Signed carbon copy prepared in the same process as the original document assumes the character of the original document

This appeal is directed against the judgment dated 15.01.2009 passed by the Punjab and Haryana High Court dismissing the appeal holding that there is no substantial question of law involved. The High Court held that a carbon copy of a document which carbon copy is signed by both the parties cannot be termed as an original document under Section 62 of the Evidence Act. This finding of the High Court is absolutely incorrect and against the provision of Section 62 of the Evidence Act. This carbon copy was prepared in the

same process as the original document and once it is signed by both the parties, it assumes the character of the original document.[Para No.1]

Trial Judge has to seek explanation from the advocate orally while deciding the relevancy of question asked in cross examination rather than entirely putting the shutter down while disallowing of the questions

Decision of this Court in Yeshpal Jashbhai Parikh v/s. Rasiklal Umedchand Parikh, reported in 1954 SCC OnLine Bom 145 : (1955) 57 Bom LR 282, is also relevant on the point involved in the petition. Note of certain earlier decisions right from Privy Council were taken. In Vassiliades v/s. Vassiliades, reported in [1945] AIR PC 38 it was observed that ;

"No doubt cross-examination is one of the most important processes for the elucidation of the facts of a case and all reasonable latitude should be allowed, but the Judge has always a discretion as to how far it may go or how long it may continue. A fair and reasonable exercise of his discretion by the Judge will not generally be questioned".[Para No.14]

    In Yeshpal's case (Supra) it has been observed that, "While Courts will not ordinarily interfer with the proper exercise of the right of cross-examination the Courts have the power and authority to control the cross-examination of a witness".

    This Court is not agreeing with the submission by learned Advocate for petitioners that, the Court cannot control the cross-examination or he has free hand at the time of cross-examining the witness of the prosecution; but then agree to the submission that the cross- examination need not be restricted to what the witness has stated in his examination-in-chief. A balance has to be struck here while issuing directions to the learned Additional Sessions Judge that he has to decide the relevancy of the question which he may 

get explained from the learned advocate for the accused orally and then allow him to put the said question to the witness. On any count learned Additional Sessions Judge will not be justified in entirely putting the shutter down while disallowing of the questions and asking the defence advocate to restrict himself while cross- examining P.W.18 to the post mortem examination report Exhibit 216, sketch Exhibit 217 and certificate Exhibit 218. It is, therefore, again clarified that neither the learned advocate for the accused has unfettered right to put any question to the witness in the cross- examination but at the same time the learned Additional Sessions Judge shall also not restrict him in putting questions in the cross to the above referred documents only. There might be certain questions which would be beyond those documents and as an expert they are required to be elucidated from him. No straight jacket formula can be laid down as to what should be permitted and what should not be permitted as it depend upon the question that would be put and the relevancy and admissibility of the same and / or of the admissibility will have to be decided at that time. Definitely the learned Additional Sessions Judge is guided by the procedure laid down in Bipin Panchal's case (Supra), and it is specifically laid down that, it may be advantages for the Appellate Court in future. He has to bear those advantages which have been laid down in para No.15 of the case, in mind while recording the evidence.[Para No.15]

Sub-Registrar cannot refuse registration of document only on the ground that the title of the transferor, in his opinion, is defective

Learned APP submitted that the 7/12 extracts of the lands which were transferred showed the words "Akari Pad" in the occupant's column which indicate that the lands belonged to the government. Sub-Registrar ought to have verified the 7/12 extracts (revenue records) and should have refused the registration of the sale deeds. Selling the government lands amounted to a fraud on the government and by registering the sale deeds without verification of revenue records the applicant has committed an offence. It is settled principle of law that entries in the revenue records (7/12 extracts in case of agricultural lands and property register cards in case of urban lands) are made for fiscal purposes. They do not confer nor take away the title. Entries in the 7/12 extracts, though may have some presumptive value under the Maharashtra Land Revenue Code, are not by themselves proof of title nor do they confer title. Therefore, the mere fact that the properties were shown as "Akari Pad" that by itself was not the proof that the government was the owner of the lands. Even assuming that the government was the owner of the lands, as I have already indicated earlier section 34 of the Act does not require nor does it empower the Sub-Registrar to enquire into the title and to satisfy himself about the title of the transferor. Under the Act the Sub-Registrar is not required, nay not entitled, to ask the transferor to produce 7/12 extracts, property register extract or the like showing the transferor to be the owner of the property.

