Bangalore District Court
Shivaprasad Sajjan vs R/At No. 560/B on 17 February, 2022
IN THE COURT OF THE LI ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY. (CCH 52)
Dated this the 17th day of February 2022
:PRESENT:
Sri Venkatesh R. Hulgi, B.Com. LL.B(Spl.),
LI Addl. City Civil & Sessions Judge,
Bengaluru City.
Criminal Appeal No. 1911/2018
APPELLANT : Shivaprasad Sajjan,
S/o. Basavaraj M.Sajjan,
Accused R/at No. 560/B, 10th Cross,
'C' Main, 6th Block, Rajaji Nagar,
Bengaluru. 560010.
(By Sri.M.K.Venkatesh, Advocate)
Versus
RESPONDENT : State of Karnataka, by Cyber Crime
P.S. Bengaluru-560 001,
Complainant
(By Learned Public Prosecutor)
JUDGMENT
This appeal under Section 374(3)(a) of Cr.P.C is filed by Appellant/Accused being aggrieved by the Judgment of conviction and order of sentence dated 7.9.2018 passed by 2 Crl. A. No. 1911/2018 the learned 1st ACMM, Bengaluru in CC No.12981/2009 whereby the trial court has convicted the accused for the offence punishable under Section 67 of Information Technology Act 2000 and sentenced him to undergo Simple Imprisonment for two years and also to pay fine of Rs. 25,000/- and in default to undergo Simple Imprisonment for 3 months.
2. Shorn of unnecessary details, the facts of the case sufficient for disposal of the present appeal, if briefly stated are as under:-
That the accused and complainant were classmates in BMS college of Engineering. They had close friendship with each other and taking undue advantage of same, accused made a proposal of marriage to the complainant. When she refused to the proposal made by the accused, being agitated and annoyed the accused went to Sri. Venkateshwara Net Zone, Cyber Cafe, situated at No.417, near bus stop, 6 th block, Rajajinagar and created different E-mail ID's namely [email protected], [email protected], [email protected], [email protected], 3 Crl. A. No. 1911/2018 [email protected], [email protected] and [email protected], and transmitted several lascivious, obscene, pictures and messages to the email IDs of the complainant namely [email protected] and also to her company's colleagues email IDs nchoudhury @sapient.com, [email protected], between May 2008 to August 2008. After perusal of those obscene, lascivious and pornographic pictures and messages, the complainant has filed a complaint at Ex.P-1 against the accused before the jurisdictional police. Consequently the cyber crime police have registered a case against accused pursuant to the said complaint in Crime No. 31/2008 for the offence punishable under Sec. 67 of Information Technology Act 2000. The Investigating officer, after having conducted the detail investigation, has filed chargesheet against the accused for the aforesaid offence.
3. After securing the accused, he was released on bail. The Trial Court, after having completed initial formalities like supplying of copies of prosecution papers to the accused, framed the charge against him for the aforesaid offence. The 4 Crl. A. No. 1911/2018 Charge was read over and explained to the accused. The accused pleaded not guilty of the said charge and he claimed to be tried. Hence, to prove its case, the prosecution has examined 13 witnesses as Pws 1 to 13 before the Trial Court and got marked the documents at Exs.P1 to P52. MOs 1 and 2 are also marked for the prosecution. Ex. D-1 is got marked for the accused in the evidence of prosecution.
4. After the evidence was closed, the statement of accused under Section 313 of Cr.P.C was recorded. Accused had denied every incriminating statements appearing against him, however he did not chose to lead any evidence in his defence. It appears that total denial of the case of prosecution is the defence of the accused.
5. The Trial Court, after having heard the arguments of both the sides and after perusal of the materials placed on record, has passed the impugned Judgment by convicting the accused for the offence punishable under Section 67 of Information Technology Act, 2000 and thereby sentenced him to undergo punishment as referred to above. Thus, not being 5 Crl. A. No. 1911/2018 happy with the said Judgment of conviction and Order of sentence passed by the Trial Court, the Appellant/accused has filed the present appeal on the following among other grounds:
GROUNDS OF APPEAL
(a) That the Judgment of conviction and order of sentence passed by the Trial Court impugned in the present appeal is contrary to law, also facts and circumstances of the case, for it is marred by erroneous findings, improper appreciation of evidence and also inadmissible evidence, wrongful reasoning and flawed application of Sec. 65-B of Indian evidence Act with regard to documents at Ex.P-5 to P-37 and Ex.P-45.
