AN ADVERSE INFERENCE CAN BE DRAWN BY THE COURT FOR NON-COMPLIANCE / NON-PRODUCTION OF DOCUMENTS

The Black law dictionary defines ‘Adverse’ as opposed; contrary; in resistance or opposition to a claim.

Adverse inference is an important element during the course of trial to weigh on the principle of presumption.

Section 114 of the Indian Evidence,1872 (corresponding section 119 of the BSA, 2023) states thus: The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustration (g): that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it ;

The above section is built on the principle of presumption and the illustration (g) gives the court the thought and liberty to draw an adverse inference against a party who knowingly fails to produce evidences.  

The Supreme court in Ajay Kumar D Amin vs Air France, Civil Appeal no 1141 of 2016(page 5), reiterating  Gopal krisnaji ketkar vs Mohamed Haji Latif & Ors. 1968 SCC Online 63 had opined that adverse inference can be drawn by the trial court when the party in-spite of the order to produce the documents fails to do so. The non production of document raises a presumption that the contents were unfavourable to the party.  The Hon’ble Court also observed that despite passing a direction to produce such documents the party had failed to comply to the same, and further went to observe that under section 114(g)  and 103 of the Indian Evidence Act, a party in possession of best evidence which throw light on issue in controversy withholding it, the court ought to draw and adverse inference against it notwithstanding that onus of proof does not lie on him and the party cannot rely on abstract doctrine of onus of proof on the fact that he was not called upon to produce it.

On a similar footing, the Supreme court in Hiralal and Ors vs. Badkulal & Ors (1953) SCC 400, observed that non-production of the relevant documents to support their cases and substantiate the defence taken in the written statement would draw and adverse inference. A similar decidendi was observed by the High Court of Delhi in Guddi Devi & Ors vs. Neelam Deval, 2017 SCC Online Del 7817

In State Inspector of Police vs. Surya Sankaram Karri. (2006) 7 SCC 172, The Supreme Court observed that a public functionary is under statutory obligation to produce documents in its possession and failure of such would be highly prejudicial and could lead to adverse inference action against it. It held that “If a public functionary, who is under a statutory obligation to produce the documents in its possession, fails or neglects to produce the same before the court of law, an adverse inference can can be drawn against such functionary.”

Thus, the above cases highlights the importance of producing evidences by the parties in support of its contentions before the court of law and the consequences of non-compliance thereof.