomes imperative to understand the dynamics of
evidence in legal sense.
To put it
simply, leading / giving evidence means, proving the existence or the non
existence of material facts, by the means of oral testimony and by the means of
documentary evidence.
Evidence
can be defined as any material which tends to persuade the court of the truth
or probability of a fact asserted before it.
The
word evidence in its relation to law includes all the legal means exclusive of
mere arguments which tend to prove or disprove any fact, the truth of which is
submitted for judicial investigation. Evidence is the means from which an
inference may logically be drawn as to the existence of a fact.
May
read further at:
4.
This
takes us to section 101 of Evidence Act, 1872. Section 101 of Evidence Act
incorporate the first principle of any litigation that the burden of proving
facts alleged / asserted, would always lie upon the person who comes to the
Court, claiming certain rights or attributing certain liabilities upon the
opposite party; and until such burden is discharged, the opposite party is not
obliged to lead evidence to prove his defense.
However, the law recognizes some
exceptions to this first principle. They are –
a)
When,
in respect of a fact, a rebuttal presumption of law exists in favour of the
party, the burden to prove the said fact lies upon the opposite party to prove
/ disprove / rebut the presumption of law, and cause the burden to be shifted
again upon the original party.
b)
Having
regard to the natural course of events, ordinary and prudent human conduct and
behaviour, indicated u/s 114 of Evidence Act, the burden of proof may shift
upon the opposite party;
c)
Where
a “Fact” to be proved is especially or substantially within the knowledge of the
opposite party, and in the backdrop of the circumstances, the opposite party
would be the only person who would be in the position to throw light on the
said factual situation, the burden of proof of that fact may shift upon that
person; (Section 106 Evidence Act)
d)
Where
any of the party makes an affirmative existence of a “Fact”, the burden to
prove the said fact lies upon that party, irrespective if he is the Plaintiff
or defendant. Like for example, where any of the party alleges fraud, misrepresentation,
mistake, coercion, admission, confession etc, the burden lies upon him to prove
such fraud etc. (Section 103 Evidence Act).
e)
Where
the accused takes plea that his case false within the exceptions, like of plea
of alibi, plea of self defense, plea of intoxication, plea of minor, the burden
falls upon him to prove such plea, and the law will presume the absence of such
alibi, self defense etc. (Section 105 Evidence Act).
f)
The
burden to prove certain facts may fall upon the other party where in a case the
other party admits the case of the first party. In these type of case, if the
opposite party fails to lead any evidence thereby explaining the circumstances
under which the purported admission was made, the first party would be entitled
for the judgment. (Section 102 Evidence Act)
The one other test which may be resorted
to, to shoulder the burden of proof of a particular fact – which party is in
the best position to enlighten the “fact in dispute”. This test has some
resemblance to mandate of sections 103 and 106 stated hereinabove.
The other test to determine on whom the
burden of proof lie, the test is – which party would be successful if no
evidence at all, or no more evidence, as the case may be, were given. The
application of principles of presumption of law will be significant in this
respect.
Before a burden of proof of a particular
fact is shouldered upon any party, the conceptual presumption of law in
relation to the fact under dispute is very critical. Section 114 of Evidence
Act would play a significant role in adjudging the abstract but genuine
presumption of law. The usual course of human nature, conduct and behaviour;
the natural course of events, would always regulate the burden of proof.
In this aforesaid discussion it is equally
important to know as how the law defines a prudent and reasonable man, for, it
would have a huge bearing on raising a presumption and placing a burden of
proof.
Who is a Prudent Man: A
prudent man is a wise man, may not be a genius. A prudent man is not in a
hurry. He is not influence by his emotions and act after weighing the occasion.
He deliberates. He pauses. He rethinks and willing to learn. He agonizes. He is
willing to see the point of view, which was never in his mind. He may not be
learned but has robust common sense and has basic instinct that move man and
woman. are those who think and reason intelligently;
is a person having the power of self control to be expected of an ordinary
person of the age; a person exercising those qualities of attention, knowledge
and intelligence and judgment, which requires of its members for the protection
of their own interests and the interests of others.
5. Presumption of Law & Burden of Proof: The presumption
of law and consequent burden of proof has significant bearing on the length of
any litigation and also on the outcome of the litigation. Just to indicate the
crucialness of aforesaid legal expressions, whereas a presumption of law has
the effect of shifting the burden of proof, a misplaced burden of proof may
frustrate the whole trial and may result in miscarriage of justice.
It is necessary to analyze what the rule about the
rebuttable and irrebuttable presumption of law really means.
Presumption of law: Presumption of law implies the
presumption of existence or the absence of a fact which is alleged to exist or
not exist. Presumption of law implies that the Courts / judges whilst dealing
with a factual backdrop of situation[*], considers certain facts, which are the
subject matter of controversy at hand, as proved unless disproved, or regards
them as not proved unless proved, [*] having regard to the social settings in
which we live, the general behaviour of humans in given situations, the
fallible and fragile propensity of humans, the natural course of events, the constitution of the human mind, the springs of human
action and the usage and habits of the Society. [Sections 4 & 114 Evidence
Act]
Presumption is an inference of certain facts,
which are drawn from proved facts. Whilst inferring the existence of a fact,
the courts are only applying a process of intelligent reasoning, which the
minds of a prudent man would do under similar circumstances.
The probative force of such presumption depends
on the number, weight, independence and consistency of elementary circumstances
on which presumption has been founded.
A number of circumstances, each individually
very slight, may so tally with and confirm each other, as to leave no room for
doubt, of fact, which they tend to establish.
Black's
Law Dictionary
5th Edition, 1979, defines 'Presumption' as under:
"A
presumption is a rule of law, statutory or judicial, by which finding of a
basic fact gives rise to existence of presumed fact, until presumption is
rebutted."
The same dictionary defines 'Rebut' as
under:
"In
pleading and evidence, to defeat, refute, or take away the effect of something.
When a plaintiff in an action produces evidence which raises a presumption of
the defendant's liability, and the defendant adduces evidence which shows that
the presumption is ill-founded, he is said to "rebut it."
A fact “X” which has relevance in the
proof of fact “Y” and inherently has some degree of probative or persuasive
value in that behalf, may be weighed by a judicial mind.
When the law makes a rule providing for
a rebuttable presumption that, on proof of fact “X”, fact “Y” shall be deemed
to be proved unless the contrary is established, what the rule purports to do
is to regulate the judicial process and to provide that the Courts will draw
the inference from the proof of fact “X” that fact Y” has also been proved,
unless the contrary is established.