(b) The Trial Court has last sight of the fact that evidence of Pw-1, Pw-3, Pw-6 and Pw-7 is interested versions aimed at seeing the conviction of accused.
(c) The Trial Court has failed to notice that the above witnesses are closely related to each other.
Therefore the trial court has committed a grave error in law and facts in accepting the evidence of aforesaid witnesses in toto. The evidence led by the prosecution both oral and documentary are not as per the Indian evidence act and they have no proper probative value.
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(d) The Trial Court is swayed by the submissions made by the prosecution that this would be the first case of conviction in the state in Cyber crime offence. Thus the conviction recorded by the Trial Court is tainted with malafideness.
(e) The Trial Court has failed to appreciate that the prosecution has failed to prove the genesis of the receipt of complaint. It is doubtful whether the complaint was given by the complainant or some one else. Thus the trial court has failed to appreciate these facts at the threshold which resulted in mis-carriage of justice.
(f) The trial court has failed to note that there is no compliance of provision of Sec. 65-B of Indian Evidence Act with regard to documents marked at Ex. P-5 to P-37. These documents are in admissible in themselves for being devoid of requisite certificate under Sec. 65-B of Indian Evidence Act.
(g) The Trial Court has committed a grave error in applying the dictum laid down by the Apex Court in the case of "Shafi Mohammed Vs. State of Himachal pradesh" in respect of the fact that complainant was admittedly in possession and control of the device from where Ex. P-5 to Ex. P-57 7 Crl. A. No. 1911/2018 were taken out, she ought to have filed certificate under Sec. 65-B of Indian evidence act.
(h) The Trial Court has failed to apply the law laid down by the Apex Court in the case of Anvar P.V. Vs. P.K.Bhasheer & Others 2014 (10) SCC 473. This is a grave error and has resulted in mis-carriage of justice.
(i) In total the trial court has failed to appreciate the position of law with regard to Ex.P-50 certificate and also the evidence of prosecution witnesses in a proper perspective. The reasonings assigned by the Trial Court are illegal and improper. Therefore the judgement and order of conviction passed by the trial court impugned in the present appeal requires interference at the hands of this court.
Hence the appeal.
6. In response to the notice of appeal, learned Spl. Public Prosecutor has appeared for the Respondent State.
7. The Trial Court records are summoned.
8. Heard the arguments of both the sides and perused the material placed on record. Both the sides have submitted 8 Crl. A. No. 1911/2018 written arguments apart from oral submissions. They are accepted and made as part of the record.
9. The following points emerge for my consideration:
1) Whether the Trial Court has committed an error in appreciating the oral and documentary evidence lead by the prosecution to hold that the accused has committed an offence punishable under Sec. 67 of the Information Technology Act 2000?
2) Whether the judgment and order of conviction passed by the Trial Court impugned in the present appeal requires interference at the hands of this court?
3) What order?
10. My findings on the above points are as under;
Point No.1: In the Negative.
Point No.2: In the Negative.
Point No.3: As per the final order for the following;
REASONS
11. Points No.1 and 2: Since these points are interconnected to each other, hence they have been taken 9 Crl. A. No. 1911/2018 together for common discussion to avoid a repetition of facts and evidence on record and also arguments.
12. Admittedly the present appeal is filed by the accused against the judgment and order of conviction recorded by the Trial Court. The trial court has convicted the accused for the offence punishable under Sec. 67 of Information Technology Act 2000 and sentenced him to under go simple imprisonment as well as to pay fine. The offences under the Information Technology Act 2000 are purely technical in nature where the oral evidence of the parties have no significant role to play. Nevertheless, this court being the first Appellate Court, as a final court of facts has to re appreciate the oral and documentary evidence led by the prosecution in a proper perspective to find out whether the impugned judgement and order of conviction recorded by the Trial Court is justifiable in the facts and circumstances of the present case.
