As per the Evidence Act, the original of the document is called the primary evidence. A Photostat copy of a Xerox copy is in the form of what is known as secondary evidence.
The Evidence Act requires that all documents must be proved by their primary evidence except in those situations which are provided under this Act. One of the situations in which secondary evidence is permissible to prove the document is when the original of the document has been lost.
Clause (c) of Section 65 of the Evidence Act provides that secondary evidence may be given of the existence, condition or contents of a document when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. This section further provides that in such a situation, any type of secondary evidence of the contents of the document is admissible.
Thus, if the original document has been lost, its secondary evidence in the form of a Photostat or Xerox copy can be given as evidence in the court. In your case, you can give the Photostat or Xerox copy of the Promissory Note in evidence, if the original has been lost.
However, note that there must first be evidence on record to show that the original document has been lost. To prove the loss of the document, a diligent search is necessary to trace the document. In fact, Illustration (b) to Section 104 specifically requires loss of the document to be proved first:
“(b) A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost.”
In view of this, you’ll be required to first establish that you have exhausted all resources and means in search of the original document that has been lost. Once you do that, you’ll be able to produce secondary evidence to prove the Promissory Note.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
.