If he refuses registration of a document on the ground that the revenue records do not show the name of the transferor as the owner he would be exceeding his powers under the Act. If all other requirements of registration prescribed by the Act and the Rules are complied with, the Sub-Registrar cannot refuse the registration of a document only on the ground that the title of the transferor, in his opinion, is defective, or that the name of transferor is not shown as owner in the revenue records.[Para No.5]

Oral evidence can be given about any fact which would invalidate or contradict the proved or registered document

In respect of registered document (Exh.35), learned Counsel for the appellant has submitted that it is a registered document and therefore, contents therein cannot be contradicted. Sections 91 and 92 of the Indian Evidence Act are material sections in respect of oral evidence of the documents reduced into writing. If the document is proved as per Section 91, then oral evidence as per Section 92 is not permitted to contradict the document but proviso (1) of Section 92 permits to contradict the document. It reads as under :

 92.Exclusion of evidence of oral agreement.-When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: 

     Proviso  (1). - Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law.[Para No.16]

    As per Section 92 Proviso (1), evidence can be adduced to contradict the document. Learned Counsel for the respondents has pointed out the decision in the case of Vithal Saidu Lokhande (cited supra). This Court has held that oral evidence as per the provisions of Section 92 Proviso (1) is applicable and the defendants can adduce the oral evidence to contradict the document. This Court in the case of Vithal Saidu Lokhande (cited supra) has held that "Plea to invalidate any document proved in accordance with section 91 is available where a case is made out of fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. It is further held that "proviso (1) of Section 92 permits leading of parol evidence of any fact which would invalidate any document, at the instance of any party to such document of their representatives in interest. Proviso (4) does not deal with the question of invalidating any document but it relates to the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property. It makes the parol evidence admissible to show that the prior written contract has been waived or replaced by subsequent oral agreement with a rider that, if a matter has been reduced into writing because the law requires it to be in writing for its validity, no oral evidence can be given of any subsequent agreement, rescinding or modifying it. It can only be waived, rescinded, modified or altered by another written agreement of equally solemn character. The rule applies to all registered instruments, whether or not, registration is compulsory under the law. "[Para No.17]

Mere proof of handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document

Incidentally it was urged by Mr. Majumdar that even if the court proceeds on the assumption that the letter and the cable were received, it is not open to this Court to look into the contents of the letter and the cable because the contents are not proved as the Managing Director of the appellant company who is supposed to have signed the letter and the cable has neither entered the witness box nor filed his affidavit proving the contents thereof. Reliance was placed on Judah v. Isolyne Bose. In that case a letter and two telegrams were tendered in evidence and it was observed that the contents of the letter and the telegram were not the evidence of the facts stated therein. The question in that case was whether the testatrix was so seriously ill as would result in impairment of her testamentary capacity. To substantiate the degree of illness, a letter and two telegrams written by a nurse were tendered in evidence. The question was whether in the absence of any independent evidence about the testamentary capacity of the testatrix the contents of the letter could be utilised to prove want of testamentary capacity.