13. It is the case of prosecution that accused and complainant being classmates in BMS college of Engineering 10 Crl. A. No. 1911/2018 were very close friends. Taking undue advantage of friendship, it is alleged, that the accused had put a proposal for marriage to the complainant and the complainant has refused the said proposal put by the accused. Therefore, being annoyed by the same, the accused went to a nearby Cyber Cafe and created many E-mail ID's and transmitted several lascivious obscene pictures and messages to the official Email ID of the complainant and also her colleagues Email ID between may 2008 to August 2008. The complainant having came across with such obscene, lascivious and pornographic pictures and messages has sent a complaint at Ex.P-1 addressing to the Dy.S.P. Cyber crime Police, CID, Bengaluru through courier service with attachments requesting to take action against the accused as per Information Technology Act 2000. Accordingly, pursuant to the said complaint, a case was registered against the accused in Crime No. 31/2008 of Cyber crime police station for the offence punishable under Sec. 67 of Information Technology Act 2000. After detail investigation, the investigating Officer found that accused has committed the alleged offences. Therefore, he filed the Chargesheet. 11
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14. To prove the allegations made against the accused, the prosecution has examined the complainant and other supporting witnesses and produced several documents which would be discussed in detail in the following paras.
15. Kum. Ambica Varma is the complainant of the present case. She was examined as Pw-1 in the trial Court. She has deposed before the trial court that she know the accused since 1999 when they were studying together in BMS college of engineering, Bengaluru. She has further deposed that after completion of education, she joined a MNC by name Sapient Corporation at Gurgoan. During the year 2008, she shifted herself to United Kingdom where the firm has its office. She has stated that during her stay at United Kingdom, accused sent several emails containing obscene and pornographic contents to her official male ID and also the male IDs of her colleagues. According to the complainant she received said lascivious and pornographic contents to her Email ID [email protected] from the several email IDs created by the accused. Therefore being fed up with this attitude of the 12 Crl. A. No. 1911/2018 accused, she filed a complaint against him on 11.8.2009 as per Ex.P-1 through courier from United Kingdom along with attachments and also a C.D. which are identified and marked as Exs. P-5 to P-37 and relevant CD is marked as MO1.
16. On perusal of Ex.P-1 complaint it becomes very clear that accused has created several Email IDs and transmitted obscene, lascivious and purient messages and pornographic pictures to the aforesaid email ID of the complainant. At this stage it is to be noted that the complainant, after retrieving those contents from her official laptop, has produced hard copy at Exs. P-5 to P-37 and a soft copy in the form of CD at MO.1. She has been cross-examined at length by the accused. I have carefully gone through the cross-examination of Pw-1 to find out whether any efforts was being made by the accused to distrub the evidence of complainant given in the chief examination. Unfortunately, the accused has failed to elicit any material worth the name from the mouth of complainant to discard her evidence given in the chief- examination. It is pertinent to mention that the accused has failed to further cross-examine the complainant despite 13 Crl. A. No. 1911/2018 several opportunities as could be seen from the order sheet of the trial court. Thus, the evidence of complainant in the chief-examination almost remained unchallenged on material particulars.
17. In the light of oral evidence of the complainant, I have perused the contents of Ex.P-5 to P-37 and also MO.1. It is needless to mention that the contents are per-se lascivious, obscene and purient. Though the accused has denied of having sent those emails, however he failed to made any attempt to discharge his onus.
18. The prosecution examined Pw-13 Narayanaswamy, the then Dy.S.P. Cyber crime Police station, COD, Bengaluru to prove that he has received Ex.P-1 complaint pursuant to which he registered a case against the accused in Cr. No. 31/2008 for the offence punishable under Sec. 67 of Information Technology Act 2000. In his evidence Pw-13 has deposed to the effect that on 11.8.2008 when he was SHO he received Ex.P-1 compliant through courier along with attachments. Pursuant to the said complaint he registered a 14 Crl. A. No. 1911/2018 case in Crime No. 31/2008 and issued FIR as per Ex.P-51. Pw-13 has explained that the courier was also containing a CD which was seized and subjected through PF No. 9/2008. The CD is identified as MO1. His evidence further discloses that on 19.8.2008 with the help of Technical expert Pw-9. Mallikarjuna, he wrote a letter to the Service Provider, Airtel to furnish physical address of user of IP Address as per Ex. P-
6. Again on 21.8.2008 he wrote one more such letter to the service provider to furnish physical address of email user. Later inview of his trasfer to other place, he handed over further investigation to Pw-12 D.Krishna Urs.
