TaxTMI 
TaxTMI 
2018 (10) TMI 1778
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.... amount within a short time. After some time, the petitioner had given a cheque bearing No.649262 dated 19.03.2016; for an amount of Rs. 49,000/- drawn upon Punjab and Sind Bank, Jhabwasti Ram, Amritsar, with the assurance that the cheque will be honored on its presentation. This cheque was duly signed by the petitioner and was handed over by the petitioner to the respondent in discharge of his loan liability. The cheque was sent by the respondent to his banker. However, the same was returned by the bank of the petitioner; since there was no funds in the said account of the petitioner to meet the amount of the cheque. Resultantly, the cheque was returned as dishonored; vide memo dated 21.03.2016, with remarks as "Account Closed". Thereafter, a notice was served by the respondent upon the petitioner requiring him to make the payment. However, still the payment was not made. Hence, the complaint under Section 138 of the NI Act was filed against the present petitioner. The complainant led his evidence in support of the complaint. Thereafter, the evidence of the petitioner/ accused was started. The accused tendered his affidavit in defence evidence; and also tendered three articles c....
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....018 dismissed the application filed by the present petitioner. While dismissing the application, the trial Court has recorded that it is not mentioned by the applicant as to by what device or instrument the recording was done and the accused has not placed on record even affidavit and certificate regarding authenticity of the recording. It was further recorded by the trial Court that no date, month, or time of recording is mentioned by the applicant. Still further, the trial Court recorded that even the cross-examination of the complainant by the accused/ petitioner reveals that the accused had not even put any question to the complainant regarding the recording of any conversation; which has now been sought to be produced on record. The trial Court also recorded that the applicant himself has admitted as having issued a cheque to the complainant relating to some "committee"; which is allegedly being run by the complainant. Still further, the applicant claims the presence of eight persons at the time of recording, however, not even a single person has been examined by the applicant to prove such conversation. Resultantly, the trial Court held that the authenticity of the recording ....
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....iminal) 388, Shafhi Mohammad v. State of Himachal Pradesh to contend that the requirement of certificate, as provided under Section 65(B) of the Indian Evidence Act, is not mandatory in all cases. Hence, it is prayed that the present petition be allowed and the trial Court be directed to get voice samples of the complainant compared with the recordings contained in Ex.D1 and Ex.D2, which are the recorded versions of the conversation between the petitioner/accused and the respondent/complainant. On the other hand, the respondent has appeared in person and has contended that he has already averred in his reply to application of the petitioner that he has never had any such conversation with the petitioner, as contained in the Pen Drive and CD; Ex.D1 and D.2. These are totally fabricated recordings, created by the petitioner; using the technology tools; with a view to put wrong facts before the Court. The respondent has further submitted that the petitioner has not disclosed anywhere as to when this conversation was recorded, by which device it was recorded and also; it has not been supported by way of any definite evidence that the recording was authentic. It is further submitted b....
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....872 65B. Admissibility of electronic records.- (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:- (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic re....
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....ection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section,- (a) infomation shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.-For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process." Section 65-B of the Ind....
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....n which was fed in the computer in ordinary course of such activities. This Section further provides that to authenticate the above requirements, a certificate signed by a person; occupying a responsible position in relation to the operation of the relevant computer/ device; shall be required:- (i) identifying the electronic record which is sought to be produced before the Court, as well as, describing the manner in which it was produced; (ii) giving particulars of device involved in production of that record and certifying that the device was being operated during the relevant period in the manner as required by the Section. The electronic records containing electronic information are processed and created on computing devices consisting of processor and working on variety of factors. After processing the raw information, like strokes from a keyboard, the computer processor creates the `machine readable' information and sends it to the default storage memory device. However, before so storing, the said machine readable electronic record is created through the computer language; which is a binary digital language comprising of '1' and '0'. The machin....
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....in the digital form, voice of anybody can be re-created by the experts of the computer field. Hence, since the entire computer information is in the form of precise digital form only, therefore, the same can be created as `original' also with the same precision, even without the risk of possibility of the fabrication being easily detected. Its only the question of as to what is the level of expert who is creating the digital information. Hence, the digital information has to be treated with due suspicion and more stringent test has to be applied to it than the ordinary evidence, as has been held by the Hon'ble Supreme Court in its judgment rendered in 2010(1) RCR (Civil) 959 - Tukaram S. Dighole v. Manikrao Shivaji Kokate. Hence, the authenticity of the recording of the information is as important as the content of the information itself, lest the Court should be taken for a ride by unscrupulous experts in the field of the fabrication of the information. Accordingly, the above mentioned Section 65-B of the Indian Evidence Act has laid down a strict test to ascertain the authenticity of the creation or the recording of the information. What is permissible to be led in evid....
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....nce, besides the relevance of the contents of the information, the authenticity of the recording device, its proper functioning and the information being correct output of the recording are equally important corner stones; for permitting any electronic evidence to be led in evidence before the Court. Although there are certain judgments, including from the Hon'ble Supreme Court, to say that in case the electronic evidence is produced by a party in the form of primary evidence then the certificate as required under Section 65-B(4) of Indian Evidence Act may not be required, however, those judgments pertained to the electro magnetic recording in the form of audio tapes. In those cases, the original audio tapes were sought to be produced before the Court. However, the same analogy may be hard to be applied in case of computer output; without insisting for authenticity of and source of recording. Therefore, the Hon'ble Supreme Court of India in 2017(3) RCR (Criminal) 786 - Sonu @ Amar v. State of Haryana, has held that an electronic record is not admissible unless it is accompanied by a certificate as contemplated under Section 65-B(4) of Indian Evidence Act. The position has....
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....is produced before the Court by a person who is in position to produce such a certificate, being in the control of the said computer device and further that such a certificate is not to be insisted upon when such an electronic record is sought to be produced by the opposite party. However, even in this judgment, it has been emphasised that such an electronic evidence, as sought to be produced before the Court; has to be authentic and relevant. Otherwise this judgment, which holds that the requirement of the certificate under Section 65-B(4) is not always mandatory; is by a Bench of two Hon'ble Judges of the Hon'ble Supreme Court, whereas the earlier judgment, making the certificate to be mandatory, is by a Bench of three Hon'ble Judges of the Supreme Court and the three Judges' Bench judgment was delivered by specifically overruling the earlier judgment of the Supreme Court itself. Therefore, in the considered opinion of this Court, the three Judges' Bench Judgment would be binding precedent for this Court, as held by Hon'ble Supreme Court in case of National Insurance Company Limited v. Pranay Sethi and others, 2017(4) RCR (Civil) 1009. Even if the judgment....