In other words, the rule takes away
judicial discretion, as whether to attach or not the due probative value to
fact “X”; and requires prima facie the due probative value to be attached in
the matter of the inference as to the existence of fact “Y”, subject, of
course, to the said presumption being rebutted by proof to the contrary.
Thus, the rule of rebuttable presumption
adds statutory force to the natural and inherent probative value of fact “X” in
relation to the proof of the existence of fact “Y”.
In regard to the category of facts in
respect of which an irrebuttable presumption is prescribed by law, the position
is that the inherent probative value of fact “X” in that behalf is very great
and it is very likely that when it is proved in a judicial proceeding, the
judicial mind would normally attach great importance to it in relation to the
proof of fact “Y”.
In both the cases, rebuttable presumption
or irrebuttable presumption, the law purports to assist the judicial mind in
appreciating the existence of facts. In one case the probative value is
statutorily strengthened but yet left open to rebuttal, in the other case, it
is statutorily strengthened and placed beyond the pale of rebuttal.
A rebuttal presumption of law only makes
a prima facie case for party in whose favour it exists. It indicates the person
on whom the duty lies of going forward with evidence on the fact presumed, and
when that party has produced evidence fairly and reasonably tending to show
that the real fact is not as presumed, the purpose of presumption is over.
6.
In
every trial of Civil Suits or of Criminal prosecution, the material facts,
asserted, are required to be proved by means of oral and / or documentary
evidence.
7.
Section
58 of the Evidence Act exhorts that facts admitted need not be proved; and
sections 17 to 31 of the Evidence Act defines the scope and attributes of an
admission of facts.
Admission: Para 66: An admission is a
statement of fact which waives or dispenses with the production of evidence by
conceding that the fact asserted by the opponent is true. The Supreme Court has
observed: Admissions as defined u/s. 17 and 20 and fulfilling requirement of
Sec. 21 are substantive evidence. The admission is a best evidence against the
party making it though not conclusive, shifts the onus to the maker on
principle that what the party himself admits to be true may be reasonably
presumed to be true so that until onus is discharged, the facts admitted must
be taken to be true, Mohd. Koya, 1979 1 SCR 664. Hindoostan Spg.& Wvg.Mills
Ltd. Versus Hindustan Crown Mills [2007 (5) MhLJ 801]
“Admissions”, express or implied, by the opposite party, of
the execution of the concerned document in any of the communications exchanged
between the parties therein; or the circumstantial evidence, with the aid of
sections 114, 35 of said Act, may be extremely useful in proving the execution
of any document.
8. The definition of proved, not proved and disproved
provided under the said Act becomes very relevant, and is therefore reproduced.
"Proved".A
fact is said to be proved when, after considering the matters before it, the
Court either believes it to exist, or considers its existence so probable that a
prudent man ought, under the circumstances of the particular case, to act upon
the supposition that it exists.
"Disproved''.A
fact is said to be disproved when, after considering the matters before it, the
Court either believes that it does not exist, or considers its non-existence so
probable that a prudent man ought, under the circumstances of the particular
case, to act upon the supposition that it does not exist.
"Not
proved".A fact is said not to be proved when it is neither proved nor
disproved.
Read
further at:
10.
What constitutes evidence in a criminal trial? It is –
(a) All relevant and admissible oral statements
made before the court by the persons who have “witnessed the alleged
incriminating acts and omissions” (sections 59 and 60 of the Evidence Act
should be looked into);
(b) All relevant and admissible documents,
thereby demonstrating / suggesting the
existence of the bundle of alleged incriminating acts and omissions of the
person, to which he is charged with.
11. Two kind of
evidences may be given – oral and documentary. Therefore, it is necessary to appreciate the meaning
and attribute of Oral evidence, as set out in sections 59 and 60 of Evidence
Act, 1872; and of documentary evidence as set out in sections 3, 61, 62.
12.
ORAL EVIDENCE
Section 59: Proof of facts by oral evidence
All facts,
except the contents
of documents or electronic records, may be proved by oral evidence.
Section 60: Oral evidence must be direct
Oral evidence
must, in all cases whatever, be direct; that is to say
If it refers to
a fact which could be seen, it must be the evidence of a witness who says he
saw it;
If it refers to
a fact which could be heard, it must be the evidence of a witness who says he
heard it;
If it refers to
a fact which could be perceived by any other sense or in any other manner, it
must be the evidence of a witness who says he perceived it by that sense or in
that manner;
If it refers to
an opinion or to the grounds on which that opinion is held, it must be the
evidence of the person who holds that opinion on those grounds:
Provided that
the opinions of experts expressed in any treatise commonly offered for sale,
and the grounds on which such opinions are held, may be proved by the production
of such treatises if the author is dead or cannot be round, or has become
incapable of giving evidence, or cannot be called as a witness without an
amount of delay or expense which the Court regards as unreasonable:
Provided also
that, if oral evidence refers to the existence or condition of any material
thing other than a document, the Court may, if it thinks fit, require the
production of such material thing for its inspection.
Testimony of a person
which does not satisfy the above parameters may be labelled as “Hearsay”
evidence.
And, according to
principle of “Best Evidence” recognized u/ss 91 and 92 of Evidence Act, oral
evidence is not permitted in certain circumstances. Please refer link below.
In
this backdrop, the great utility of Section 297(2) of CrPC may be appreciated.
The said section expressly
mandates that Affidavits shall state separately, such facts as the deponent is
able to prove from his own knowledge and such facts as he has reasonable ground
to believe to be true; and in the latter case, the deponent shall clearly state
the grounds of such belief. The profound object of Section 297(2) is to flush
out Complaints making frivolous allegations against a person.
13. DOCUMENTARY
EVIDENCE
Section
3 of Evidence Act: Document means any matter expressed or
described upon any substance by means of letters, figures or marks, or by more
than one of those means, intended to be used, or which may be used, for the
purpose of recording that matter.
Documentary evidence may be given of the original
“document” or of the secondary evidence of the document. Therefore, let us
briefly look at relevant sections of Evidence Act.
Section 61: Proof of contents of documents
The contents of
documents may be proved either by primary or by secondary evidence.
Section 62: Primary evidence
Primary evidence
means the document itself produced for the 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.
Illustration
A person is shown to have been in
possession of a number of placards, all printed at one time 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.
Section 63: 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.
Illustrations
(a) A photograph of an
original is secondary evidence of its contents, though the two have not been
compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a
copy of a letter made by a copying machine is secondary evidence of the
contents of the letter, if it is shown that the copy made by the copying
machine was made from the original.