19. The cross-examination of this witness indicates that despite writing Ex.P-46, he did not receive any information from the service provider. He has admitted that in Ex.P-47 there is a reference with regard to email dt: 21.8.2008 and not a letter. This witness has identified the attachments sent by complainant which are marked at Ex.P-5 to P-37. Except this nothing more could be madeout from the evidence of Pw- 13 to discard the same.
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20. A combined reading of evidence of Pw-1 and Pw-13, it becomes very clear that pursuant to complaint sent at Ex.P-1 through courier, Pw-13 has registered a case and he addressed a letter to Airtel service provider to furnish physical address of IP addresses in question.
21. The Prosecution has examined Pw-3. G.Rajendra Kumar the uncle of complainant. He was examined to speak about the fact that complainant and accused were studying in BMS college of Engineering during the relevant year and he was aware of accused as one of the friends of complainant. Pw-3 has deposed to the effect that after completion of engineering course Pw-1 joined Sapient at Gurgoan and later she shifted to United kingdom. He has stated that even before the alleged incident accused has harassed the complainant by many way and therefore a complaint was given to the cyber crime police. The accused has tendered apology pursuant to the said complaint. Though he has been cross-examined at length by the accused in person nothing 16 Crl. A. No. 1911/2018 could be madeout in his evidence to discard the same. Ex.P- 52 was marked through this witness, which is the endorsement given by the ACP, Yeshwanthpura subdivision indicating that earlier the accused has accepted his mistake and undertaken not to harass or misconduct with complainant in any manner in future. This document is not seriously challenged by the accused in the cross-examination as could be seen from the evidence of Pw-3.
22. The prosecution has examined the next investigating officer Sri.D.Krishna Urs as Pw-12. According to the prosecution, Pw-12 received further investigation from Pw-13 and completed other investigational formalities and filed the chargesheet. Pw-12 has stated that he took further investigation of the case from Pw-13 on 1.9.2008 and verified the records. On 6.9.2008 he sent a reminder letter to service provider seeking physical address of IP addresses. On 15.9.2008 he received Ex.P-47 containing details of physical address of IP addresses from where the accused has generated the emails sent to the complainant. Ex.P-47 indicates that the inter-net connection was given in the name 17 Crl. A. No. 1911/2018 of one T.ArunKumar and his wife Smt. A.Vanaja. Therefore it is the evidence of Pw-12 that on 4.11.2008 he contacted the above referred Arunkumar and his cyber cafe, he located the cyber cafe at Rajajinagar. Therefore he went to the said cyber cafe with technical expert Mallikarjuna and 2 panchas namely Bagawan who is examined as Pw-6 and Jhon who is examined as Pw-7. It is the evidence of Pw-12 that Pw-6 Bhagavan has produced the photograph of the accused sufficient for identification. Therefore all of them went to Venkateshwara Cyber cafe from where the emails were genetated by the accused and enquired with owner Arunkumar. The said Arunkumar is examined as Pw-4 in the present case. According to Pw-12 after verifying the photograph of accused, Pw-4 Arunkumar has showed the systems operated by the accused. Hence with the help of Pw- 9 Mallikarjuna, he lifted the hardisc by using software and seized the same under a mahazar as per Ex.P-44. He has also seized 2 log registers marked at Ex. P-42 and 43 wherein the accused has made entry regarding his visit to cyber cafe. The said CD is marked as MO2. It is further deposed by this witness that on 2.1.2009 he directed Cw-11 to secure the 18 Crl. A. No. 1911/2018 accused persons and accordingly he produced the accused before him with a report as per Ex.P-49. On the same day he recorded the voluntary statement of accused and by securing the owner of the cyber cafe and Cw-6 Bhagavan das, he identified the accused. Pw-12 has directed the accused to furnish email addresses which were used by him in the cyber cafe and accordingly he disclosed the relevant email addresses. In this behalf he has drawn Ex.P-45 mahazar. Later he sent the seized articles like MO2 harddisc and other relevant articles for cyber forensic analysis to C-DAC and after collecting report at Ex.P-41, he completed the investigation and filed the chargesheet against the accused. He has produced certificate under Sec. 65-B of Information Technology act, which is marked at Ex.P-50. Pw-12 has been examined by the accused in person. In the cross-examination also Pw-12 has reiterated the way in which he identified the physical address of IP addresses and how he approached the above referred cyber cafe and seized the harddisc from the relevant systems and sent them to forensic lab. However, there is some inconsistency in the evidence of Pw-13, which may not go to the root of case of prosecution. He admits that 19 Crl. A. No. 1911/2018 Ex.P-50 do not bear the signature of technical expert. It has no any effect on the case of prosecution as it is purely a technical latches.
