These questions often arises, whether during the course of cross examination, the witness can be confronted with the photocopies of the documents or not? What happens, in case the witness denies the same? What options may be available to such parties. Here are few case law study throwing some light on this aspect.

RVE Venkatachala Gounder Vs Arulmigu Viswesaraswami & VP Temple and Anr.
Civil Appeal No. 10585 of 1996
Date of decision- 08-10-2023
Hon'ble Supreme Court of India
(2003) 8 SCC 752
R.C.Lahoti and Ashok Bhashin, H.J.

The photocopies of the original documents, upon confrontation, were admitted as evidence Exts A-30, A-34 without any objection from the other side.

T High Court reversed the judgment and decree of the courts below and held that no reliance could be placed on them. Documents being Photostat copies could not be admitted in evidence without producing the originals.

In the second appeal the Ld. counsel for the defendant, relying on judgment of Roman Catholic Mission Vs State of Madras submits that:

The objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play.

Failure to raise prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document which is itself sought to be proved being admissible in evidence. Acquiescence would be no bar for raising the objection in a superior court.

Judgment and decree of the High Court is set aside and that of the trial court as confirmed by the first appellate court is restored.

Relevant Paras- 6, 7, 15, 20, 23, 24, 34.
Thus in this case the Hon'ble Supreme Court of India has endorsed the decision of Ld. Trial Court where by photocopies of the document was allowed to be exhibited.

Dhuwalia Plastics Vs H. Venkatesh
Civil Revision Petition/595/2022
Date: 26.10.2022
High Court of Telangana at Hyderbad
Sambasiva Rao Naidu, H.J.

DW1 was confronted with the photocopy of a document without any signature or authentication. Marked document Ex. A20 (On the basis of RVE VenkatachalaGounder Vs Arulmigu Viswesaraswami & VP Temple and Anr.)

• It was marked subject to objection, which can be decided at the time of filing disposal of the suit thereby no illegality being in marking the document.
   
• The court observed; The ld counsel for defendant has raised objection with regard to marking of the Ex. A20, as the objection with regard to mode of proof of Ex. A20, thereby, by following judgment of Gounder case and Bipin Shantilal Panchal, wherein under the Hon'ble Supreme Court has formulated whenever, objection with regard to mode of proof of document 'other than stamp duty and registration is raised, the document 'can' be marked subject to objection, accordingly marked to subject to objection
   
• The trial court can make a note of objection raised during the evidence taking stage regarding the admissibility of any material or item of oral evidence, and mark the objected document tentatively as an exhibit in the case subject to such objections to be decided at the last stage in the final judgment.
   
• Observations made by the Hon'ble Apex Court in Bipin Shantilal Panchal Vs Gujarat and Anr, trial court is directed to decide the objection about the admissibility of Ex. A20 while disposing the main suit.

Relevant paras- 2, 5, 8
The photocopy of the document was allowed to be exhibited, subject to be its admissibility to be decided at the final stage of the suit.

Mr. Anil Madan Vs Mr. RK Madan &Ors
CS(OS)/1184/2005
Date:21.08.2009
Court: High Court of Delhi
Anil Kumar, H.J.

• Photocopy of an unattested affidavit dated 31st March 2005 was exhibited asPW1/D III during cross examination of the plaintiff.

The plaintiff was confronted by the defendant no.1 with documents including Exhibit PW1/D1. Exhibit PW1/D1 is the photocopy of the computation of the income of the accounting year ending on 31st March 2003 and the balance sheet as on 31st March 2003.

Copy of the current account of M/S Satguru Enterprises exhibited as PW1/DW1 for the period from 1st March 1997 to 31st March 1998.

Relevant paras- 16, 17, 21
Thus in this case, the Hon'ble High Court of Delhi has even relied upon the photocopies of the documents which were also allowed to be exhibited during the course of cross examination.

A Sreedharan Vs Dr.Bijoydas
RCR No. 232 of 2019
03.03.2021
Hon'ble High Court of Kerala at Ernakulam
Online Ker 1091: 2021 AIR CC 1162

A. Hariprasad and Ziyad Rahman AA, JJ.
During cross-examination of PW1, he was confronted with the photocopy of the document based on which the relationship of the parties commenced. As PW1 admitted the execution, it was marked as Ext B1.

According to respondents counsel, Ext B1 document, based on which the said arrangement had commenced is not a lease agreement but on the other hand it is a deed of license .

Relevant paras- 6
Where a party admits the photocopy a documents, then it can off course be exhibited and relied upon as has been done in the present case.

Telecommunications Consultants India Ltd and Anr Vs Anil Bhasin and Anr

CM(M)/1162/2021
15.12.2021
Hon'ble High Court of Delhi
Amit Bansal, H.J.
2021 SCC Online Del 5359

The witnesses of the petitioners were confronted with photocopies of the document upon which they did not comment anything as the counsel for the petitioners, subsequently, filed for summoning of documents from the respondent.

The Commercial Court has rightly noted that the need to summon the aforesaid documents by way of an application arose because the witness of the petitioners took objection to the documents during evidence, as the copies produced by the respondent no. 1 during evidence were photocopies.

Relevant paras- 8, 9, 11, 13
In this case, as the witness refused to comment upon the photocopies of the documents , the Plaintiff filed the application for taking the same on record and this was rightly been allowed to be taken on record.

From the afore mentioned case laws, following case laws emerges:

1. The Photocopies of the documents can be confronted to a witness during the course of cross examination.
2. In case the photocopies are admitted then it can be exhibited.
3. In case of objection, it can be exhibited subject to objection.
4. However admissibility of such objected document has to be decided at the final stage of the suit.
5. The Party would also been having an opportunity to file the afore mentioned documents as additional documents.

Disclaimer:
This information is being shared in the public interest. It should not be treated as a substitute for legal advice as there may be possibility of error in perception, presentation and interpretation of facts and the law involved therein.

Written By: Ajay Amitabh Suman, Patent and Trademark Attorney - Hon'ble High Court of Delhi.
Email: [email protected], Ph No: 9990389539