(c) A copy transcribed from a
copy, but afterwards compared with the original, is secondary evidence; but the
copy not so compared is not secondary evidence of the original, although the
copy from which it was transcribed was compared with the original.
(d) Neither an oral account
of a copy compared with the original, nor an oral account of a photograph or
machine-copy of the original, is secondary evidence of the original.
Section 64 of the said Act mandates that
all documents must be proved by producing the original itself, except in cases
where leading of secondary evidence is permissible under the law.
Section 64: Proof of documents by primary evidence
Documents must be proved by
primary evidence except in the cases hereinafter mentioned.
Section 65 of the said Act lays down the
cases in which secondary evidence of documents may be led.
Section 65: Cases in which secondary evidence relating to documents
may be given: Secondary evidence may be given of the existence, condition, or
contents of a document in the following cases:
(a) When the original is
shown or appears to be in the possession or power of the person against whom
the document is sought to be proved, or of any person out of reach of, or not
subject to, the process of the Court, or of any person legally bound to produce
it, and when, after the notice mentioned in section 66, such person does not
produce it;
(b) when the existence,
condition or contents of the original have been proved to be admitted in
writing by the person against whom it is proved or by his representative in
interest;
(c) when the original has
been destroyed or lost, or when the party offering evidence of its contents
cannot, for any other reason not arising from his own default or neglect,
produce it in reasonable time;
(d) when the original is of
such a nature as not to be easily movable;
(e) when the original is a
public document within the meaning of section 74;
(f) when the original is a
document of which a certified copy is permitted by this Act, or by any other
law in force in 52 [India]
to be given in evidence;
(g) when the originals
consists of numerous accounts or other documents which cannot conveniently be
examined in Court, and the fact to be proved is the general result of the whole
collection.
In cases (a), (c) and (d),
any secondary evidence of the contents of the document is admissible. In case
(b), the written admission is admissible. In case (e) or (f), a certified copy
of the document, but no other kind of secondary evidence, is admissible. In
case (g), evidence may be given as to the general result of the documents by
any person who has examined them, and who is skilled in the examination of such
documents.
Section 67 to 73 lays down that every
document which is relied upon and produced by a party, must be proved to be
duly executed in the handwriting / signed by the person, stated in the said
document. Sections 68 to 72 deals with proving of attested documents, which are
dealt with, hereinafter.
14.
Admission and denials of documents: Section 294 of CrPC, 1973, mandates that where any document is filed before any Court by
the prosecution or the accused, the particulars of every such document shall be
included in a list and the prosecution or the accused, as the case may be, or
the pleader for the prosecution or the accused, if any, shall be called upon to
admit or deny the genuineness of each such document. Where the genuineness of any document is not
disputed, such document may be read in evidence in any inquiry, trial or other
proceeding under this Code without proof of the signature of the person to whom
it purports to be signed. Provided that the Court may, in its discretion,
require such signature to be proved. The admission
or denial of a document contemplates
(a)
correctness of contents of the document;
(b) existence
of the document;
(c) execution
of the document;
(d) issuance
or receipt of the document;
(e) custody of
the document.
If any of the
party denies, it is just and reasonable that it tenders reasons for denying the
concerned document under any of the above grounds and bare and unsupported
denials shall not be deemed to be denials of a document and proof of such
documents may then be dispensed with at the discretion of the Court.
15. Admissibility / Exhibiting of documents [Criminal trials]:
[(2001) 3 SCC 1]
Para 13. It
is an archaic practice that during the evidence collecting stage, whenever any
objection is raised regarding admissibility of any material in evidence the
court does not proceed further without passing order on such objection. But the
fall out of the above practice is this: Suppose the trial court, in a case,
upholds a particular objection and excludes the material from being admitted in
evidence and then proceeds with the trial and disposes of the case finally. If
the Appellate or Revisional Court, when the same question is recanvassed, could
take a different view on the admissibility of that material in such cases the
Appellate Court would be deprived of the benefit of that evidence, because that
was not put on record by the trial court. In such a situation the higher court
may have to send the case back to the trial court for recording that evidence
and then to dispose of the case afresh. Why should the trial prolong like that
unnecessarily on account of practices created by ourselves? Such practices, when
realised through the course of long period to be hindrances which impede steady
and swift progress of trial proceedings, must be recast or remoulded to give
way for better substitutes which would help acceleration of trial proceedings.
Para 14. When
so recast, the practice which can be a better substitute is this: Whenever an objection is raised during
evidence taking stage regarding the admissibility of any material or item of
oral evidence the trial court can make a note of such objection and mark the
objected document tentatively as an exhibit in the case (or record the objected
part of the oral evidence) subject to such objections to be decided at the last
stage in the final judgment.
If the Court finds at the final stage that the objection so raised
is sustainable the Judge or Magistrate can keep such evidence excluded from
consideration. In our view there is no illegality in adopting such a course.
(However, we make it clear that if the objection relates to deficiency of stamp
duty of a document the court has to decide the objection before proceeding
further. For all other objections the procedure suggested above can be
followed.)
Para 15. The
above procedure, if followed, will have two advantages. First is that the time
in the trial court, during evidence taking stage, would not be wasted on
account of raising such objections and the court can continue to examine the
witnesses. The witnesses need not wait for long hours, if not days. Second is
that the superior court, when the same objection is recanvassed and
reconsidered in appeal or revision against the final judgment of the trial
court, can determine the correctness of the view taken by the trial court
regarding that objection, without bothering to remit the case to the trial
court again for fresh disposal. We may also point out that this measure would
not cause any prejudice to the parties to the litigation and would not add to
their misery or expenses.
16.
Mode of Proof of document [Criminal trials):
Geeta Marine Services Pvt Ltd [(2009) 2 MhLJ 410]
Para 25 On plain reading of the decision of the Apex Court in the case of
Bipin Panchal (supra), it is apparent that the same does not deal with an
objection as regards proof of a document or insufficiency of proof or incorrect
mode of proof. The said judgment deals with objection regarding the
admissibility of the document in evidence which is a separate category of
objection as distinguished from an objection regarding proof as laid down by
the Apex Court in the case of R.V.E. Venkatachala (supra). It is true that the
procedure laid down by the Apex Court in the case of Bipin Panchal (supra) will
have to be followed by the Courts sub-ordinate to this Court. However, the said decision of Apex Court is
applicable only to one category of objection regarding admissibility of the
document in evidence and that decision has no application when an objection is
raised to the proof or to irregular/insufficient mode of proof of a document.