23. The trial court has accepted the evidence of this witness by placing reliance on the decision of our Hon'ble High Court reported in (2014)4 Crimes 266. (M.D. Kohiunddin @ Phohinuddin Vs. State) and also the decision of Hon'ble Apex court in the case of Ajay Kumar singh Vs. Flag Officer Commanding in chief and others (2016)9 Supreme Court cases 179.
24. Hence I do not find any irregularities or illegality committed by the trial court in accepting the evidence of investigating officer who has sufficiently spoken about the investigational aspects of the matter.
25. The evidence of Pw-13 discloses that after getting the physical address of the IP addresses from the service provider, he went to the cyber cafe owned by Pw-4, where the offensive emails were generated and got identified the accused by 20 Crl. A. No. 1911/2018 showing the photograph to the owner of the cafe and obtained information about the systems being used by the accused and with the help of Pw-9 Mallikarjuna technical expert he retrieved the information in the form of MO2 harddisc and sent all the materials to the C-DAC. For forensic analysis. Though he has been cross-examined by the accused in person, however I find that nothing material worth the name could be madeout to discard the evidence given by the I.O. regarding the above aspects.
26. As noted above Pw-4 Arun kumar is the owner of the Venkateshwara cyber cafe located in 6th block, Rajajinagar, Bengaluru. In his evidence Pw-4 has deposed to the effect that in the year 2008 Pw-12 had visited Venkateshwara net zone and after showing the photograph of the accused got identified him. It is the evidence of Pw-4 that as per the directions of Pw-12 he has shown the systems being used by the accused during his visit and also the relevant registers marked at Ex.P-42 and P-43. According to Pw-4, Pw-12 with the assistance of Pw-9 has seized MO2 hardisc from another system. The relevant entries in Ex.P-42 and P-43 registers 21 Crl. A. No. 1911/2018 are marked as Ex.P-43(a) and P-43(b) respectively. Though he has been cross-examined by the accused in person, however no material is madeout to discard the evidence of Pw-4.
27. Pw-5 Mahendra Kumar is the brother of Pw-4, wherein he has sufficiently spoken about the seizure of harddisc and about Ex.P-45 Mahazar. Thus the evidence of Pw-4 and 5 remained unchallenged which supports the case of prosecution.
28. Pw-6 Bhagavandas and Pw-7 Jhon are the attesting witnesses to Ex.P-44 mahazar through which Pw-12 has seized MO2 harddisc from Venkateshwara net zone. They have sufficiently spoken about these aspects of the matter. Though they have been cross-examined by the accused in person, but no material could be made out in their cross- examination to say that they are deposing falsely before the court. It is submitted that Pw-3 and Pw-6 being the relatives of complainant and interested witnesses, therefore their evidence cannot be accepted. To this argument the trial 22 Crl. A. No. 1911/2018 court has placed reliance on the decision of Hon'ble Apex court in the case of Gajoo Vs. State of Uttarakand (2009)9 SCC 532 to hold that the evidence of related witnesses can not be discarded in toto as the testimony found to be otherwise credible and trustworthy and corroborated by other evidence. Thus, I find no illegality is being committed by the trial court in accepting the evidence of aforesaid witnesses by virtue of the ratio laiddown by the hon'ble Apex court in the aforesaid decisions.
