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Cc No.582/2013 M/S Indcap Leasing And ... vs Dr. Niaz Ahmad Page 1 Of 11 on 5 November, 2015

IN THE COURT OF CIVIL JUDGE, SOUTH EAST DISTRICT,
    SAKET COURTS COMPLEX, SAKET, NEW DELHI

Presiding Officer: Sh. Dinesh Kumar, DJS
CC No.582/2013
In the matter of :
M/s Indcap Leasing and Finance Pvt. Ltd.,
having its registered office at M-64
Greater Kailas-II, New Delhi-110048     ..........Complainant.
            Vs
Dr. Niaz Ahmad, S/o Sh. Mushtaque Ahmad
R/o-106-A, Hamilton Court
DLF Phase-IV, Gurgaon-122002
ALSO AT: D-92, The Icon
DLF city Phase-V, Gurgaon-122009
ALSO AT:
Flat No.206, Navkirti Market, Golf Course
Road, Sector-55, Gurgaon, Haryana
ALSO AT:
B-515, Nanddham Building
Plot No.59, Sector 11, C. B. D. Belapur
Navi Mumbai, Maharashtra
ALSO AT
A-651, Sushant Lok Phase-I
Gurgaon, Haryana                         ........Accused.

Date of institution of complaint                             : 28.01.2012
Date on which order was reserved                             : 06.10.2015
Date of pronouncement of the order                           : 05.11.2015


ORDER

1. Vide this order, I propose to decide an application under Section 65B, Indian Evidence Act read with Section 311, Cr.P.C. moved by the complainant. It is stated in the application that vide order dated 05.06.2015 the Court had permitted the complainant to produce the originals of Ex.CW2/5 and Ex.CW2/4A. With regards to CC No.582/2013 M/s Indcap Leasing and Finance Pvt. Ltd. vs Dr. Niaz Ahmad Page 1 of 11 Ex.CW1/41, Ex.CW1/42 and Ex.CW2/50 the Court had permitted the complainant to approached it to cure the defects in production of those documents. Ex.CW2/6, Ex.CW2/7 and Ex.CW1/35 are the office copies of the notices sent to the accused. Ex.CW2/4A is the copy of articles of association of M/s Integrity Geosciences Pvt. Ltd. of which the accused is a director. The document is a public record and the complainant has produced the certified copy of the same. Ex.CW2/5 is the copy of scheme dated 16.02.2009. Its original was shown when the affidavit of evidence was tendered. However, inadvertently it was not mentioned in the statement of CW2. Now, complainant wants to bring on record the original of the said document. Ex.CW2/6, Ex.CW2/7 and Ex.CW1/35 are the office copies of the legal notices which were sent by the advocate of complainant to the accused, on instructions of complainant. The complainant wants to bring on record a certificate issued by its counsel to this effect.

2. It is further stated in application that Ex.CW2/41 and Ex.CW1/42 are the internet generated tracking report, tracking delivery of the notices sent to the accused. They have been downloaded from the website of Indian Postal Authorities i.e. indiapost.gov.in. The complainant wants to file on Court record a certificate under Section 65B of the Indian Evidence Act in support of the printouts to make them admissible. Ex.CW2/50 (colly) are printouts of certain emails which have been printed from the mail box. They are still available with the complainant on its computer in the concerned mail box and they can be produced in original electronic form. The complainant wants to file a certificate under Section 65 B CC No.582/2013 M/s Indcap Leasing and Finance Pvt. Ltd. vs Dr. Niaz Ahmad Page 2 of 11 Indian Evidence Act to make the printouts admissible in evidence.

3. The complainant has further stated in application that the accused had not raised any objection relating to exhibition of aforesaid documents at the time of tendering of the affidavit by witness. Therefore, the complainant was under bonafide belief that the accused had no objection to the exhibition of those documents. However, later on objections have been raised by the accused with regards to mode of proof. Due to the objections raised by the accused, the complainant wants to bring the originals as abovesaid and the certificates as abovesaid. No question has been put in cross examination as yet. No prejudice would be caused to the accused. Hence, it is prayed that the application may be allowed and the objections raised by the accused be ordered to be removed.