As far as objection regarding inadequacy of stamp is concerned that is already
settled by the larger bench of the Apex Court in the case of Javer Chand. In
fact, in the decision of this Court in the case of Peacock Industries (supra),
the judgment of the Apex Court in the case of Bipin Panchal (supra) is not read
and interpreted to mean that it also applies to the objection regarding proof
of documents. Therefore, after filing of affidavit of examination-in-chief and
after recording formal examination-in-chief of the concerned witness, an
objection raised regarding proof of documents or insufficiency of proof of
adopting incorrect mode of proof has to be dealt with immediately by the
learned Magistrate before proceeding with the recording of cross-examination.
Only in a case where the said adjudication involves a decision on complicated
questions which require a very detailed adjudication, it can be postponed till
the final hearing. In a case where a
document is proved in accordance with Evidence Act but an objection is raised
to the admissibility of the said document, as held by the Apex Court in the
case of Bipin Panchal (supra), such document can be tentatively marked as an
exhibit as objection to the admissibility can be decided at the stage of final
hearing as contemplated in the decision of the case of Bipin Panchal (supra).
As pointed out earlier, if objection regarding proof of a document
is decided, the complainant or accused who has produced the said documents is
put to the notice that the document is not held as proved so that he can seek
indulgence from the Court of leading further evidence. This avoids possibility
of parties applying at the stage of judgment for recalling the witness or for
leading further evidence for proving a document.
17.
A Party leading any documentary evidence, may be relying upon documents –
(a) to which he is the author or which
is generated at his end or to which he is a party or signatory to the concerned
document;
(b) to which are received by him from
the opposite party;
(c) which are received from any other
person who is not party to the proceedings;
(d) which are Public documents.
As far as documents stated in clauses
(a) and (b) above are concerned, the party leading the evidence, would be
required to say or set out in his evidence or in his affidavit of evidence, how
(the manner and the circumstances in which) the said document came to be
executed;
As far as documents stated in clause (c)
above is concerned, the party leading the evidence, would be required to say
how he came into the possession of the said document, and he is not obliged to
say or set out, in his affidavit of evidence, how (the manner and the
circumstances in which) the said document came to be executed; and regarding
clause (d) the Public documents, please see sections 74,76,77,78,79 of Evidence
Act, 1872, and the link below.
18.
Mere relevancy or admissibility of document, led in evidence, is not suffice
Mere
relevancy or admissibility of document, led in evidence, is not sufficed. Every
evidence which is led, whether oral or documentary, must further the case of
the party, who is leading the evidence. This is called Probative value of
documentary evidence.
The
document which is tendered in evidence must prove or disprove the fact in
issue. In the case of H. Siddiqui (Dead) by LRs v. A. Ramalingam (2011) 4 SCC
240 Para’s 15 & 17, the Hon’ble Apex Court observed to say that:
15. In State of Bihar v. Radha Krishna Singh
this Court considered the issue in respect of admissibility of documents or
contents thereof and held as under: (SCC
p. 138, Para 40)
“40. ….Admissibility
of a document is one thing and its probative value quite another – these two
aspects cannot be combined. A document
may be admissible and yet may not carry any conviction and weight or its
probative value may be nil.”
17. Therefore,
it is the duty of the court to examine whether the documents produced in the
court or contents thereof have any probative value.
19.
This is how we go ahead in exhibiting of documents –
1.
Produce the original document –
primary evidence – sections 62 and 64 of Evidence Act, 1872.
2.
Identify the document – i.e. say, if
it is a Power of Attorney, Sale deed, gift deed, Notice, Agreement etc.
3.
Prove the execution of the document
by proving the signature and / or handwriting of the author of the document
concerned; and Signature and handwriting of the author of the document
concerned may be proved by any of the following ways, as may be applicable to
the facts of the case –
(a)
By stating that the document
concerned was signed in the presence of the deponent (the person leading the concerned
documentary evidence), and the deponent identifies the signature of the author
– Section 47; or
(b)
By Stating that, deponent has
received document written by that person in answer to documents written by the
deponent or under his authority and addressed to that person – Section 47; or
(c)
By stating that, in ordinary course
of business, documents written by that person have been habitually submitted to
the deponent. Relevant sections – 47; or
(d)
Summon the author of the document
(S.67)
VERY
IMPORTANT: Where
the parties have admitted the contents of the documents, either in the
pleadings or during the course of the proceedings, the opposite party can rest
on admission alone; and he need not produce and prove the original document – Zafar versus Zahur – AIR 1926 All 741.
IMPORTANT POINT
20. Proving of execution of a
document does not by itself prove the correctness of the facts stated therein
in the document, UNLESS, there is an “admission of any material fact” by the
author / signatory to the said document, or the person who is privy to the said
document. The facts, or rather material facts stated therein
in the concerned document, are to be proved independently, by leading oral or
documentary evidences, as the “nature of fact” may require.
Like for
example, the State Prosecution produces the FIR copy during the course of
trial. The copy of FIR so produced only proves the factum of registration of
FIR, and not the facts stated therein in the FIR. The allegations made in the
FIR, obviously have to be proved independently. Similarly, suppose a Notice u/s
138 of Negotiable Instruments Act, 1881, was sent by Speed Post / Regd. Post;
and the said Notice was duly served upon the other party; and thereafter, at
the time of leading evidence / marking of exhibits of documents, the copy of
the said Notice, alongwith Speed Post / Regd. Post Article and acknowledged A/d
card, was produced by the Complainant; and the Accused do not object to the
said exhibiting of Notice document. In this backdrop, the exhibiting of Notice
document only proves the factum of receipt of said Notice by the Accused; and
the allegations made in the said Notice, obviously have to be proved
independently.
The
degree of truthfulness of the contents of the document, of the party leading
the evidence, would be judged only after the cross-examination by the
adversary. Truthfulness of the contents of the document is the subject matter
of appreciation of evidence. And, if the document which was originated from the
adversary (opposite party) is duly exhibited by the Court, then, to the extent
facts stated therein which may be prejudicial to the adversary, may deemed to
have been admitted by the adversary, and need not be proved, as mandated u/s 58
of Evidence Act.
It is well settled that production of
documents do not by themselves prove the truthfulness of the contents of
documents; Proof of the truthfulness of the contents of documents has to be
given by cogent evidence – AIR 1989 Pat
66.
Balance sheet relating to accounts do
not prove by themselves; and the facts mentioned therein have to be proved by
evidence, after giving an opportunity to the opposite party to contest the
correctness of such evidence by cross-examination – ILR (1963) 2 Punj 28.
