Lost or Destroyed Documents and Secondary Evidence under Section 60(c) of the Bharatiya Sakshya Adhiniyam, 2023

Ground (c) of Section 60 is the most frequently invoked of the seven and the one on which most applications are decided. It permits secondary evidence where the original has been destroyed or lost, or cannot be produced for any other reason not arising from the party's own default or neglect. What defeats applications is almost never the law but the evidence: a party who asserts that a document is lost, without proving where it was kept, when it was last seen and what search was made, has established nothing.

1. The Provision

The ground covers three distinct situations, and they are not the same. Destruction, where the document no longer exists. Loss, where it may still exist but cannot be found. And inability to produce in reasonable time for any other reason, which is a residual category covering everything else provided the inability is not the party's own fault.

Where the ground is established, any kind of secondary evidence of the contents is admissible. Section 60 restricts the kind under some grounds — grounds (e) and (f) permit only a certified copy — but ground (c) carries no such restriction. A copy, a compared copy, an admission or an oral account by a person who saw the document may all be given.

2. The Foundation

The ground is a fact to be proved, not an assertion to be made. This is the whole of the practical difficulty, and it is where applications fail.

3. Proving Destruction

Where destruction is alleged, the party must depose to how and when the document was destroyed. The proof is ordinarily simple where the destruction was itself an event — a fire, a flood, a collapse — and the event can be established independently, by the record of the fire service, by a police report, by an insurance claim, or by the evidence of persons who witnessed it.

Two matters need attention. The document must be shown to have been in the place destroyed, which requires evidence of where it was kept, and not merely that a fire occurred at premises the party occupied. And where the destruction was deliberate, whether by the party or by anybody else, the circumstances must be explained, because deliberate destruction by the party himself takes the case outside the ground altogether.

Destruction by lapse of time, by insects, or by deterioration is within the ground where it is proved, and this is common with very old documents. What must be shown is the condition in which the document was kept and the process by which it perished, not merely that it is old and cannot be found.

4. Proving Loss

Loss is the commoner allegation and the harder to establish, because it is a negative — the document cannot be found — and a negative is proved by showing that a genuine effort to find it has failed.

What the evidence must cover is a settled list, and an application that omits any part of it invites refusal.

1. Where the document was kept. The party must identify the place in which the document was ordinarily kept — a particular almirah, file, office or custody — and depose to how he knows this.
2. When it was last seen, and by whom. A date or an occasion, and the identity of the person who last had it in hand.
3. How it came to be missed. The occasion on which the party looked for it and found it absent.
4. What search was made. The places searched, when, by whom, and how thoroughly. A search confined to the place where the document was expected is inadequate where other places were possible.
5. What enquiries were made. Of persons who might have had the document — a former employee, an advocate, a bank, a relative who handled the family papers, the person who last borrowed it.
6. Why the search failed. Any explanation the party can give, and any circumstance suggesting how the document came to be lost.

5. 'Not Arising From His Own Default or Neglect'

The qualifying words in ground (c) apply to the third limb — inability to produce for any other reason — but the principle they express informs the whole ground. A party cannot rely on an unavailability he brought about himself.

The situations in which the qualification bites are recognisable.

• Deliberate destruction by the party. Plainly outside the ground, and the destruction will ordinarily also attract an adverse inference.
• Careless custody. Where a party kept an important document in a manner no reasonable person would, the court may hold the loss to arise from his own neglect. This is a question of degree and courts do not apply it harshly, but gross carelessness has been held to defeat the ground.
• Parting with the document without record. Where a party handed the original to somebody and kept no note of who, the loss is his own doing.
• Failure to take steps to recover it. Where the party knows who has the document and has taken no step to get it back or to compel its production, the inability is of his own making.

The qualification does not apply to a loss that is genuinely accidental, to a document destroyed by an event outside the party's control, or to a document lost in circumstances the party could not reasonably have prevented. Nor does it apply where the document was lost by somebody else — a court, a registry, a bank — provided the party is not responsible for having placed it there without record.