Obviously, in these circumstances the Privy Council observed that the fact that a letter and two telegrams were sent by itself would not prove the truth of the contents of the letter and, therefore, the contents of the letter bearing on the question of lack of testamentary capacity would not be substantive evidence. 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 vouch safe 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 No.16]

U/s. 62 of The Indian Evidence Act, carbon copies can be taken into consideration as primary evidence

Briefly stated case of the prosecution is that the respondent was running a medical shop viz., M/s. Sri Balaji Medicals. On the directions issued by the Assistant Director of Drugs Control, Salem Zone, the Drugs Inspectors had inspected the respondent's medical shop on 17.12.2008. In the course of inspection, it was found that certain drugs were stored without a valid drug licence and the same were seized. A memo dated 22.12.2008 had been issued to the respondent-accused alleging contravention of section 18(c) of the Drugs and Cosmetics Act, 1940. The respondent had caused reply (Ex.-P4) to the said memo without furnishing details of purchase. The Drug Inspector has fled a charge sheet against the respondent informing commission of offence punishable under Sections 27(b) (ii) and 28 of the Drugs and Cosmetics Act, 1940. Upon consideration of evidence, the trial court after referring to Ex.-P4 held that the respondent has admitted that he has no licence to the premises for sale of drugs. The trial court further held that Exs.P-4 to P-7 though were carbon copies, as per section 62 of the Indian Evidence Act, they can also be considered as primary evidence. On those findings to, the trial court convicted the respondent and sentenced him to undergo rigorous imprisonment for one year and imposed fne of Rs. 5000/- under Section 27(b)(ii) of the Drugs and Cosmetics Act and fne of Rs. 500/- under section 28 of the Drugs and Cosmetics Act. Aggrieved by the verdict of conviction and the sentence of imprisonment, respondent-accused preferred an appeal in Criminal Appeal No.18 of 2013 before the appellate court-Principal Sessions Judge, Krishnagiri which was dismissed vide order dated 29.08.2013.[Para No.3]

    Per contra, the learned counsel for the respondent has submitted that the prosecution has failed to prove that the respondent is the owner of M/s Sri Balaji Medicals and the non-examination of Kamalakannan and Jayanthi was fatal to the prosecution case. Learned counsel further submitted that the alleged statement of the respondent in Exs.P-4, P-7 and P-10 relied upon by the prosecution were only carbon copies and the courts below could not have based the conviction upon Exs.P-4, P-7 and P-10 and that the High Court has rightly reversed the same.[Para No.6]

    Learned counsel for the respondent has submitted that Exs.P-4 and P-7, that is, the statements of respondent were only carbon copies and that admission of such carbon copies raises serious doubt about the prosecution case. As pointed out by the trial court as well as by the first appellate court, under section 62 of the Indian Evidence Act, carbon copies can be taken into consideration primary evidence and we find no infirmity in admitting carbon copies of those documents.[Para No.14]

Sale-deed is not a public document but the entry in the register book is a public document

Let us see whether section 31(2) makes any difference to this position in law. According to the judgment in Aliens Developers (supra), the moment a registered instrument is cancelled, the effect being to remove it from a public register, the adjudicatory effect of the Court would make it a judgment in rem. Further, only a competent court is empowered to send the cancellation decree to the officer concerned, to effect such cancellation and “note on the copy of the instrument contained in his books the fact of its cancellation”. Both reasons are incorrect. An action that is started under section 31(1) cannot be said to be in personam when an unregistered instrument is cancelled and in rem when a registered instrument is cancelled. The suit that is filed for cancellation cannot be in personam only for unregistered instruments by virtue of the fact that the decree for cancellation does not involve its being sent to the registration office – a ministerial action which is subsequent to the decree being passed. In fact, in Gopal Das v. Sri Thakurji, AIR 1943 PC 83, a certified copy of a registered instrument, being a receipt dated 29.03.1881 signed by the owner, was held not to be a public record of a private document under section 74(2) of the Indian Evidence Act, 1872 for the reason that the original has to be returned to the party under section 61(2) of the Registration Act, 1908 (see p. 87). This judgment has been followed in Rekha v. Ratnashree, (2006) 1 MP LJ 103 by a Division Bench of the Madhya Pradesh High Court, in which it was held:

