Existence of Course of Business under Section 14 of the Bharatiya Sakshya Adhiniyam, 2023: Meaning, Illustrations and Presumption of Regularity

Routine is evidence. Where an act is one of a class performed daily, in a settled order, by persons who cannot afterwards recall the individual instance, the ordinary methods of proof break down. Section 14 supplies the answer: the existence of a course of business according to which the act naturally would have been done is itself a relevant fact. It is the last of the closely connected facts and the shortest head of relevancy in the Adhiniyam.

1. The Provision

Section 14, BSA — Existence of course of business when relevant

When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact.

Section 14 corresponds to Section 16 of the Indian Evidence Act and is carried forward unchanged. It closes the group of provisions headed 'Closely connected facts', which runs from Section 4 to Section 14, before the Adhiniyam turns to admissions in Section 15.

1.1 The Illustrations

Illustration	Question	What is relevant
(a)	Whether a particular letter was despatched	The facts that it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that that particular letter was put in that place, are relevant
(b)	Whether a particular letter reached A	The facts that it was posted in due course and was not returned through the returned-letter office are relevant

The two Illustrations together show the structure of the reasoning. Illustration (a) establishes the course of business and the placing of the letter into it. Illustration (b) shows the inference carried forward: once the letter has entered a reliable system, the absence of any indication of failure supports the conclusion that the system worked as it ordinarily does.

2. The Reasoning Behind the Section

The section answers a practical difficulty of proof. A clerk who despatches four hundred letters a day cannot depose that he despatched the particular letter in question, and a witness who honestly claimed to remember it would be treated with suspicion. What the clerk can depose to is the system: where letters are placed, who collects them, at what hour, and what invariably happens to them. From the system, and from proof that this letter entered it, the court may infer that this letter was despatched.

	Ordinary proof of an act	Proof under Section 14
What the witness deposes to	The particular act, which he perceived and recalls	The invariable practice, and that the item in question entered it
Basis of the conclusion	Direct testimony	Inference from regularity
When it is used	Where the act was distinctive enough to be remembered	Where the act is routine and indistinguishable from hundreds like it
Vulnerability	Failure of memory; interested testimony	Proof that the practice was not in fact invariable, or that this item did not enter it

3. The Essentials

Requirement	What must be established	Why it matters
1. A question whether a particular act was done	The dispute must be about whether an act occurred, not about the character or the consequences of an admitted act	Section 14 addresses occurrence alone. Where the question is whether an admitted act was accidental or intentional, Section 13 applies; where it is the state of mind with which it was done, Section 12 applies
2. Existence of a course of business	A settled, regular and habitual practice, whether of an office, an establishment, a profession or an individual	An occasional or irregular practice supports no inference. The regularity is the whole basis of the section
3. According to which the act naturally would have been done	The act in question must be of the very class the practice covers, and must fall within its ordinary operation	A practice covering a different class of act is irrelevant, however regular it may be
4. The item entered the course of business	It must be shown that the document, article or matter was placed into the system	Illustration (a) makes this explicit — it is not enough that letters put in the place are carried to the post; this letter must be shown to have been put there

⚠ Two things must be proved, not one

The commonest failure under Section 14 is to prove the system and stop. Illustration (a) requires both limbs: that it was the ordinary course for letters placed in a certain spot to be carried to the post, and that this particular letter was put in that spot. Proof of an office routine, without evidence connecting the item in question to it, establishes nothing about the item. Conversely, proof that the item was handed over, without evidence of what the office invariably does with such items, leaves the inference unsupported.

4. Meaning of 'Course of Business'

The expression is not confined to trade or commerce. It covers any settled practice according to which acts of a particular kind are habitually performed.

Category	Examples of a course of business
Office and administrative practice	The despatch of letters and notices; the maintenance of a despatch register; the numbering and filing of correspondence; the circulation of files for approval
Postal and courier practice	Collection, sorting, transmission and delivery of articles; return of undelivered articles to the sender
Banking and financial practice	Posting of entries to a ledger; issue and despatch of statements; presentation and clearance of instruments; generation of automated advices
Commercial practice	Issue of invoices with each consignment; recording of deliveries; preparation of goods-received notes; maintenance of stock registers
Professional practice	The manner in which an advocate maintains a diary; the practice of a physician in recording prescriptions; the practice of a notary in maintaining a register
Governmental and statutory practice	The manner in which a revenue office records mutations; the practice of issuing a receipt on payment; the procedure for entering a document in a public register
Automated and electronic processes	Automatic generation of system logs and audit trails; automatic despatch of electronic receipts and confirmations; scheduled backups; timestamping of transactions

The last category has grown considerably in importance. A great many acts are now performed by systems rather than by persons, and no human witness can depose to the individual instance. Where the process is automated, the course of business is the configuration of the system itself, and Section 14 permits proof of the configuration in place of proof of the particular operation.

⚠ Electronic records still require proof under their own provisions

Where the material by which the course of business is established is an electronic record — a system log, an audit trail, an automated despatch report — its relevance under Section 14 is only the first question. The record must then be proved in accordance with Sections 57, 61 and 63. Where it does not fall within the Explanations to Section 57 as primary evidence, the certificate prescribed by the Schedule to Section 63(4) is required, including the hash value in Part A and the expert declaration in Part B.