When an attestor and scribe were not
examined, it was held that such non-examination cannot by itself lead to an
inference that the document was not executed when the executants admits its
execution – Surender Reddy versus Govt.
of A.P. – (1979) 1 An WR 416.
Mere consent of a party to exhibit the
document does not amount to an admission of truthfulness of its content – AIR 1973 Bom 40.
The correctness of contents of a letter
cannot and do not stand proved, even if it is admitted that letters were passed
between the parties – Hoare Miller
versus UOI – (1961) 65 CWN 1206.
AIR 1972 SC 608
19 It was next
urged that even if the reports in question are admissible we cannot look into
the contents of those documents. This contention is again unacceptable. Once a document is properly admitted, the
contents of that document are also admitted in evidence though those contents
may not be conclusive evidence.
AIR 1981 SC 2085
Para 16: Undoubtedly, mere proof of the
handwriting of a document would not tantamount to proof of all the contents or
the facts stated in the document. If the truth of the facts stated in a
document is in issue mere proof of the handwriting and execution of the
document would not furnish evidence of the truth of the facts or contents of
the document. The truth or otherwise of the facts or contents so stated would
have to be proved by admissible evidence, i.e. by the evidence of those persons
who can vouchsafe for the truth of the facts in issue. But in this case
Bhikhubhai Gourishankar Joshi who filed an affidavit on behalf of the,
appellant has referred to the averments in the letter and the cable. He is a
principal officer and constituted attorney of the appellant company. Once the
receipt of the letter and the cable are admitted or proved coupled with the
fact that even after the dispute arose and before the suit was filed, in the
correspondence that ensued between the parties, the respondent did not make any
overt or covert reference to the arbitration agreement and utter failure of the
respondent to reply to the letter and the cable controverting the averments
made therein would unmistakably establish the truth of the averments made in
the letter. What is the effect of averments is a different question altogether
but the averments contained in the letter and the cable are satisfactorily
proved.
Para
17: Admission, unless explained, furnishes the best evidence.
AIR 1941 All 150
4. In order to enforce a claim on a
mortgage the plaintiff is required to produce the original bond or its copy
when circumstances exist which entitle the plaintiff to produce its copy. Gases
however may occur where admissions are available to the plaintiff, admissions
made in the course of pleadings or outside pleadings which go to prove his
claim. In such cases he can rest on admissions alone and he need not produce
and prove the original document or its copy. But the admissions must be sufficient
to cover the entire claim and must relieve the plaintiff of the necessity of
relying on the document or any portion of it. If the admissions are not
available or if they are indefinite or insufficient, then the plaintiff can
succeed only in the ordinary way, that is in a mortgage suit, by producing the
original bond or its copy. Oases of former kind are Chuni Kuar v. Udai Ram
('83) 6 All. 73, Mullu v. Deokaran ('13) 11 A.L.J. 734 and Hikmatullah Khan v.
Abdul Azim Khan ('21) 8 A.I.R. 1921 All. 218.
Cases of the latter kind are Sri Ram v.
Ram Lal ('13) 11 A.L.J. 255 and Muhammad Zafar v. Zahur Husain ('26) 13 A.I.R.
1926 All. 741.
21. Objections
which may be raised to the documentary evidence –
1.
That, the document is irrelevant to
the facts in issue; and / or is inadmissible;
2.
When secondary evidence of the concerned document is led, that, the
execution of the document is not proved in accordance with Section 65 of
Evidence Act, 1872;
3.
That, document is not in the
handwriting or is not signed by the person, alleged to be written or signed;
and / or the document is forged.
22. Kinds
of documents and manner of their proving
a)
To prove due execution of Power of
Attorney – refer section 85, Evidence Act;
b)
To prove email communication /
receipt of or sent to – refer section 85B r/w section 65B;
To prove SMS communications – refer section 88A r/w 65B;
To prove electronic records, electronic signature – refer
section 85B r/w section 65B
To prove “electronic record” which are 5 years old – refer
section 90A;
To prove agreements which are entered into by means of Email
etc – refer section 85A r/w 65B
c)
To prove a document which is 30
years old – refer section 90;
d)
To prove foreign judicial records –
refer section 86
e)
To prove Public documents – refer
section 79 r/w sections 74, 76, 77
f)
To prove records of judicial proceedings
– refer section 80 r/w 33
g)
To prove service of Notices /
documents sent by Regd. Post / Speed post etc. – refer section 114 [ill(e)];
section 27 of General Clauses Act, 1897;
h)
To prove News Reports – refer
section 81
Secondary evidence (S.63, 65)
|
|
|
Proof of Electronic evidence
|
|
|
Proof of Hand writing / Signature
(S.47, 67, 73; S.311A CrPC)
|
|
|
Proof of document 30 years old (S.90)
|
|
|
Proof of meaning of ambiguous
documents (S.93 to 100)
|
|
|
Proof of document which is attested
(S.68 to 71)
|
|
|
Best evidence Rule. (S.91, 92)
|
|
|
Judges power to compel the production
of any document (S.165)
|
|
|
Public documents (S.74, 76, 77, 78,
79)
|
|
|
How a Power of Attorney is said to be
duly proved. (S.85)
|
|
|
Foreign Judicial Records (S.86)
|
|
|
Exhibiting of documents
|
|
23. Electronic Evidence, proving of –
The Complainant may rely upon evidences which are
contained in the form of electronic records such as Email / SMSs / Tape
Recorded conversation / CCTV footage / Whats app chat / any other Electronic
Record. The contents in the said electronic records may be reproduced in the
form of printouts / CD / DVD / any other storage device, and the evidence of
the contents of these electronic records may be given in accordance with
section 65 B of Evidence Act, alongwith a certificate contemplated under the
said section.
2015 AIR
SC 180
Para
15: Any documentary evidence by way of
an electronic record under the Evidence Act, in view of Sections 59 and 65A,
can be proved only in accordance with the procedure prescribed under Section
65B. Section 65B deals with the admissibility of the electronic record. The
purpose of these provisions is to sanctify secondary evidence in electronic
form, generated by a computer. It may be noted that the Section starts with a
non obstante clause. Thus, notwithstanding anything contained in the Evidence
Act, any information contained in an electronic record which is printed on a
paper, stored, recorded or copied in optical or magnetic media produced by a
computer shall be deemed to be a document only if the conditions mentioned
under sub- Section (2) are satisfied, without further proof or production of
the original. The very admissibility of
such a document, i.e., electronic record which is called as computer output,
depends on the satisfaction of the four conditions under Section 65B(2).