6. What May Then Be Given

Once the ground is established, any of the eight kinds of secondary evidence in Section 58 may be given. In practice a party will have one or two of them, and the choice determines a great deal about how strong the case is.

An oral account under clause (v) is the last resort and calls for particular care. The witness must have himself seen the document — a person told what it said is giving hearsay about a document rather than an oral account of it — and he must be able to give its contents, not merely its general effect. A witness who says only that the document was 'a receipt for the money' has not proved its contents; a witness who can give its date, its parties, its sum and its substance has.

7. Existence, Condition and Contents

Section 60 permits secondary evidence of the existence, condition or contents of a document, and the three are distinct.

Existence — that a document of the description alleged came into being at all. This is frequently the first thing disputed where the original is missing, and it is proved by the evidence of persons who saw it, by the conduct of the parties, by references to it in other documents, and by the circumstances of the transaction.

Condition — the physical state of the document, whether it bore endorsements, whether it was on stamped paper, whether it was registered, whether it bore particular signatures. This bears on both genuineness and legal effect.

Contents — what it said. This is what the party ordinarily wants to establish, and it is what the eight kinds of secondary evidence are directed at.

8. Procedure

In civil practice the party intending to lead secondary evidence ordinarily applies for permission, and the application should be made at the stage of leading evidence rather than at the end of the trial.

The application sets out the ground relied upon and the material establishing it. The court then hears the parties, receives evidence on the foundational facts where necessary, and decides. The practice the decisions recommend is that the court should record its satisfaction before permitting the secondary evidence, so that the basis of the order appears on the record.

Two procedural points recur. The foundational evidence may be led on affidavit or by examining a witness, and where the loss is seriously disputed the court will ordinarily require oral evidence subject to cross-examination. And the objection to the absence of a foundation must be taken when the document is tendered, because it goes to the mode of proof and is waived if not taken — a point of considerable practical importance, since a party who allows a photocopy to be marked without objection cannot complain about it in appeal.

An alternative course is available where the original is with another person rather than lost. Ground (a) of Section 60 permits secondary evidence where the original is in the possession or power of the opposite party, or of a person out of reach of the court's process, or of a person legally bound to produce it, and that person does not produce it after notice under Section 64. A party who knows where the document is should ordinarily proceed under ground (a) rather than assert loss, because the notice procedure is straightforward and the ground is easier to establish.

9. Electronic Records

Where the record is electronic, the question of loss arises differently and is frequently easier to answer, because such records are ordinarily replicated.

The first question is whether secondary evidence is required at all. Under the Explanations to Section 57, each of several files storing a record, each simultaneous storage, and each automated storage including temporary files is primary evidence. A party whose device has been lost may therefore be able to produce the record from a server, a backup or another device, and to tender it as primary evidence rather than as secondary.

Where that is not possible — the device is destroyed, the account closed, the server data purged — the record falls to be proved as secondary evidence. Ground (c) then applies, and the party must prove the destruction or loss in the ordinary way. The certificate under Section 63(4) and the Schedule will also be required, and the practical difficulty is that a certificate requires a person in charge of the device to disclose the hash value, which may be impossible where the device no longer exists.

10. The Position Stated Shortly

1. Ground (c) covers three situations — destruction, loss, and inability to produce in reasonable time for any other reason not arising from the party's own default or neglect.
2. Any kind of secondary evidence is admissible once the ground is established; unlike grounds (e) and (f), no restriction applies.
3. The ground is a fact to be proved. Assertion in an application is not enough — Ashok Dulichand.
4. Loss requires proof of a genuine search — where the document was kept, when last seen, what search was made, by whom, and what enquiries followed.
5. The search should be deposed to by the person who made it, and an affidavit reciting that a search was made is worth very little.
6. A loss brought about by the party's own default or neglect does not attract the ground, and deliberate destruction takes the case outside it entirely.
7. Proving loss does not prove existence. Where the opponent denies that any such document was executed, existence must be established independently.
8. Where the original is with another person, proceed under ground (a) and Section 64, which is easier to establish than loss.

11. Related Topics and Provisions