PRESUMPTION AS TO DOCUMENTS UNDER INDIAN EVIDENCE ACT, 1872

[Mr. M. GOVINDARAJAN]

Document

Section 3 of the Indian Evidence Act, 1872 (‘Act’ for short) defines the term ‘document’ as 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.

Presumption

In MS NARAYANA MENON @ MANI VERSUS STATE OF KERALA & ANR. – 2006 (7) TMI 576 - SUPREME COURT the Supreme Court held that a presumption is a legal or a factual assumption drawn from the existence of certain facts.  Presumption raised under the Statute only has an evidentiary value.

The presumption is of two types-

• May presume – the Court may presume a fact, it may either regard such fact as proved, unless it is disproved, or may call for proof of it;
• Shall presume – the Court shall presume a fact, it shall regard such fact as proved, unless and until it is proved.

Shall presume

The following sections of Evidence Act, 1872 provides that the Court shall presume as proved-

• Section 79 – Presumption as to genuineness of certified copies;
• Section 80 – Presumption as to documents produced as record of evidence;
• Section 81 – Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents;
• Section 81A – Presumption as to Gazettes in electronic forms;
• Section 82 – Presumption as to document admissible in England without proof of seal or signature;
• Section 83 – Presumption as to maps or plans made by Authority of Government;
• Section 84 – Presumption as to collections of laws and reports of decisions;
• Section 85 – Presumption as to powers of attorney;
• Section 85A – Presumption as to electronic agreements;
• Section 85B – Presumption as to electronic records and electronic signatures;
• Section 85C – Presumption as to electronic signature certificates.
• Section 89 – Presumption as to due execution etc., of documents not produced

Presumption as to genuineness of certified copies

Section 79 provides that the court shall presume to be genuine every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any evidence of any particular fact, and which purports to be duly certified by any officer of the Central Government or of a State Government who is duly authorized thereto by the Central Government.  Such document is substantially in the form and purports to be executed thereto by the Central Government.  The Court shall also presume that any officer by whom such document purports to be signed or certified, held, when he signed it, the official character which he claims in such paper.

Presumption as to documents produced as record of evidence

Section 80 provides that whenever any document is produced before the Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law and purporting to be signed by any Judge or Magistrate, or by any such Officer as aforesaid, the Court shall presume that-

• the document is genuine;
• any statements as to the circumstances under which it  was taken, purporting to be made by the person signing it are true; and
• such evidence, statement or confession was duly taken.

This section does not deal with the question of admissibility.  It dispenses with the necessity of a formal proof by raising the statutory presumption.

Presumption as to Gazettes, newspapers and other documents

Section 81 provides that the Court shall presume the genuineness of every document purporting to be the Official Gazette or to be a newspaper or journal or every document purported to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.

The newspaper report is admissible in evidence if the maker is examined.  Newspaper report is per se do not constitute legally acceptable evidence as held in ‘B.Singh v. Union of India’ – AIR 2004 SC 1923.

Presumption as to Gazettes in electronic forms

Section 81A was inserted by the Information Technology Ac, 2000 with effect from 17.10.2000.  This section provides that the Court shall presume the genuineness of every electronic record purporting to be the Official Gazette, or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody.

Presumption as to document admissible in England without proof of seal or signature

Section 82 provides that when any document is produced before any Court, purporting to be a document which, by the law in force for the time being in England or Ireland, would be admissible in proof of any particular in any Court of Justice in England or Ireland without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed, the Court shall presume that such seal, stamp or signature is genuine and that person signing it held, at the time when he signed it, the judicial or official character which he claims and the document shall be admissible for the same purpose for which it would be admissible in England or Ireland.

The Calcutta High Court, in one case decided during the year 1967, held that an affidavit, sworn before a Notary Public in USA certified under seals of County Clerk and the Clerk of the Supreme Court, New York, forwarded under certificate of Consulate General of India in New York, is authentic and admissible in evidence.

Presumption as to maps or plans made by Authority of Government

Section 83 provides that the Court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made and are accurate; but maps or plans made for the purposes of any clause must be proved to be accurate.

The plan signed by the Executive Engineer and SDO is presumed to be genuine.  No presumption of accuracy is available about maps prepared by a private person without the authority of the Government.

Presumption as to collections of laws and reports of decisions

Section 84 provides that the Court shall presume the genuineness of every book, purporting to be printed or published under the authority of the Government of any country, and to contain any of the laws of that country and of every book purporting to contain reports of the decisions of the Courts of such country.

The report of a judicial pronouncement appearing in a newspaper has no presumption under section 84.

Presumption as to powers of attorney

Section 85 provides that the Court shall presume that every document purporting to be a power of attorney and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul or representative of the Central Government, was so executed and authenticated.

