Madras High Court
K. Loganathan vs A. Elango on 2 November, 2023
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
C.R.P.No.1020 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.11.2023
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.No.1020 of 2023
and
C.M.P.No.7384 of 2023
K. Loganathan ... Petitioner
Vs.
A. Elango ... Respondent
Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the fair and decreetal order dated
21.02.2023 passed in I.A.No.3 of 2022 in O.S.No.4795 of 2022 by the
Learned XXIII Additional Judge, City Civil Court, Chennai.
For Petitioner : Mr.S.P.Vijayaragavan
For Respondent : Mr.A.Balasingh Ramanujam
https://www.mhc.tn.gov.in/judis
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C.R.P.No.1020 of 2023
ORDER
This Civil Revision Petition is filed against the fair and decreetal order dated 21.02.2023 passed by the Learned XXIII Additional Judge, City Civil Court, Chennai in I.A.No.3 of 2022 in O.S.No.4795 of 2022.
2. The petitioner / plaintiff had originally filed a suit for recovery of money with subsequent interest. The respondent had contested the suit by way of filing a written statement and thereafter, the petitioner filed I.A.No.3 of 2022 to receive and take on record (i) Compact Disc and (ii) Call History / Transcription of the Teleconversation, as plaintiff's side documents. The said I.A. was dismissed by the Trial Court, against which, the present CRP has been filed.
3. The learned counsel for the petitioner submitted that the respondent is a cousin to the petitioner. Based on the close relationship, the respondent borrowed a sum of Rs.12,75,000/- (Twelve Lakhs and Seventy Five Thousand) for his personal and business needs from the petitioner on various dates over a period of time between 2017 to 2019 with an agreed 2% interest rate over the sum borrowed. After receipt of https://www.mhc.tn.gov.in/judis 2/12 C.R.P.No.1020 of 2023 the money, the respondent neither paid any amount towards principal nor paid any amount towards interest. After continuous and persistent follow up, the respondent issued a Cheque No.000301 for Rs.25,000/- dated 12.08.2021 and Cheque No.000302 for Rs.25,000/- dated 25.08.2021 drawn on Karur Vysya Bank, towards part payment of his dues and it was also realized by the petitioner as a part payment towards respondent's liability. After the payment of Rs.50,000/- in 2021 towards interest, the respondent continues to owe and be liable to pay Rs.12,75,000/- to the petitioner along with interest at 2% p.m. The respondent thereafter neither paid any interest nor the principal amount of Rs.12,75,000/- till date. The petitioner issued a legal notice dated 16.04.2022 and the same was received by the respondent on 18.04.2022. The respondent issued a reply notice dated 24.05.2022 to the petitioner, amongst others, admitting liability. Hence, it necessitated the filing of the suit in O.S.No.4795 of 2022.
4. The learned counsel for the petitioner further submitted that, during the pendency of the suit, the respondent voluntarily made attempts to contact the petitioner over phone and admitted the receipt of money from the petitioner which is subject matter of the suit and the https://www.mhc.tn.gov.in/judis 3/12 C.R.P.No.1020 of 2023 teleconversation was recorded in the “Samsung 31 Model” of the petitioner and saved in the Compact Disc (CD) which are relevant document for the suit and to be received as additional evidence.
5. Per contra, the learned counsel for the respondent submitted that the telephonic conversations between the parties are absolutely false. Reiterating the counter averments in I.A., the learned counsel for the respondent further submitted that the suit has been filed for recovery of money and for subsequent interest. The petitioner obtained the signature of the respondent in blank promissory note and misused the same to file the suit. Against which, the respondent filed a private complaint against the petitioner in STC.No.6732 of 2022 before the IV Fast Track Court at Saidapet, Chennai. After filing the suit, the petitioner never contacted the respondent over phone as alleged and the teleconversation cannot be received as documents since the same was done without the knowledge and consent of the respondent, and for the above act, the respondent is entitled to file a criminal case against the petitioner.
6. The learned counsel for the respondent further submitted that https://www.mhc.tn.gov.in/judis 4/12 C.R.P.No.1020 of 2023 the Electronic Records i.e. the Compact Disk (CD) and tele conversation transcription have been recorded behind the back of the respondent and the petitioner has not complied the condition stipulated under Section 64 B of the Indian Evidence Act. Moreover, he submitted that, unless the accuracy of the recording is proved and voice is identified by obtaining expert opinion and also the authenticity and veracity of the document is proved in the manner known to law, Court cannot receive the documents since there is chance for tampering and duplication of the voice.
7. Heard the learned counsel for the petitioner and learned counsel for the respondent, and perused the materials on record.
