Delhi District Court
Abhishek Singh vs Samarjeet Singh on 25 February, 2025
IN THE COURT OF MS. SHILPI SINGH
ACJ-cum-CCJ-cum-ARC, SOUTH
DISTRICT COURTS COMPLEX, SAKET, NEW DELHI
Suit no. 361/2024
CNR No.DLST030006652024
Abhishek Singh
S/o Sh Anoop Singh
R/o F-5/8, Ground Floor, Vatika India Next
Sector-82, Gurugram, Haryana-122004 ...............Plaintiff
Versus
Samarjeet Singh
Son of Sh. Shyam Bahadur Singh
R/o 830, New Sector,
Aliganj, Lucknow, UP .............Defendant
Nilesh Bhagat
S/o Sh Vijay Bhagat
R/o A-32, S4, Neb Sarai
New Delhi-110068 .......Pro Forma Defendant
Date of Institution : 14.05.2024
Date of Pronouncement : 25.02.2025
Decision : Dismissed.
CS SCJ No.361/2024 Abhishek Singh vs Samarjeet Singh & Ors Page No. 1 of 8
Digitally
signed by
SHILPI
SHILPI SINGH
SINGH Date:
2025.02.25
16:49:29
+0530
SUIT FOR RECOVERY OF RS.2,00,00/- (RUPEES TWO LACS)
ALONG WITH PENDENTE -LITE INTEREST.
JUDGMENT
PLAINT:
1. Succinctly, the case of the plaintiff is that the pro forma defendant is the friend of the plaintiff and he met the defendant through him and in the month of April 2022, the defendant, through pro forma defendant approached him seeking a friendly loan of Rs. 2,00,000/- for a period of three months. As per the plaintiff, the pro forma defendant was also advancing the defendant a loan of Rs. 2,00,000/- and considering his relation with the pro forma defendant, he agreed to advance the loan and the defendant accordingly executed a receipt/ agreement acknowledging the loan with a promise to return the same to the plaintiff and pro forma defendant by 02.06.2022. The plaintiff submits that he advanced Rs. 2,00,000/- to the defendant through cheque bearing number 764031, which was encashed by the defendant on 30.04.2022 and so did the pro forma defendant, however, on the expiry of period on which the amount was to be returned, the defendant informed the plaintiff that his money was stuck and he has fallen short of funds and though he made efforts to get the money back, the defendant failed to make the payment.
2. For cause of action, the plaintiff has said that it last arose when the legal notice was sent and the defendant on 12.01.2024 and he did not CS SCJ No.361/2024 Abhishek Singh vs Samarjeet Singh & Ors Page No. 2 of 8 Digitally signed by SHILPI SHILPI SINGH SINGH Date:
2025.02.25 16:49:34 +0530 make the payment despite expiry of 15 days after notice. For territorial jurisdiction, the plaintiff said that the deal was finalized at the premises of pro forma defendant, which is within the jurisdiction of this Court.
3. Summons of the suit were sent to the defendants and the pro forma defendant was served on 08.07.2024 and, the counsel for the defendant entered appearance on 11.07.2024. The defendant never filed their reply and later, their counsel never appeared and thus, the defence of the defendant was struck off and he was proceeded ex parte on 08.10.2024.
EX PARTE EVIDENCE LEAD BY PLAINTIFF:
4. During ex parte evidence, the plaintiff examined himself as PW1 and filed his evidence by way of affidavit I.e Ex. PW1/A in consonance with the averments raised in the plaint and further relied upon the following documents:
i. Ex PW-1/1 (colly- 2 pages) I.e copy of receipt cum agreement between plaintiff and the defendant along with copy of affidavit.
ii. Ex PW-1/2 (colly- 2 pages) I.e bank account statement of the plaintiff from 26.04.2022 to 02.01.2023.
FINAL ARGUMENTS AND APPRECIATION OF EVIDENCE:
CS SCJ No.361/2024 Abhishek Singh vs Samarjeet Singh & Ors Page No. 3 of 8
Digitally
signed by
SHILPI
SHILPI SINGH
SINGH Date:
2025.02.25
16:49:40
+0530
5. During final arguments, the Ld. Counsel for the plaintiff said that the bank account statement filed by the plaintiff shows that loan of Rs.
2,00,000/- was advanced to the defendant and since despite service, the defendant never appeared, the case of the plaintiff stands proved.