Following are the specified conditions under Section 65B(2) of the Evidence
Act:
(i)
The electronic record containing the information should have been produced by
the computer during the period over which the same was regularly used to store
or process information for the purpose of any activity regularly carried on
over that period by the person having lawful control over the use of that
computer;
(ii)
The information of the kind contained in electronic record or of the kind from
which the information is derived was regularly fed into the computer in the
ordinary course of the said activity;
(iii)
During the material part of the said period, the computer was operating
properly and that even if it was not operating properly for some time, the
break or breaks had not affected either the record or the accuracy of its
contents; and
(iv)
The information contained in the record should be a reproduction or derivation
from the information fed into the computer in the ordinary course of the said
activity.
Para
16: Under Section 65B(4) of the Evidence Act, if it is desired
to give a statement in any proceedings pertaining to an electronic record, it
is permissible provided the following conditions are satisfied:
(a)
There must be a certificate which identifies the electronic record containing
the statement;
(b)
The certificate must describe the manner in which the electronic record was
produced;
(c)
The certificate must furnish the particulars of the device involved in the
production of that record;
(d)
The certificate must deal with the applicable conditions mentioned under
Section 65B(2) of the Evidence Act; and
(e)
The certificate must be signed by a person occupying a responsible official
position in relation to the operation of the relevant device.
Para
17: It is further clarified that the
person need only to state in the certificate that the same is to the best of
his knowledge and belief. Most importantly, such a certificate must accompany
the electronic record like computer printout, Compact Disc (CD), Video Compact
Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be
given in evidence, when the same is produced in evidence. All these safeguards
are taken to ensure the source and authenticity, which are the two hallmarks
pertaining to electronic record sought to be used as evidence. Electronic
records being more susceptible to tampering, alteration, transposition,
excision, etc. without such safeguards, the whole trial based on proof of
electronic records can lead to travesty of justice.
Para
18: Only if the electronic record is
duly produced in terms of Section 65B of the Evidence Act, the question would
arise as to the genuineness thereof and in that situation, resort can be made
to Section 45A opinion of examiner of electronic evidence.
Para
19: The Evidence Act does not
contemplate or permit the proof of an electronic record by oral evidence if
requirements under Section 65B of the Evidence Act are not complied with, as
the law now stands in India.
Certificate u/s 65B(4) of Indian Evidence Act,
1872
I, _______,
the in-charge of operation of the concerned computer, do hereby state and
certify as under –
1. I
have seen, perused and verified the email dated ______ sent / received by me,
forwarded / addressed through an electronic mail server, to the addressee, i.e.
to ______ which has also been marked as copy to ____________.
2. I
state and certify that the said email is information contained in an electronic
record.
3.
I state and certify that the above
referred e-mail was sent / received by me, which was to my knowledge at all
times, on my office computer. The said computer is operated by me and was
functioning normally at all times. The document annexed hereto is the identical
copy of the e-mail which had been sent / received to / from _____ / Accused No.___.
4.
I
further state and certify that the
said e-mail relied upon, is true copy/reproduction of the electronic records,
which are regularly fed into / transmitted through the said computer
in the ordinary course of my activities. There is no distortion in the
accuracy of the content of the hard copies of e-mail, which is relied upon in
the present affidavit and produced in the list of documents.
5. I further state
and certify that throughout the material part of the relevant period, my said
computer was operating properly and nothing happened so as to affect the
electronic record or the accuracy of its contents.
6. I
further state and certify that the said email is produced with the help of
appropriate and normal equipment required in normal course to produce them and
the contents of the said email print outs is the same as reflected in my
computer system. The printer used to reproduce the said email is _________.
And whereas I am in full control of the operation
of the concerned computer, the above information is being certified on the
basis of verification of said computer device which I believe is true to the
best of my knowledge and belief.
________
_________
The person In-charge of Computer system
24. By way of illustration, it is
presumed that, a Complainant’s Advocate is carrying out the examination in
chief of the Complainant and his witnesses. Therefore, the Advocate for the
Complainant would call upon the Complainant and his witnesses, one by one, to
enter upon the witness box.
An Oath is administered to the
complainant witness that he would speak nothing but the truth.
Examination in Chief:
Section
137: Examination-in-chief
The examination of a witness by the
party who calls him shall be called his examination-in-chief. Cross-examination.
The examination of a witness by the adverse party shall be called his
cross-examination. Re-examination. The examination of a witness, subsequent to
the cross-examination by the party who called him, shall be called his
re-examination.
Section
138: Order of examinations
Witnesses shall be first
examined-in-chief, then (if the adverse party so desires) cross-examined, then
(if the party calling him so desires) re-examined. The examination and
cross-examination must relate to relevant facts, but the cross-examination need
not be confined to the facts to which the witness testified on his
examination-in-chief. Direction of re-examination. The re-examination shall be
directed to the explanation of matters referred to in cross-examination; and,
if new matter is, by permission of the Court, introduced in re-examination, the
adverse party may further cross-examine upon that matter.
i.
The
questions must only be asked which are strictly relevant to the issue.
Questions must be confined to facts only and no question should be asked on the
point of law; and further that nothing should be asked what the deponent
inferred from the facts. The eliciting or giving of personal opinion by witness
is not permissible, except of a “expert witness”, contemplated u/s 45 of
Evidence Act, 1872.
ii.
The
question in examination in chief should be framed carefully and be put
deliberately to the witness, so as to bring answer just so much you desire and
no more.
iii.
Elicit
opinion is not permissible in examination in chief – AIR 1972 All 308.
iv.
When
the court reject evidence, the party whose evidence is rejected, should ask the
presiding judge to take a note of it. 21 CrLJ 21.
v.
Great
caution is required in examination of other witnesses after the first, to
prevent their disagreement to first testimony.
vi.
If
a direct examination is properly and skillfully conducted, the impression thus
made by an honest witness upon the presiding judge is more lasting than any
argument of the counsel.
vii.
Cases
are often won or lost on the straight forward statement of the parties, and the
natural homely way they sometimes have of putting things.
viii.
Adverse
inference may be drawn against a party for not calling an important witness.
Nagendra Dhar versus Emperor – 38 CrLJ 203.
ix.
Section 144:
Evidence as to matters in writing: Any witness may be asked, whilst under
examination, whether any contract, grant or other disposition of property, as
to which he is giving evidence, was not contained in a document, and if he says
that it was, or if he is about to make any statement as to the contents of any
document, which, in the opinion of the Court, ought to be produced, the adverse
party may object to such evidence being given until such document is produced,
or until facts have been proved which entitle the party who called the witness
to give secondary evidence of it.
x.