5. Section 14 and the Presumption of Regularity

Section 14 works alongside two presumptions which produce similar results by a different route. The distinction between relevance and presumption is worth keeping clear.

	Section 14	Illustration (e) to Section 119	Illustration (f) to Section 119
Nature	A rule of relevancy — the course of business is a relevant fact from which the court may draw an inference	A presumption of fact — the court may presume that judicial and official acts have been regularly performed	A presumption of fact — the court may presume that the common course of business has been followed in particular cases
Who must lead evidence	The party asserting the act must prove the practice and the entry of the item into it	No evidence is required to raise the presumption, though the court may decline to draw it	The same
Effect	Supplies material from which the court may infer that the act was done	Places the burden of showing irregularity on the party alleging it	The same
Rebuttal	By showing that the practice was not invariable, or that this item did not enter it	By showing circumstances that make regularity improbable	By showing a departure from the ordinary course

In practice the two operate together. A party proves the office routine and the entry of the letter into it under Section 14, and invites the court to presume under Illustration (f) to Section 119 that the routine was followed on the occasion in question. The presumption is expressly qualified in the Adhiniyam by the caution that it should not be drawn where the circumstances make regularity improbable.

6. Practical Applications

Question	Course of business relied upon	Supporting material
Whether a notice was served	The practice of the office in preparing, registering and despatching notices	The despatch register; the postal receipt; the acknowledgement or the tracking record; the absence of a return
Whether a cheque was presented	The practice of the bank in receiving, recording and presenting instruments	The pay-in slip; the clearing register; the system entry
Whether an entry was made in a book of account	The practice of making entries contemporaneously and in a fixed sequence	The book itself; the sequence and continuity of entries; supporting vouchers
Whether goods were despatched	The practice of issuing an invoice and a delivery challan with every consignment	The invoice book; the transport documents; the stock register
Whether an electronic communication was sent	The automatic despatch of a confirmation on completion of a transaction	Server logs; the sent-items record; system audit trail, proved under Sections 57, 61 and 63
Whether a document was registered or filed	The practice of the registering or filing office in numbering and entering documents	The register; the endorsement; the receipt issued

Section 14 is also the evidentiary counterpart of the statutory rules on service of notice. Where a statute provides that service may be effected by registered post and shall be deemed to have been effected in the ordinary course of transmission, proof of the office practice and of despatch under Section 14 supplies the factual foundation on which the deeming provision operates.

7. Limits of Section 14

The section does not prove the act; it supplies material for an inference. The court remains free to decline the inference where the circumstances make it unsafe, and the inference is displaced by evidence that the act was not in fact done.
The practice must be shown to be regular. Evidence that letters are 'usually' or 'generally' posted, without more, is a weak foundation. The section speaks of a course of business, which imports settled and habitual practice.
Departures from the practice destroy the inference. Proof that the routine was frequently not followed, or that on the relevant date the office was disrupted, removes the basis on which the section operates.
It applies only to the question whether an act was done. It does not establish the contents of a document, the character of an act, or the state of mind with which it was done.
It confers relevance, not admissibility. Registers, despatch books, vouchers and electronic logs must be proved as documents in the ordinary way, and where electronic, under Sections 57, 61 and 63.
A course of business of one person does not establish the practice of another. Where the item passes through several hands, the practice of each stage must be established, as Illustration (b) contemplates.

8. Section 14 Compared with Sections 12 and 13

	Section 12	Section 13	Section 14
Question addressed	Whether a person held a particular state of mind, or a state of body or bodily feeling	Whether an act was accidental or intentional, or done with a particular knowledge or intention	Whether a particular act was done at all
What is admitted	Facts showing the existence of the state of mind or body	A series of similar occurrences in which the same person was concerned	The existence of a course of business according to which the act naturally would have been done
Reasoning employed	Inference from circumstances referable to the particular matter	Improbability of repeated coincidence	Regularity of a settled practice
Principal limitation	Explanation 1 — the state of mind must be shown in reference to the particular matter in question	The occurrences must be genuinely similar and the same person concerned in each	The practice must be regular, and the item must be shown to have entered it

The three provisions close the group of closely connected facts and address three different questions in a natural sequence: whether the act was done, whether it was intentional, and with what state of mind. A case may require all three, and each must be established on its own material.

9. Related Topics and Provisions

Topic or provision	Connection
Similar Occurrences — Section 13	The preceding head of relevancy
State of Mind, State of Body and Bodily Feeling — Section 12	Proof of the mental element accompanying an act
Facts in Issue and Relevant Facts — Section 3	The gateway provision to which Section 14 supplies content
Section 119, Illustrations (e) and (f), BSA	Presumptions that official acts have been regularly performed and that the common course of business has been followed
Sections 28 and 29, BSA	Entries in books of account and in public records, kept in the ordinary course of business
Sections 57, 61 and 63 and the Schedule, BSA	Proof of electronic records by which an automated course of business is established
Section 91, BSA	Presumption as to due execution of documents not produced after notice