1. Legal Framework

Sec 60 BSA says secondary evidence of existence, condition or contents may be given only when:

a) Original in possession of opponent who does not produce after notice under Sec 64
b) Existence admitted in writing by opponent
c) Original destroyed or lost or cannot be produced for reason not arising from own default
d) Original not easily movable
e) Original is public document - Sec 74 BSA
f) Original is document of which certified copy is permitted by law
g) Originals are numerous accounts

2. What is Conflict?

Conflict arises in 3 forms:

Type 1: Content Mismatch - Original says Sale for Rs 10 lakhs, Photocopy says Rs 15 lakhs. Which prevails?
Type 2: Existence Mismatch - Original exists and says Limited Power of Attorney, Duplicate photocopy shows General Power of Attorney with extra clauses.
Type 3: Admissibility Mismatch - Original lost, only photocopy available. Opponent disputes.

Principle: Original always prevails. Duplicate is inadmissible until you cross 2 hurdles.

3. The Two-Step Test - Supreme Court Latest Law

Supreme Court in Tharammel Peethambaran v. T. Ushakrishnan, 2026 LiveLaw (SC) 128 settled this:

"Secondary evidence is inadmissible until the non-production of the original is accounted for in a manner that brings the case within specific exceptions provided in Section 65. Photocopy is no evidence unless proved by following procedure."

The Court laid down Twin Requirements are conjunctive:

Foundation First: You must establish legal right to lead secondary evidence - Prove original existed, was lost/destroyed/in opponent's possession, and you gave notice under Sec 64 BSA. You must explain circumstances under which photocopy was prepared and who possessed original at time of photograph.

Authentication Second: You must prove photocopy is true copy of original by foundational evidence showing alleged copy is in fact a true copy.

"For instance, if a party wishes to introduce a photostat copy, they must explain the circumstances under which the copy was prepared and who possessed the original at the time the photograph was taken."

Mere admission as exhibit does NOT prove it.

4. Major Case Laws

1. H. Siddiqui (Dead) by LRs vs. A. Ramalingam (2011) 4 SCC 240 - Authentication Rule
Secondary evidence must be authenticated by foundational evidence proving photocopy's accuracy to original. Cited by MP High Court recently: Permitting Secondary Evidence U/S 16 is Exception, Party Must Explain Circumstances

2. Ashok Dulichand vs. Madahavlal Dube & Another (1975) - Possession Rule
Without establishing possession and preparation circumstances of original document, secondary evidence is inadmissible.

3. J. Yashoda vs. K. Shobha Rani (2007) 5 SCC 730 - 3 Conditions
Supreme Court held secondary evidence inadmissible unless:
a) Existence and execution of original proved
b) Loss of original proved
c) Copy is true copy

4. Tharammel Peethambaran Case (2026) - Photocopy of PoA
Plaintiff issued Limited PoA striking out sale clause. Defendants produced notarized photocopy showing General PoA allowing sale to in-laws. Trial Court held sale void. First Appellate Court reversed relying on photocopy. Kerala High Court restored trial court. Supreme Court affirmed:
"A photocopy of a document is no evidence unless the same is proved by following procedure. Relying on Exh. B-2, First Appellate Court acted on inadmissible evidence"
Sale set aside.

5. MP High Court - Secondary Evidence Cannot Be Permitted When Original Exists
Justice Vivek Jain held secondary evidence cannot be permitted when original still exists and can be obtained by party who had produced it earlier. Document was filed in criminal case under Sec 138 NI Act and was retrievable. Application rejected.

6. Philippines Supreme Court - Ybo Lastimosa Case - Global Principle on Duplicates
Duplicates, including photocopies and electronic copies, may be admitted as evidence unless someone can show original may be fake, altered, or that accepting duplicate would be unfair. Photocopy of death certificate admissible because no dispute over authenticity. Shows if original authenticity disputed, duplicate fails.

7. Bombay High Court - Foundation First Doctrine 2024
Under BSA 2023, held party must file specific pleadings and affidavit explaining why original cannot be produced before leading secondary evidence. Failure = rejection at threshold.

5. How Courts Resolve Conflict - Hierarchy

Rule 1: Original Prevails Over Duplicate if Both Available
If original produced, duplicate irrelevant. Court will compare. If mismatch, original wins. Duplicate is treated as forged/altered.

Rule 2: If Original Lost, Duplicate Can Prevail Only If:

• You prove loss not due to your default - Sec 60(c)
• You prove execution of original by attesting witnesses
• You prove photocopy made by mechanical process which ensures accuracy

Rule 3: Certified Copy vs Photocopy
Certified copy of public document (Sale Deed from Sub-Registrar) prevails over private photocopy. For public documents, only certified copy admissible, not other secondary - Sec 60 Explanation (iii)

Rule 4: Electronic Duplicate
Under Sec 63 BSA (old Sec 65B), printout of electronic record is secondary evidence - needs certificate. Original electronic file on server is primary. If original file shows no tampering, duplicate printout with mismatch rejected.

Practical Checklist If You Have Duplicate vs Original Dispute:

1. Demand original under Order 11 CPC / Sec 64 BSA notice
2. If opponent produces original, get forensic examination - ink, stamp, signature comparison cannot be done on photocopy - Santokh Singh v Jasbir Kaur - Expert said examination cannot be completed with photocopy, original needed
3. If original not produced, file application for secondary evidence with affidavit stating: when, where, by whom photocopy prepared, where original last seen, efforts to find
4. Argue J. Yashoda - without proof of existence of original, secondary not admissible.