“8. A deed of sale is a conveyance. A deed of conveyance or other document executed by any person is not an act nor record of an act of any sovereign authority or of any official body or tribunal, or of any public officer, legislative, judicial and executive. Nor is it a public record kept in a State of any private documents. A sale-deed (or any other deed of conveyance) when presented for registration under the Registration Act, is not retained or kept in any public office of a State after registration, but is returned to the person who presented such document for registration, on completion of the process of registration. An original registered document is not therefore a public record kept by a State of a private document. Consequently, a deed of sale or other registered document will not fall under either of the two classes of documents described in section 74, as ‘public documents’. Any document which is not a public document is a private document.

    We therefore have no hesitation in holding that a registered sale-deed (or any other registered document) is not a public document but a private document.

When secondary evidence can be permitted to be adduced

In what situation secondary evidence can be permitted to be adduced? Does such permission amounts to proof of that document?

   Sec.65 and 66 of Evidence Act - Proof by leading secondary evidence - Original will deposited to revenue officers for registration - notice issued to revenue officers for production of original will - they failed - court rejected permission to allow secondary evidence observing that the pre-requisite condition of existence of Will is not proved, hence Will cannot be permitted to be proved by allowing the secondary evidence - Witness deposed “I have seen the Will dated 24.01.1989 which bears my signature as scribe and as well as witness.”

Disability Certificate is a public document which can not be doubted

 Motor Vehicle Accident Claim - how to appreciate Disability Certificate and how to fix quantum of compensation?

    Disability certificate issued by the Medical Board of Government Medical College is a public document, it cannot be doubted.

   The disablement certificate issued by the Medical Board of a Government Medical College is a public document. The disablement of 50% as in the certificate is to be supported by other evidence either documentary or oral for the purpose of strengthening the cause before an appropriate court of law.[Para No.24 & 25] 

    The law with respect to the grant of compensation in injury cases is well-settled. The injured is entitled to pecuniary as well as non-pecuniary damages. Pecuniary damages also known as special damages are generally designed to make good the pecuniary loss which is capable of being calculated in terms of money whereas non-pecuniary damages are incapable of being assessed by arithmetical calculations. The pecuniary or special damages, generally include the expenses incurred by the claimants on his treatment, special diet, conveyance, cost of nursing/attending, loss of income, loss of earning capacity and other material loss, which may require any special treatment or aid to the insured for the rest of his life. The general damages or the non-pecuniary loss include the compensation for mental or physical shock, pain, suffering, loss of amenities of life, disfiguration, loss of marriage prospects, loss of expected or earning of life, inconvenience, hardship, disappointment, frustration, mental stress, dejectment and unhappiness in future life, etc.[Para No.9]

Photocopy of documents can not be impounded by civil court

Suit for eviction of tenant - tenant in his evidence produced photocopy of rent agreement - Landlord denied the same and objected - notice to produce the document was issued, but, landlord denied the very existence of rent agreement - document is not exhibited - Appellate court  impounded the photocopy of agreement to the payment of requisite stamp duty and penalty thereon and further ordered that after payment of the requisite stamp duty and penalty on the said document it be exhibited for the collateral purpose.

   Section 2(l) of the said Act, defines "instrument" and it reads as follows :

"instrument" includes every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded, but does not include a bill of exchange, cheque, promissory note, bill of lading, letter of credit, policy of insurance, transfer of share, debenture, proxy and receipt;"

   A perusal of the said definition makes it clear that an "instrument" under the said Act is a document by which any right or liability is created or extinguished. Such a document would necessarily be the original of the said document and in this context, when Section 32(A) of the said Act is perused, it refers to "instrument" of conveyance, exchange, gift, etc. In a situation, where there is a short fall in payment of stamp duty, the Collector of the District has to give the parties concerned a reasonable opportunity of being heard and then determine the difference of amount of duty payable along with penalty and on payment of such amounts, "instrument" received shall be returned to the officer or the person concerned.