Rajasthan High Court - Jaipur
Shaiwali Paliwal vs Axix Bank Ltd on 28 November, 2017
Author: Alok Sharma
Bench: Alok Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No.1364/2017
Shaiwali Paliwal Wife of Shri Sanjay Paliwal, Caste Brahmin, Aged
About 43 Years, S-54-B, Arvind Marg, C-Scheme, Jaipur, 302001
----Petitioner
Versus
Axis Bank Limited Through Its Vice President and Circle Head
Office, First Floor, Shanti Towers, B-115, Hawa Sadak, Civil Lines,
Jaipur - 302006 ----Respondent
_____________________________________________________
For Petitioner(s) : Mr.R.K. Daga.
For Respondent(s) : Mr.Ashok Mehta Senior Advocate assisted by
Mr.Siddhant Jain.
_____________________________________________________
HON'BLE MR. JUSTICE ALOK SHARMA
Order
28/11/2017
Heard the counsel for the petitioner-plaintiff (hereinafter
'plaintiff') and perused the impugned order dated 17.01.2017
allowing the objections of the respondent-defendant (hereinafter
'defendant') to the admissibility of certain electronic records in the
course of the trial in the suit laid by the plaintiff questioning her
termination from service by the defendant.
Mr.R.K. Daga appearing for the plaintiff has submitted that
the trial court untenably has taken a narrow and restricted view of
the Section 65-B of the Evidence Act, 1872 (hereinafter 'the Act of
(2 of 10)
[CW-1364/2017]
1872') in holding that the certificate requisite under Section 65 -B
(4) of the Act of 1872 must necessarily accompany the electronic
record/documents when filed and if the certificate is subsequently
filed it will be of no avail. Mr.R.K. Daga relied upon the judgment
of this court in the case of Paras Jain Vs. State of Rajasthan
[2016 (2) RLW 945 (Raj.)] to submit that the certificate
requisite under Section 65-B (4) for admissibility of electronic
record as evidence in a trial could be subsequently filed. Emphasis
was laid on Para 15 in Paras Jain Vs. State of Rajasthan which
reads as under:-
15. Although, it has been observed by Hon'ble
Supreme Court that the requisite certificate must
accompany the electronic record pertaining to which a
statement is sought to be given in evidence when the
same is produced in evidence, but in my view it does not
mean that it must be produced alongwith the charge-
sheet and if it is not produced alongwith the charge-
sheet, doors of the Court are completely shut and it can
not be produced subsequently in any circumstance.
Section 65-B of the Evidence Act deals with admissibility
of secondary evidence in the form of electronic record
and the procedure to be followed and the requirements
be fulfilled before such an evidence can be held to be
admissible in evidence and not with the stage at which
such a certificate is to be produced before the Court.
One of the principal issues arising for consideration in
the above case before Hon'ble Court was the nature and
manner of admission of electronic records.
Mr.R.K. Daga further submitted that the judgment in Paras
Jain Vs. State of Rajasthan (supra) was followed in the case of
State of Rajasthan through the Special Public Prosecutor
(3 of 10) [CW-1364/2017] Vs. Sri Ram Sharma and Others reported in S.B. Criminal Misc. Petition No.4383/2016 decided on 02.09.2016 by this court. It was submitted that in the instant case subsequent to the computer generated documents (electronic record) taken on record by the trial court on an application under Order 7 Rule 14 CPC, an affidavit was filed by the plaintiff giving out the Email Ids from which she downloaded the concerned documents also stating the computer used for the process. It was submitted that such affidavit partook the character of the certificate requisite under Section 65-B (4) of the Act of 1872 and based thereon the evidence in electronic form was admissible. The trial court has in the circumstances erred in upholding the objections of the defendant pertaining to the admissibility of such electronic record.
Per contra, Mr.Ashok Mehta, Senior Advocate with Mr.Siddhant Jain appearing for the defendant submitted that for electronic records to be admitted in evidence under Section 65-B of the Act of 1872, it is imperative that the requisite certificate in terms of Sub-section 4 thereof accompanies the said documents purporting to be a downloads of the electronic record. Reliance was placed on the judgment of the Apex Court in the case of (4 of 10) [CW-1364/2017] Anvar P.V. Vs. P.K. Basheer & Others [(2014) 10 SCC 473]. Referring to the Para 17 of the aforesaid opinion of the Apex Court. Mr.Ashok Mehta submitted that for electronic records to be admissible in evidence under Section 65-B of the Act of 1872 they have to be accompanied by a certificate requisite under Sub- Section 4 issued on the same date. Reliance was also placed on the judgment of the Delhi High Court in the case of Ankur Chawla Vs. Central Bureau of Investigation Manu/DE/2923/2014, in support of the contention Mr. Mehta then submitted that an affidavit generally filed in support of the electronic records is of no avail and each electronic record is to be accompanied independently by a certificate referred to Sub- Section 4 of Section 65-B of the Act of 1872. Mr.Ashok Mehta finally submitted that in any event an affidavit filed by the defendant, in support of documents purporting to be downloads of electronic records cannot be equated to a certificate envisaged under Section 65-B (4) of the Evidence Act.
