Ashok Dulichand v. Madhavlal Dube

Facts

• The appellant sought to prove the contents of a promissory note by producing a photocopy and oral testimony.
• The original promissory note was not produced before the court.
• No notice to produce was served on the opposite party who was alleged to possess the original.
• No evidence was led to establish that the original was lost or destroyed.
• The trial court admitted the photocopy without requiring foundation.

Issue

1. Whether secondary evidence (photocopy or oral account) of a document can be admitted without first laying proper foundation as to the existence of the original and the reason for its non-production?

Held

• Secondary evidence is admissible only after the party satisfies the court that one of the conditions in S.65 IEA (now S.62 BSA) exists.
• The foundation must be laid through evidence establishing: (a) the original existed, (b) its non-production is justified, and (c) notice was given where required.
• Without laying this foundation, the secondary evidence is inadmissible and cannot be acted upon.
• The trial court committed a jurisdictional error in admitting the photocopy without foundation.
• Mere production of a copy without explaining the absence of the original is no evidence at all.

Ratio Decidendi

The requirement of foundation is a safeguard against fabrication. If secondary evidence were freely admissible without accounting for the original, parties could conveniently suppress originals that do not support their case and produce tailored copies. The foundation requirement ensures judicial inquiry into why the best evidence is unavailable, thereby maintaining the integrity of the documentary proof system. This is a condition precedent, not a mere formality.