8. Now, the issue to be decided in this case is as to whether the Compact Disc and Call History Transcription of the teleconversation between the petitioner and respondent can be received as additional evidence in the suit.
9. In Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and Ors. (14.07.2020 – SC) : MANU/SC/0521/2020, the Hon’ble https://www.mhc.tn.gov.in/judis 5/12 C.R.P.No.1020 of 2023 Supreme Court has explained how electronic records have to be proved and the relevant portions are extracted hereunder :
“59. We may reiterate, therefore, that the certificate required Under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly “clarified” in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D. 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose.
50. We may hasten to add that Section 65B does not speak of the stage at which such certificate must be furnished to the Court. In Anvar P.V. (supra), this Court did observe that such certificate must accompany the electronic record when the same is produced in evidence. We may only add that this is so in cases where such certificate could be procured by the person seeking to rely upon an electronic record. However, in cases where either a defective certificate is given, or in cases https://www.mhc.tn.gov.in/judis 6/12 C.R.P.No.1020 of 2023 where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned.
This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case. When it comes to criminal trials, it is important to keep in mind the general principle that the Accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant Sections of the Code of Criminal Procedure.
72…..(b) The clarification referred to above is that the required certificate Under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means https://www.mhc.tn.gov.in/judis 7/12 C.R.P.No.1020 of 2023 of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate Under Section 65B(4). The last sentence in Anvar P.V. (supra) which reads as “...if an electronic record as such is used as primary evidence Under Section 62 of the Evidence Act...” is thus clarified; it is to be read without the words “Under Section 62 of the Evidence Act,...” With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.
10. The Hon’ble Division Bench of Madras High Court, in its recent decision in Vikram Jesudasen and Ors. Vs. Suresh Kumar and Ors. (24.07.2023 – MADHC) : MANU/TN/4459/2023, while relying on Arjun Panditrao Khotkar case has held that certificate under 65(B) can be produced at a later stage, the relevant portion is extracted hereunder :
“On a reading of the above observations of the Hon’ble Supreme Court, it would be clear that production of certificate under Section 65-B of the Act is a condition precedent to the admissibility of evidence. However, the stage at which the same can be permitted to be produced is left to the discretion of the trial Judge before whom the evidence is sought to be let in. We find that the plaintiffs/respondents as well as the learned Judge even while the documents were sought to be marked, had https://www.mhc.tn.gov.in/judis 8/12 C.R.P.No.1020 of 2023 proceeded to do so without the certificate under Section 65 B of the Act, by placing reliance on the judgment in Shafhi Mohammed case, which is now overturned. When the decision in Shafhi Mohammed case being overturned, the appellant’s request to submit the certificate under Section 65B of the Act cannot be rejected merely for the reason that such certificate was not furnished at the time of production of evidence. We find that the learned Judge had no occasion to apply his mind to the discretion which he needs to exercise viz., either to permit or reject production of certificate under Section 65B of the Act, albeit by reopening the case for examining the 6th defendant. Therefore, we set aside the impugned order and remand the matter to the learned Judge to examine, whether in the circumstances of the case there is a need to exercise the discretion to permit or reject the request to reopen the case as sought for by the plaintiffs/respondents to examine the 6 defendant and permit them to produce the certificate in terms of Section 65-B of the Act and thereafter, pass appropriate orders, on merits and in accordance with law, within a period of eight weeks from the date of receipt of a copy of this order.”
11. On perusal of the above said judgments, it would be clear that the production of 65-B certificate under Indian Evidence Act is mandatory for producing CDR’s as evidence in the suit. But the Non- https://www.mhc.tn.gov.in/judis 9/12 C.R.P.No.1020 of 2023 Production of 65B certificate is a curable defect and it can be produced at any time before completion of trial. Hence, the order of the Trial Court in dismissing the application under Order VII rule 14(3) for non production of 65 B certificate is not justifiable.
12. Accordingly, this Civil Revision Petition is allowed. The order passed by the Learned XXIII Additional Judge, City Civil Court, Chennai in I.A.No.3 of 2022 in O.S.No.4795 of 2022 is set aside. No costs. Consequently, connected miscellaneous petition is closed.
02.11.2023 raja Index : yes/no Internet : yes/no To The XXIII Additional Judge, City Civil Court, Chennai. https://www.mhc.tn.gov.in/judis 10/12 C.R.P.No.1020 of 2023 https://www.mhc.tn.gov.in/judis 11/12 C.R.P.No.1020 of 2023 V.BHAVANI SUBBAROYAN.J., raja C.R.P.No.1020 of 2023 and C.M.P.No.7384 of 2023 02.11.2023 https://www.mhc.tn.gov.in/judis 12/12