4. The accused has filed reply to the application. It has been stated that the application is not maintainable. The complainant is trying to fill the lacunae in its case. The Court has already decided that the objections taken by the accused are valid and they have been taken at appropriate stage. Now, the complainant is trying to circumvent the order of the Court by present application. It has been stated that once the witness is in witness box and he is being cross examined, no application can be made to cure any defect in his evidence. The objection could have been taken before the affidavit was tendered in evidence. However, once the affidavit has been tendered and the witness is in witness box for cross examination, it is deemed that the cross examination has commenced. The complainant cannot cure any defect in his evidence which was pointed out or objected to by the accused. He cannot be permitted to cover the CC No.582/2013 M/s Indcap Leasing and Finance Pvt. Ltd. vs Dr. Niaz Ahmad Page 3 of 11 lacunae in his case. It would cause grave prejudice to the accused and it would result in unfair trial.

5. The accused further states in reply that the certificate under Section 65B (4) prepared by Mr. Rahul Bhutoria and by Advocate Mohan Kukreja have been given to prove documents Ex.CW2/50 (colly), Ex.CW2/6, Ex.CW2/7, Ex.CW1/35, Ex.CW1/36 to Ex.CW1/40 and Ex.CW1/48. It is an abuse of the process of law. Lawyer of the complainant cannot issue a certificate under Section 65B Indian Evidence Act. Further, the certificate cannot be given after the documents have already been filed. The Court has already held that the certificate is to be filed along with relevant documents. This is the position of law laid down by the Hon'ble Supreme Court. In the present case, the said electronic record was filed without a certificate under Section 65 B Indian Evidence Act. After an objection was raised by the counsel for accused, the present application has been moved to bring on record the certificate. No certificate can be filed at this stage as it is contrary to the law laid by the Hon'ble Supreme Court of India in the case of Anvar P.V vs P. K. Basheer & Ors. Civil Appeal no.4226/2012, decided on 18.09.2014.

6. It has been further stated in reply that under the garb of the present application, the complainant is trying to file an additional affidavit of the witness. However, no additional affidavit can be filed at this stage when the witness is in witness box under cross examination. Party cannot be permitted to improve upon his case by filing additional affidavits. The complainant has taken false pleas in the application. The documents have not been proved as per law. Hence, it is prayed that the application may be dismissed.

7. I have heard the rival submissions and carefully perused the material available on record.

8. Perusal of record would show that on 19.01.2015 witness CW2 had tendered his evidence by way of affidavit. Opportunity to cross examine the witness was given to the accused. However, counsel for accused did not cross examine the witness on that day and therefore matter was adjourned. The witness has not been cross examined as yet. No question has been put in cross examination.

9. On 09.03.2015 when the witness entered into witness box, the counsel for accused, before starting cross examination had raised various objections in relation to mode of proof of various documents. The objections were heard and considered. Both the parties had argued at length. Vide order dated 05.06.2015 the Court had decided that the objections were taken at appropriate stage as the cross examination of the witness had not been started. While replying upon the judgment of Hon'ble Supreme Court of India in Smt. Dayamati Bai vs Sri K. M. Shaffi, Appeal (civil) 2434/2000, decided on 04.08.2004, it was held that as no cross examination had been done by the accused and the objections had been taken before asking any question to the witness in cross examination, the objections were taken at appropriate stage.

10. Now, what is the observation of this Court in favour of the accused cannot be read otherwise to defeat the right of the complainant. Once the Court has observed that the objections were taken properly as cross examination was not started, the situation remains same till today. No question has been put in cross examination. Therefore, I am of the considered opinion that cross CC No.582/2013 M/s Indcap Leasing and Finance Pvt. Ltd. vs Dr. Niaz Ahmad Page 5 of 11 examination of the witness has not started. Further, no proceedings have been done after the objections were taken by the accused except that the Court has given its findings vide detailed order dated 05.06.2015.