29. Pw-8 Stanly is the noodle officer of Bharathi Airtel, who has spoken about furnishing of IP details. Accordingly he provided the required details to the I.O. vide letter at Ex.P-
47. On perusal of Ex.P-47 it is evident that they take the source of generation of emails of Venkateshwara net zone owned by Pw-4 Arunkumar and his wife Smt.A.Vanaja. Thus this document coupled with evidence of Pw-8 and evidence of Pw-4 indicates that the accused has generated those emails at Ex.P-5 to P-37 from Venkateshwara net zone at Rajajinagar. The above evidence is not at all shaken during cross-examination of any of the witnesses. Hence the trial 23 Crl. A. No. 1911/2018 court has accepted the evidence of these witnesses to hold that the prosecution has proved its case that the accused has generated those lascivious and pornographic emails from the aforesaid cyber cafe.
30. Pw-9 Mallikarjuna is the technical expert working in Crime crime PS, CID. Bengaluru and he has spoken about his role regarding seizure of MO2 harddisc under mahazar at Ex.P-44 except suggesting that he has taken copy of MO2 harddisc. Nothing has made out in the evidence of Pw-9 to doubt his varasity.
31. Pw-10 Srinivas deposed about arrest of accused on 3.1.2009 and producing him before the I.O. Thus it supports the case of prosecution that the accused was arrested from his home and produced before the I.O.
32. Pw-11 Ramachandra rao has also spoken about these aspects and he has stated that he produced the accused before Pw-12 with a memo as per Ex.P-48. Except suggesting 24 Crl. A. No. 1911/2018 that accused was arrested on 3.1.2009, nothing has been made out in the cross-examination of this witness.
33. Pw-2 Sathish Kumar K is an Expert. He has examined Exs. P-5 to P-37 and also Mos 1 and 2 and he has given his report as per Ex.P-41. His evidence goes to show that he was a senior engineer working in C-doc and expert witness in examining the digital storage media. Thus he has given evidence regarding examination of MOs harddisc and giving opinion as per Ex.P-41, wherein he has clearly mentioned that the accused has sent pornographic and lascivious emails to the official email ID of the complainant [email protected] he has noted a keyword 07.jpg. According to him after examination of documents he found that Exs. P-5 to P-37 documents were generated from the aforesaid cyber cage as evidenced by MO1 harddisc. There is no cross-examination of Pw-2. Hence, evidence of Pw-2 remained unchallenged.
34. Thus, by examining the aforesaid witnesses the prosecution has ably proved its case beyond any reasonable 25 Crl. A. No. 1911/2018 doubt. I agree that there are some inconsistencies, contradictions in the evidence of above witnesses. However they do not go to the root of the matter as has been held by the trial court. Therefore in so far as the appreciation of oral and documentary evidences referred to supra by the trial court, I do not find that it has committed any irregularities and mistake in appreciation of evidence. Hence the findings given by the trial court with regard to the factual aspect of the matter is concerned it does not require interference at the hands of this court.
35. The learned advocate for appellant has vehemently submitted that the Trial court has committed a grave error in relying upon the documentary evidence at Ex.P-5 to P-37 and CD at MO1 in accepting the case of prosecution. According to the learned counsel these documents are not supported by a certificate of complainant as required under Sec. 65-B of Indian Evidence Act. Therefore the findings given by the trial court are illegal and liable to be set-aside. To support his arguments the learned advocate for appellant has referred to a decision of Hon'ble Apex court reported in 2020 SCC 26 Crl. A. No. 1911/2018 online SC 571(Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others).
36. It is not in dispute that Ex.P-5 to P-37 are the documents retrieved from the official laptop being used by the complainant. MO1 CD is the soft copy of the Exs. P-5 to P-
37. During the trial the prosecution has produced Ex.P-50 the certificate given by the investigating officer authenticating the contents of above documents and also the contents of harddisc at MO2. A perusal of said certificate, it becomes quite clear that it is as per the provisions of Sec. 65-B sub Sec. 2 of the Indian evidence Act. Accordingly the I.O. has given Ex.P-50 certificate as required U/sec. 65-B Sub Sec. 4 of evidence act. It is pertinent to mention that during trial, the prosecution has also produced certificate given by the complainant under the aforesaid provision of law on 9.2.2018. However the reconstructed copy of the same is produced along with the appeal papers.
37. It is worth to note that at the time of marking of Exs. P-5 to P-37 and MO1, the accused has not taken any objections for that. It is true that certificates were not 27 Crl. A. No. 1911/2018 produced along with the chargesheet. However they were produced subsequently.