Heard. Considered.
Section 65-B of the Act of 1872 provides that notwithstanding anything contained in the Act any information (5 of 10) [CW-1364/2017] contained in the electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be also a document, if the conditions mentioned in the 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. Sub- Section 4 of the Section 65-B of the Act of 1872 provides that in any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,-
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be (6 of 10) [CW-1364/2017] signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purpose of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. It is indeed true that for admissibility of electronic record in evidence when the electronic record is not in original, provisions of Section 65-B of the Act of 1872 have to be complied with. Thereunder electronic record downloaded is to be supported by a requisite certificate of the downloading, by the person who downloaded the record. However nothing in Section 65-B of the Act of 1872 indicates that the certificate requisite under Section 65-B (4) for admissibility of electronic records in evidence should be obtained or signed only simultaneous to the downloading of the electronic record and its conversion into a document admissible in evidence. That the requisite certificate cannot be subsequently issued is not evident from a plain reading of the section in issue. No doubt the Apex Court in the case of Anvar P.V. Vs. P.K. (7 of 10) [CW-1364/2017] Basheer & Others (supra) has observed that the document/s of electronic record should be accompanied by a certificate. But I am of the considered view that the question which arises for consideration in the instant case i.e. whether a certificate in support of document of electronic record should be simultaneously issued and subsequent certificate was impermissible, was not formulated before the court nor so addressed by any reasoning to constitute a ratio decidendi binding on this court. Besides this court in the case of Paras Jain Vs. State of Rajasthan (supra) has specifically stated that though in the case of Anvar P.V. Vs. P.K. Basheer & Others (supra) it was observed that the requisite certificate must accompany the electronic record pertaining to which a statement is given in evidence, it did not necessarily mean that the certificate must be produced along with the electronic record sought to be relied upon before the court or that if not so produced alongwith the document/s of electronic record, evidence in regard thereto would be completely shut out. It was held that there was nothing in the statute to hold that a certificate requisite under Sub-section 4 of Section 65-B of the Act of 1872 could not be subsequently produced in support of the (8 of 10) [CW-1364/2017] electronic record for the purpose of such evidence being admitted before a Court. In Para 15 of Paras Jain Vs. State of Rajasthan (supra) it was stated thus:- "Section 65-B of the Act of 1872 deals with the admissibility of the secondary evidence in the form of electronic records and the procedure to be followed and the requirements to be fulfilled before such an evidence could be admissible in evidence and not with the stage at which the certificate is to be produced before the court."
The judgment of this court in the case of Paras Jain Vs. State of Rajasthan (supra) by this court in State of Rajasthan through the Special Public Prosecutor Vs. Sri Ram Sharma and Others (supra).
The only reason which has prevailed with the trial court in passing the impugned order dated 17.01.2017 upholding the objections of the defendant to the admissibility of the electronic records, submitted by plaintiff in the course of the trial on an application under Order 7 Rule 14 CPC, was that the certificate requisite under Sub-Section 4 of Section 65-B of the Act of 1872 was filed at a subsequent stage and not simultaneously and alongwith the electronic record in the first instance. That view in (9 of 10) [CW-1364/2017] my considered view is the cross-hair of the judgments of the this court in the case of Paras Jain Vs. State of Rajasthan (supra) through State of Rajasthan through the Special Public Prosecutor Vs. Sri Ram Sharma and Others (supra). The reasoning of the impugned order therefore cannot be sustained. It is so held.
I am also not impressed with the contention of Mr.Ashok Mehta that each document purporting to be a print out of electronic record has to be independently accompanied by a certificate and a certificate with requisite particulars generally with regard to multiple documents downloaded does not suffice. Nothing in Sub-Section 4 of Section 65-B of the Act of 1872 leads to such a conclusion. I am also of the considered view that an affidavit filed by the plaintiff with regard to the compliance with Sub-Section 4 of Section 65-B of the Act of 1872 in respect of the multiple electronic records can be treated as the requisite certificate as there appears to be no real difference between the two except the nomenclature.
In view of the aforesaid discussion, I would be inclined to quash and set aside the impugned order dated 17.01.2017 and (10 of 10) [CW-1364/2017] dismiss the objections of the defendant to the admissibility of the electronic record Exhibit 4, Exhibit 12 to 14, Exhibit 16 to 18, Exhibit 21, Exhibit 23 to 25, Exhibit 27, Exhibit 29, Exhibit 31 to 32, Exhibit 38 to 43 at the instance of the plaintiff.
The petition is accordingly allowed.
(ALOK SHARMA) J.
Karan/86