11. It is settled position of law that once an objection regarding mode of proof of any document is taken by a party, the other party has a right to remove those objections. This right cannot be curtailed by the Court. In the present case, the order on objections was passed on 05.06.2015 and the matter was adjourned for evidence for 27.07.2015. On 27.07.2015 both the parties had taken an adjournment and the matter was adjourned for CE on 25.08.2015. The present application was moved on 25.08.2015. Therefore, the application has been moved within reasonable time and at the earliest available opportunity. Therefore, it cannot be said that the application has been moved at a belated stage or that it has been moved during the cross examination of the witness. It is also not an attempt to fill the lacunae in the case of the complainant. The accused shall have the opportunity to cross examine the witness and therefore no prejudice would be caused to the accused by bringing those documents on record. On the other hand, grave prejudice might be caused to the complainant if the documents are not taken on record.

12. As already discussed, the Court has held in its order that the accused had raised the objection in relation to mode of proof at appropriate stage. Therefore, opportunity has to be granted to the complainant to remove those objections in relation to mode of proof. The Hon'ble Supreme Court of India in Roman Catholic Mission vs State of Madras AIR 1966 1457, in para 20, has held that if an CC No.582/2013 M/s Indcap Leasing and Finance Pvt. Ltd. vs Dr. Niaz Ahmad Page 6 of 11 objection is taken by the party on the mode of proof, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party is available to the party leading the evidence. Such practice and procedure is fair to both the parties.

13. In the light of discussion hereinabove, I am of the considered opinion that the application has been moved by the complainant at appropriate stage to remove the defects with regard to mode of proof of the documents which have been objected to by the accused.

14. The second issue raised by the accused is that under the guise of the present application, the complainant is trying to file an additional affidavit of evidence. However, I am of the considered opinion that filing of documents is not equal to filing of additional affidavit. The affidavit of evidence has to contain the facts necessary for establishing the case of the party. The documents are to be exhibited in the Court and they need not be mentioned as exhibit in the affidavit of evidence. The Court has to exhibit the documents during examination or cross examination of a witness. In the present case also, the party can bring the originals to show to the Court. It can also bring the original documents and certificates etc. required to prove those other documents. There is no abuse of process in such method adopted by party.

15. The third objection of the accused is that the certificate under Section 65B Indian Evidence Act is to be filed by the complainant and not by his counsel. I have considered this objection. Perusal of record would show that the certificate of the counsel for CC No.582/2013 M/s Indcap Leasing and Finance Pvt. Ltd. vs Dr. Niaz Ahmad Page 7 of 11 complainant is with respect to the printouts of Ex.CW2/6, Ex.CW2/7 and Ex.CW1/35, Ex.CW2/6, Ex.CW2/7, Ex.CW1/36 to Ex.CW1/40 and Ex.CW1/48 (colly). These documents are printouts of the legal notices which were allegedly sent by counsel for complainant on its instructions and the postal receipts. The draft of notices is stated to be saved in the computer of the advocate. Further, the printouts of the postal receipts are also allegedly taken by the advocate. Therefore, only advocate can issue a certificate under Section 65B Indian Evidence Act as he is the person incharge of the computer in which the information is stored. The second affidavit is of the AR of the complainant in relation to Ex.CW2/50 (colly) which are allegedly emails and printouts have been taken from the computer belonging to complainant. The certificate is therefore shown to be issued by a person competent to issue the same. However, it can always be challenged in cross examination. Therefore, there are no merits in this objection.