38. In Anwar P.V. Vs. P.K.Basheer (AIR 2015 SC 180) the hon'ble Apex court has held that "Any documentary evidence by way of the Electronic record under the Evidence Act, inview of Secs. 59 and 65-A, can be proved only in accordance with the procedure prescribed under Sec. 65-B of the evidence act which deals with admissibility of electronic record. It is stated that such certificate must accompany the electronic records while they are introduced in evidence".
39. Later in the case of State Vs. M.R. Hiremath (2019 Crlj page 3255). The hon'ble Apex court while reiterating the law laiddown by it in P.V.Anwar's case in para 16 has held that: the need for production of such certificate would arise when the electronic record is sought to be produced in evidence at the trial. It is at that stage the necessity of production of certificate would arise." 28
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40. By reiterating the law laiddown in the aforesaid two decisions, the hon'ble Apex court in the recent decision in the case of Arjun Panditrao Khotkar referred to supra in para 8- has held that Sec. 65-B (4) certificate can be produced to lead secondary evidence i.e., the outputs of the computer and the certificate can be produced at the time of introducing the electronic evidence in evidence."
41. If we consider the instant case in the light of the preposition of law laid down in the aforesaid decisions, here also at the first instance the prosecution has produced Ex. P- 50 certificate under Sec. 65-B of evidence act issued by the I.O. Later on 9.2.2018 the prosecution has produced Sec. 65- B certificate issued by the complainant of which reconstructed document is produced along with appeal papers. Therefore in my opinion there is a substantial compliance of provision of Sec. 65-B of Indian Evidence Act by the prosecution in proving the material electronic evidence. Hence I am unable to accept the aforesaid objections taken by the learned counsel for appellant. The Trial court by considering the law laid down by the Apex court in the case of 29 Crl. A. No. 1911/2018 P.V.Anwar Vs. P.K.Basheer and also in the case of Sonu @ Amar Vs. State of Hariyana (27)3 SCC Crime page 6063 has held that the prosecution has proved the contents of Ex.P-5 to P-37 and also MOs No.1 and 2. Hence said findings of the trial court cannot be interfered by this court without any substance in the grounds urged by the appellant.
42. Thus on perusal of the trial court judgment impugned in the present appeal, I am of the opinion that the trial court has dealt with oral as well as documentary evidence on record in detail very extensively and has come to a proper conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt. Thus I have no reason to interfere with such a well reasoned judgment. Hence for the reasons and discussions made above, I am of the opinion that the judgment of conviction and order of sentence passed by the trial court do not call for any interference at the hands of this court. Consequent upon my above discussions, I answer the Points No.1 and 2 in the Negative.
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43. Point No.3:- In the result, I proceed to pass the following:
O R D E R The Criminal appeal filed by the accused/appellant U/Sec.374(3)(a) of Cr.P.C., is hereby dismissed.
The Judgment of conviction and order of sentence dated; 7.9.2018 passed by I ACMM Court, Bengaluru, in CC No.12981/2009, is hereby confirmed.
No order as to costs.
The Office is directed to return the entire LCRs to the Trial Court, along-with the copy of this Judgment forthwith.
(Dictated to the Judgment writer, transcribed and computerized by her, the same is corrected, signed and then pronounced by me on this the 17th day of February 2022) (VENKATESH. R. HULGI) LI Addl. City Civil & Sessions Judge, BENGALURU.
31 Crl. A. No. 1911/2018 32 Crl. A. No. 1911/2018 (Judgment pronounced in the open court to day vide separate judgement. Operative portion reads as under) OR D E R The Criminal appeal filed by the accused/appellant U/Sec.374(3)
(a) of Cr.P.C., is hereby dismissed.
The Judgment of conviction and
order of sentence dated; 7.9.2018
passed by I ACMM Court,
Bengaluru, in CC No.12981/2009,
is hereby confirmed.
No order as to costs.
The Office is directed to return
the entire LCRs to the Trial Court,
along-with the copy of this
Judgment forthwith.
(VENKATESH.R.HULGI)
LI Addl.City Civil & Sessions Judge,
Bengaluru City.
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