6. I have heard the arguments. In order to prove his case, the plaintiff was required to prove that he gave a loan of Rs. 2,00,000/- to the defendant and that the defendant acknowledged the same through Ex PW-1/1 (OSR). As per Ex PW-1/1, the defendant acknowledged the receipt of amount of Rs. 2,00,000/- from the plaintiff and promised to return the same by 02.06.2022. To further substantiate the advancement of loan, the plaintiff has relied upon Ex PW-1/2 as per which on 30.04.2022, cheque bearing number 764031 was allegedly credited in the account of defendant on 30.04.2022. Perusal of both these documents would show that the factum of alleged payment of loan by the plaintiff to the defendant could only be proved through Ex PW-1/2 as Ex PW-1/1 only says that the alleged loan was advanced by the plaintiff through cheque bearing number 76403 and the proof to show that this cheque was allegedly credited in the account of the defendant is sought to br proved through Ex PW-1/2 (colly). However, Ex PW-1/2 is neither signed and stamped by a bank witness nor any bank witness was called to prove this statement. Furthermore, Ex PW-1/2 (colly) is a printout of account statement, which is not accompanied with certificate u/s 65B Evidence act. Without the said certificate, the docmunet cannot be read into evidence as was explained in the judgment passed by CS SCJ No.361/2024 Abhishek Singh vs Samarjeet Singh & Ors Page No. 4 of 8 Digitally signed by SHILPI SHILPI SINGH SINGH Date:
2025.02.25 16:49:45 +0530 Hon'ble High Court of Delhi in ICICI Bank Ltd. v. Kamini Sharma & Anr. RFA 297/2015:
"14. Section 34 of the Evidence Act clearly provides that the books of accounts maintained in electronic form are relevant. Under Section 62 of the Evidence Act, original documents constitute primary evidence. In the context of electronic evidence, printouts of electronic documents are considered as secondary. However, judicial notice needs to be taken of the fact that most accounts today are not maintained in paper form, but electronic form. The primary evidence could be the server on which the statement of accounts is stored. These servers may store the statement of accounts of multiple clients in the hard drive. It would be an impossibility to require the Plaintiff bank to produce the hard drive of the server in every suit for recovery filed by it. Under such circumstances, the Plaintiff bank has no option but to produce the secondary evidence i.e., a printout of statement of accounts, duly certified by a responsible official of the bank along with a certificate under Section 65B of the Evidence Act. Needless to add, the certificate under Section 65B of the Evidence Act has now become a usual practice in almost all of the suits, inasmuch as, in every such suit, parties are bound to place reliance on electronic documents. The mere fact, that the printout is being filed as secondary evidence along with the necessary certificate, does not make it any less valid. The said accounts statement would be rebuttable if any discrepancy is found or pointed out. But in the absence of the same, there is no reason as to why the statement of accounts filed by the Plaintiff bank should be disbelieved.
7. Further, the requirement of certificate u/s 65B Evidence act with an electronic document was explained by the Hon'ble Supreme Court in Anvar P.V. v. P.K. Basheer AIR 2015 SC 180 while addressing the issue of admissibility of electronic evidence and it was held as under:
"13. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the CS SCJ No.361/2024 Abhishek Singh vs Samarjeet Singh & Ors Page No. 5 of 8 Digitally signed by SHILPI SHILPI SINGH SINGH Date:
2025.02.25 16:49:51 +0530 electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence 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 shall be deemed to be a document only if the conditions mentioned Under Sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions Under Section 65B(2). Following are the specified conditions Under Section 65B(2) of the Evidence Act:
i. The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
ii. The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
iii. During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and iv. The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
"14. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
i. There must be a certificate which identifies the electronic record containing the statement;
CS SCJ No.361/2024 Abhishek Singh vs Samarjeet Singh & Ors Page No. 6 of 8 Digitally signed by SHILPI SHILPI SINGH SINGH Date:
2025.02.25 16:49:56 +0530 ii. The certificate must describe the manner in which the electronic record was produced;
iii. The certificate must furnish the particulars of the device involved in the production of that record;
iv. The certificate must deal with the applicable conditions mentioned Under Section 65B(2) of the Evidence Act; and v. The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
"15. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice."
"16. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence....17. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements Under Section 65B of the Evidence Act are not complied with, as the law now stands in India....22. The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence Under Section 63 read with Section 65 of the Evidence Act shall yield to the same....Generalia special bus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same CS SCJ No.361/2024 Abhishek Singh vs Samarjeet Singh & Ors Page No. 7 of 8 Digitally signed by SHILPI SHILPI SINGH SINGH Date:
2025.02.25 16:50:04 +0530 is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements Under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
8. The above law would show that the Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements Under Section 65B of the Evidence Act are not complied. Since, in the facts of this case, Ex PW-1/2 is not supported with the requisite certificate u/s 65B Evidence act, the document is not admissible. In the absence of the same, there is no evidence on record to say that the case of the plaintiff is proved. Even though the case of the plaintiff has gone unrebutted but due to the absence of any admissible evidence, it cannot be said that he has proved the factum of advancement of loan to the defendant. In view of the same, the suit filed by the plaintiff fails and stands dismissed.
9. File be consigned to the record room after indexing and pagination.
Announced in the open Court (SHILPI SINGH)
on 25.02.2025 ACJ-CCJ-ARC/South,
Saket Court/Delhi
CS SCJ No.361/2024 Abhishek Singh vs Samarjeet Singh & Ors Page No. 8 of 8
Digitally
signed by
SHILPI
SHILPI SINGH
SINGH Date:
2025.02.25
16:50:17
+0530