16. The fourth objection taken by the accused is that certificate under Section 65B Indian Evidence Act cannot be filed at this stage. The certificate must have been filed along with the printouts. Ld. counsel has relied upon the judgment of Hon'ble Supreme Court of India in Anvar P.V vs P. K. Basheer & Ors. Civil Appeal no.4226/2012, decided on 18.09.2014

17. Ld. counsel for complainant, on the other hand, has argued that when the present complaint was filed, the law in relation to electronic record was as per the judgment of the Hon'ble Supreme Court of India in State (NCT of Delhi) vs Navjot Sandhu alis Afsan Guru (2005) 11 SCC 600 wherein the Hon'ble Supreme Court had CC No.582/2013 M/s Indcap Leasing and Finance Pvt. Ltd. vs Dr. Niaz Ahmad Page 8 of 11 held that in the absence of certificate under Section 65 B secondary evidence could be given of electronic record. However, the Hon'ble Supreme Court of India vide its judgment in Anvar P.V vs P. K. Basheer & Ors. Civil Appeal no.4226/2012, decided on 18.09.2014, has overruled the said judgment. Therefore, as per the law of the land, the certificate is required to be filed which is filed by the complainant. It has been stated that the complainant is ready and willing to produce the original record i.e. the emails in their electronic form for inspection and verification of the trustfulness of the same. The Hon'ble Supreme Court in Anvar P. V. (supra) has also clarified that a party is free to produce the original of the electronic record without compliance of Section 65B of the Indian Evidence Act. Section 65B is mere procedural in nature. Therefore, no prejudice would be caused to the accused if certificate is taken on record.

18. I have considered the submissions. It has been settled that a party can always bring the primary evidence of the electronic record and in such circumstances a certificate under Section 65B is not required. The Hon'ble Supreme Court has also made it clear in its judgment titled Anvar P.V vs P. K. Basheer & Ors. Civil Appeal no.4226/2012, decided on 18.09.2014. In para 24, while discussing the requirement of the certificate, the Hon'ble Supreme Court has held that the situation would have been different had the appellant adduced primary evidence by making available in evidence the CDs used for announcement and songs. Thus, a party can bring the original record in electronic form in the Court and in such cases certificate under Section 65 B Indian Evidence Act is not required to be filed.

19. Further, the party can also bring fresh printouts along with CC No.582/2013 M/s Indcap Leasing and Finance Pvt. Ltd. vs Dr. Niaz Ahmad Page 9 of 11 certificate under Section 65B Indian Evidence Act and in such circumstances it cannot be said that the requirement of the law is not fulfilled. The requirement of certificate under Section 65B Indian Evidence Act is a procedural requirement. The direction to bring fresh printouts along with certificate under Section 65B Indian Evidence Act would only cause delay and it would be a mere wastage of paper. No purpose would be served by asking the party to bring fresh printouts along with certificate. I am of the considered opinion that in the circumstances of the present case, the complainant must be permitted to bring on record the certificate under Section 65B Indian Evidence Act without asking it to bring fresh printouts of these documents. No prejudice would be caused to the accused. He can always challenge the authenticity of the certificate and the documents during cross examination of the witness.

20. In the light of discussion hereinabove, I am of the considered opinion that the complainant is entitled to bring on record the certificates under Section 65B Indian Evidence Act. The application is therefore allowed to that effect. It is further clarified that the copies of notices Ex.CW2/6, Ex.CW2/7 and Ex.CW1/35 are not required to be proved by bringing originals as they are the notices sent by the complainant itself. Even certificate under Section 65B, Indian Evidence Act, is not required to prove them. The printouts Ex.CW2/50 (colly) are proved as per law after certificate has been filed by witness CW2. However, they are subject to cross examination and other relevant provisions of law. Whether the documents are admissible in evidence or not is to be decided at the end of trial.

21. However, Ex.CW2/41 and Ex.CW1/42 are not proved as CC No.582/2013 M/s Indcap Leasing and Finance Pvt. Ltd. vs Dr. Niaz Ahmad Page 10 of 11 per law as certificate under Section 65B of the Indian Evidence Act has been issued by Advocate Mohan Kukreja who has not entered into witness box to prove the certificate itself. Further, Ex.CW2/4A and Ex.CW2/5 are also not proved as yet. The certified copy of Ex.CW2/4A is not filed. Original of Ex.CW2/5 has not been brought on Court record. Opportunity is given to the complainant to prove the documents. With these observations the application stands disposed of.

Pronounced in the open Court (Dinesh Kumar) on this 5th day of November, 2015. Civil Judge, South East, Saket Court, New Delhi.