Sections 141,
142, 143: Leading questions: Any question suggesting the answer which
the person putting it wishes or expects to receive, is called a leading
question. Section 142: When they must not be asked: Leading questions must not,
if objected to by the adverse party, be asked in an examination-in-chief, or in
a re-examination, except with the permission of the Court. The Court shall
permit leading questions as to matters which are introductory or undisputed, or
which have, in its opinion, been already sufficiently proved. Section 143: When
they may be asked: Leading questions may be asked in cross-examination.
Cross Examination:
i.
Cross
examination is said to be one of the most efficacious tests, which the law has
devised for the discovery of truth. AIR 1936 PC 63.
ii.
In
dealing with a witness who is to be compelled to speak the truth against his
will, the greatest success lies in drawing out what he wishes to keep. This can
only be done by repeating the interrogation in greater detail. He will give
answers which he thinks do not hurt his cause; and afterwards from many things
he will have confessed, he may be led into such a strait, that what he will not
say, he cannot deny.
iii.
For
as in an oration, we generally collect scattered parts, which singly do not
appear to press on the accused/ witness, yet by being put together, prove the
charge. So the witness of this sort should be asked many things as what went
before, what came after, as to place, time and person, and other things, so that
he must fall upon some answer after which he must necessarily either confess
what is desired or would contradict his former statement. If this doesn’t
happen, the judge may be led to suspect him, being unworthy of a man to rely on
his testimony.
iv.
A
witness on his examination in chief discloses but a part of the necessary
facts. That which remains suppressed or undeveloped may be of two sorts, (a)
the qualifying circumstances of the subject of testimony; (b) the facts which
would diminish and impeach the personal trustworthiness of the witness.
v.
If
cross examination is a powerful engine, it is likewise an extremely dangerous
one, very apt to reveal even on those who know how to use it.
vi.
The
object of cross examination is to impeach the accuracy, credibility and general
value of the evidence, given in chief, to detect discrepancies, to elicit
suppressed facts.
vii.
A
witness should be cross examined on each and every point. If a party fails to
cross examine him / her on a particular point, it would entail a presumption
that party not cross examining the witness had accepted such evidence – 2015
CrLJ 4303 Jhar; (1987) 91 Cal WN 844; (1985) 28 Del LT 360; 1969 CrLJ 1002; AIR
1969 Raj 219; AIR 1961 Cal 359.
viii.
Section 145:
Cross-examination as to previous statements in writing
A witness may be
cross-examined as to previous statements made by him in writing or reduced into
writing, and relevant to matters in question, without such writing being shown
to him, or being proved; but, if it is intended to contradict him by the
writing, his attention must, before the writing can be proved, be called to
those parts of it which are to be used for the purpose of contradicting him.
ix.
Sections 141,
142, 143: Leading questions: Any question suggesting the answer which
the person putting it wishes or expects to receive, is called a leading
question. Section 142: When they must not be asked: Leading questions must not,
if objected to by the adverse party, be asked in an examination-in-chief, or in
a re-examination, except with the permission of the Court. The Court shall
permit leading questions as to matters which are introductory or undisputed, or
which have, in its opinion, been already sufficiently proved. Section 143: When
they may be asked: Leading questions may be asked in cross-examination.
Some
tips for person going into witness box for his cross examination
1.
If
the cross examining lawyer alleges anything absurd or falsity – say “it is not
correct”
2.
If
you do not understand any question or proposition put forward – ask again,
unless you understand it fully.
3.
If
the cross examining lawyer ask anything you don’t know – say “I don’t know”.
4.
If
the cross examining lawyer makes any false suggestion – say “it is not correct”
5.
If
the cross examining lawyer ask to produce any document – say “I will take
advice of my lawyer”
6.
If
you are being cross examined in respect of any document – before answering the
question, with the permission of the court, you are permitted to look into the
contents of the said document.
7.
When
a question is put forward by the cross examining lawyer, answer the question to
the judge and not to the said lawyer.
8.
Stick
to the facts of the case. It must be secured that you do not contradict to what
is stated in the complaint / evidence / examination in chief. Do not worry
about minor contradictions.
9.
Once
the cross is complete, obtain the copy immediately from the court and see that
your answers are correctly recorded; and if there is any statement not
correctly recorded, brought this immediately to the notice of your lawyer; and
he will tell the court accordingly.
Re-examination:
i.
Re-examination
is provided in the law for the purposes of explaining matters referred in cross
examination; and if any new matter is introduced in Re-examination, the
adversary is further entitled for cross examination.
ii.
The
object of Re-examination is to clear ambiguities that have arisen upon cross
examination. AIR 1937 All 171; (1999) 8 SCC 649; AIR 1964 SC 1963.
David
Paul Brown’s golden Rules
i.
The
object of examination in chief is to get from the witness all material facts
within his knowledge relating to the case.
ii.
Never
begin if you are not ready.
iii.
If
you are finished. Stop it. Don’t ask for the sake of asking.
iv.
Modulate
your voice as the circumstances warrant; inspire the fearful and repress the
bold.
v.
Speak
to your witness clearly and distinctly as if you were awake and engaged in a
matter of interest; and make him also speak distinctly to your question.
vi.
Never
object to a question of your adversary unless you are well prepared to enforce
your objection.
vii.
Never
ask a question without an object. The question must well be connected with the
case.
viii.
If
witness is bold and may injure your case by pertness or for wardness, observe a
gravity and ceremony of manner towards them, which may be calculated to repress
their assurances.
ix.
If
they are alarmed of diffident and their thoughts are evidently scattered,
commence your examination with matters of familiar character, remotely
connected with the subject of the alarm. For example, where do you live. Do you
know the parties. And when you have restored them to their composure, proceed
to essential feature of the case.
25. Please find hereinbelow some illustration as to
proving of an document. Make changes as applicable to the facts of the case.
Proving
Email:
I say that I have sent / received an
email dated _______ from /to my email ________ to / from Accused No.____ / any other person, Email ______ Subject:
___________, inter alia, that ___________ ; and the said email was also made
copy to __________.
I say that the aforesaid Email was sent
/ received by me in the regular course of my business, and is produced by my
office computer and having lawful control over the use of that computer, during
the period over which my said computer was regularly used to store or process
information for the purpose of sending and receiving Emails and other business
activity;
I further say that my said Computer,
which contains the said Email, was regularly receiving and sending such Email
in the ordinary course of the sending and receiving Emails and other business
activity;
I further say that during the material
part of the period when the said Email was sent / received, and reproduced now,
my said computer was operating properly;
I further say that the said Email print
out is the reproduction of the Email which was sent / received by me through
the said computer in the ordinary course of the sending and receiving Emails
and other business activity;
I am producing the print out of the
aforesaid Email dated _______, alongwith the Certificate as required u/s
65B(4), the contents of which are true and correct, and the same may be taken
on record and marked as Exhibit.