Presumption as to electronic agreements

Section 85A was inserted by the Information Technology Act, 2000 with effect from 17.10.2000.  This section provides that every electronic record purporting to be an agreement containing the electronic signatures of the parties was so concluded by affixing the electronic signature of the parties.

Presumption as to electronic records and electronic signatures

Section 85B was inserted by the Information Technology Act, 2000 with effect from 17.10.2000.  The said section provides that in any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time which the secure status relates.

In any proceedings, involving secure electronic signature, the Court shall presume unless the contrary is proved that-

• the secure electronic signature is affixed by subscriber with the intention of signing or approving the electronic record;
• except in the case of a secure electronic record or a secure electronic signature, nothing in this section shall create any presumption relating to authenticity and integrity of the electronic record or any electronic signature.

Presumption as to electronic signature certificates

Section 85C was inserted by the Information Technology Act, 2000 with effect from 17.10.2000.   The said section provides that the Court shall presume, unless contrary is proved, that the information listed in a Electronic Signature Certificate is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber.

Presumption as to due execution etc., of documents not produced

Section 89 provides that the Court shall presume every document, called for and not produced after notice to produce, was attested, stamped   and executed in the manner required by law.

May presume

The following sections of Evidence Act, 1872  provides that the Court may presume a fact either regard as proved, unless and until it is disproved or may call for proof of it-

• Section 86 – Presumption as to certified copies of foreign records;
• Section 87 – Presumption as to books, maps or charts;
• Section 88 – Presumption as to telegraphic messages; (now telegraph system is not in vogue);
• Section 88A – Presumption as to electronic messages;
• Section 90 – Presumption as to documents thirty years old; and
• Section 90A – Presumption as to electronic records five years old.

Presumption as to certified copies of foreign records

Section 86 provides that the Court may presume that any document purported to be a certified copy of any judicial record of any country not forming part of India or of Her Majesty’s Dominions is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of the Central Government in or for such country to be the manner commonly in use in that country for that certification of copies of judicial records.

An Officer who, with respect to any territory or place not forming part of Indian or Her Majesty’s Dominions, is a Political Agent therefore, as defined in Section 3(43) of the General Clauses Act, 1897 shall, for the purposes of this section, be deemed to be a representative of the Central Government in and for the country comprising that territory or place.

Here are some of the points of the High Court/Supreme under this section-

• A foreign judgment is not admissible in evidence in the absence of the certificate.
• In order to raise the presumption, admission of judgment in evidence does not become a condition precedent.
• Certified copy of a decree of a High Court filed in a court beyond the jurisdiction of the said High Court.   Presumption of genuineness is available in spite of the absence of certificate under section 86.

Presumption as to books, maps or charts

Section 87 provides that the Court may presume that any book to which it may refer for information on matters of public or general interest, and that any published map or chart, the statements of which are relevant facts, and which is produced for its inspection, was written and published by the person, and at the time and place, by whom or at which it purports to have been written or published.

Presumption as to telegraphic messages

 Now the telegraph system is not in vogue.  However section 88 is discussed for the information of the readers.   It may be helpful for any past case.

Section 88 provides that the Court may presume that a message, forwarded from a telegraph office to the person 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 send; but the Court shall not make any presumption as to the person by whom such message was delivered for transmission.

The presumption under this section is available for radio message as held by the Orissa High Court in AIR 1966 Ori. 150.

Presumption as to electronic messages

Section 88A was inserted by the Information Technology Act, 2000 with effect from 17.10.2000.  The said section provides that 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.

Presumption as to documents thirty years old

Section 90 provides that where any document, purporting or proved to be 30 years old, is produced from any custody which the court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting, and, in the case of document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

The documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.

Illustrations

• A has been in possession of landed property for a long time.  He produces from his custody deeds relating to the land, showing his titles to it.  The custody is proper.
• A produces deeds relating to landed property to which he is the mortgagee.  The mortgagor is in possession.  The custody is proper.
• A, a connection of B, produces deeds relating to land in B’s possession which were deposited with him by B for safe custody.  The custody is proper.

The presumption under this section is a rebuttable presumption.   This presumption does not attach to anonymous documents as held by Madras High Court in AIR 1939 Mad 926.

Presumption as to electronic records five years old

Section 90A was inserted by the Information Technology Act, 2000 with effect from 17.10.2000.  The said section provides that where an electronic record, purporting to be proved to be 5 years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the electronic signature which purports to be the electronic signature of any particular person was so affixed by him o any person authorized by him in this behalf.

The electronic records are said to be in proper custody if they are in the place in which and under the care of the person with whom, they naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probable.