Proving
receipt of acknowledgment by any person of any document:
I say that I have handed over the
________ (description of the document) to _________. I say that said ________ duly acknowledged
the receipt, by putting the rubber stamp of “ ___________” over the said
document, and endorsed his signature over the said document.
Proving
the execution of power of Attorney by the complainant:
I say that the complainant ________,
because of he ________, he is unable to attend the court proceedings, and
therefore the said complainant has executed a Power of Attorney in my favour.
The donor of power, i.e. the complainant herein has put his left hand thumb
impression before the Notary, in my presence on the said power of Attorney. The
passport size photograph of said donor is also pasted on the right hand side of
his said left thumb impression. I say that complainant and I both signed before
the Notary over the said Power of Attorney. I further say that the Notary Mr.
_________ recorded the execution of said Power of Attorney and have assigned
Register No._____ dated ______ to the said Power of Attorney. I herewith
produce the true copy of said Power of Attorney, the contents of which are true and correct and same may be taken
on record and marked as Exhibit.
Proving
the execution of Bill of exchange
I say that at the time of lending money
to Accused No. ____ for Rs.____, as agreed and in discharge of their liability
accrued under the said financial assistance / loan, the said Accused No.___,
executed and handed over a Bill of Exchange for Rs. ________. I say that
Accused No.____ signed over the said Bill of exchange in my presence, and has
also signed at Notice of Dishonour Waived; and Accused No.___ imposed / affixed
/ inscribed the Rubber Stamp of Accused No.___ over the said Bill of Exchange.
I say that Accused No. ____ accepted the said Bill of exchange and has also
signed over the said Bill of exchange in my presence. I say that Accused No.
____ handed over to me the said Bill of Exchange, which did not bear the name
of the Payee and the date; and therefore I have filled up the date and my name
on the said Bill of Exchange as ______ and date ______. I produce the original
Bill of Exchange dated _____. I say that the contents of the said Bill of
Exchange are true and correct and same may be taken on record and marked as Exhibit.
I say that it is permissible under section 20 of Negotiable Instruments Act,
1881.
Proving
the cheque:
I say that Accused No._____ in discharge
of his liability accrued under the ________ issued a cheque No.______ drawn on
________, Branch, _______ for Rs._______, bearing my name on the said cheque. I
say that said Accused No. ____ signed in
my presence over the said cheque. I say that said Accused No. ____ / any other
person handed over to me the said cheque / sent the said cheque by courier to
me. I say that the said cheque did not bear the name of the payee, nor any
date; and therefore I have filled up my name and the date on the said cheque. I
say that it is permissible under section 20 of Negotiable Instruments Act,
1881. I produce the original cheque bearing No.______, dated ___________, drawn
on _______ Bank, for Rs.___________, the contents of which are true and
correct, and the same may be taken on record and marked as Exhibit.
Bank
Memo:
I say that I deposited the said cheque
No._____, on _____ with my Account maintained with _________ Branch _____. I
say that my Bank vide its Memo dated
______ intimated to me that the said cheque is returned unpaid for the reason
"Exceeds Arrangement / Funds Insufficient". I produce the original
Bank Memo, which also bears the image of the dishonoured cheque, the contents
of which are true and correct, and the same may be taken on record and marked
as Exhibit.
Statutory
Notice:
I say that, thereafter I have through my
Advocate _________, issued a Statutory Demand Notice dated ________, addressed
at the last known and correct address of Accused No.___, and also to Accused
Nos._____ herein, and inter alia, called upon all the Accused, to pay the
cheque amount, within 15 days from the receipt of Notice. I produce the office
copy of said Notices sent to all the Accused herein, the originals being in the
possession of respective Accused; and I identify the signature of my Advocate;
and the contents of which are true and correct, and the same may be taken on
record and marked as Exhibit.
Proving
of despatch of statutory Notice by Speed Post / Regd Post / Courier Receipt
I say that the said demand notices were
sent to all the Accused through Speed Post / Regd Post / Courier, vide Receipt
Nos. ___________ dated ________. I produce the said original Speed Post / Regd
Post / Courier Receipt dated _________, the contents of which are true and
correct, and the same may be taken on record and marked as Exhibit.
Proving
of receipt of statutory Notices
I say that the aforesaid demand notices
sent through Speed Post / Regd Post / Courier Receipt were duly received by all
the Accused on about _______. I produce the extract of online Report of India
Post, evidencing the delivery of concerned speed post article to Accused Nos.______,
the contents of which are true and correct and the same may be taken on record
and marked as Exhibit. I also produce the A/D cards received under Speed Post /
Regd Post article sent to Accused Nos._________, the contents of which are true
and correct and the same may be taken on record and marked as Exhibit.
Proving
that accused directors are in-charge of day to day affairs of business of the
accused company (if applicable to the facts of the case)
I say that, in statutory Notice dated
_________ to Accused Nos._______, it was expressly stated that Accused
Nos.______ are in charge of, and are responsible to Accused No.1 company for
the conduct of the business of the Accused No.1 company; and this fact is not
disputed by either of the Accused. I say that that none of the Accused have
made any reply to the Notices sent to them; and all the contentions set out in
the said notice have remained uncontroverted and unchallenged.
Proving
admission of liability
I say that I have all along, coordinated
with Accused No.____ for the payment of the _________. I further say that
Accused No. ____ has unambiguously admitted their liability towards the
___________, wherein Accused No. ____has sent an email _____, dated _____to
______, Subject: ________, inter alia, that, __________ thereby clearly
admitting their liability. [Proving
Email: Necessary averments in the Affidavit: (Reproduce stated hereinabove)]
Proving
consent, connivance and neglect of accused, as contemplated u/s 141(2) of the
Negotiable Instruments Act, 1881
I further say that, I have repeatedly
followed up for the payment, and tried to reach out Accused No. ____, but
Accused No.____ neglected to make payment. I therefore say that, having regard
to the facts of the case, and having regard to the nature of conduct of Accused
No.____, the consent, connivance and neglect, as contemplated u/s 141(2) of the
Negotiable Instruments Act, 1881, should also be attributed towards Accused
No.___.
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Comments
Extremely useful in understanding the concept of evidence and exhibiting it.
Thank you,