Madras High Court
Vikram Jesudasen vs Suresh Kumar on 24 July, 2023
Author: R.Mahadevan
Bench: R.Mahadevan, Mohammed Shaffiq
OSA No.46 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.07.2023
CORAM:
THE HONOURABLE MR. JUSTICE R.MAHADEVAN
AND
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
O.S.A. No.46 of 2022
and
C.M.P. No. 3155 of 2022
1.Vikram Jesudasen
2.Ranjit Jesudasen … Appellants/Defendants 1 & 3
-vs-
1.Suresh Kumar
2.Rekha Jain
3.Chandan Kumar
4.Pramila Jain
5.Naresh Kumar
6.Varsha Jain … Respondents / Plaintiffs
7.Ajit Jesudasesn
8.Tara Lindsay
9.Maya Kumarswami
10.Cecil Joseph
11.Tamara Lindsay ... Respondents/Defendants 2,4,5,6 & 7
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OSA No.46 of 2022
Prayer: Original Side Appeal is filed under Order 36 Rule 1 of the Original
Side Rules read with Clause 15 of the Letters Patent, praying to set aside the
order dated 04.02.2022 passed by the learned Judge in C.S.No.375 of 2005.
For Appellants : Mr.George Cheriyan
For Respondents : Mr.R.Parthasarathy, Senior Advocate
for R1 to R6
JUDGMENT
(Judgment of the Court was made by MOHAMMED SHAFFIQ,J.) The question that arises for consideration in this appeal revolves around the scope and ambit of Section 65 B of the Evidence Act, 1872 (hereinafter referred to as “Act”).
For the sake of convenience, we shall refer to the parties in terms of their ranking in the suit in CS.No.375 of 2005.
2. Brief Facts:
a) The respondents 1 to 6 herein are the plaintiffs in the suit and they laid the same for specific performance based on an oral agreement for sale of 2/16 https://www.mhc.tn.gov.in/judis OSA No.46 of 2022 schedule mentioned property owned by the defendants 1 to 5. The appellants herein are the 1st and 3rd defendants in the suit. The Chartered Accountant and the daughter of the 4th defendant were arrayed as the 6th and 7th defendants in the suit and are the 10th and 11th respondents herein.
b) The claim to the schedule mentioned property was made on the basis of an oral agreement. To prove/establish the said oral agreement, the plaintiffs / respondents herein relied on copies of e-mails stated to be exchanged between the 6th and 7th defendants which were produced as Plaint documents.
c) During trial, the plaintiffs / respondents had taken out two applications in A.Nos.4184 and 4185 of 2017 for summoning the 6th and 7th defendants with a view to prove the E-mails exchanged between the two, which were relied upon in the plaint. An order dated 20.09.2017 came to be passed in application A.No.4184 of 2017, that trial was directed to be continued and the plaintiffs were to take notice on the defendants 6 and 7 and try to obtain the certificate under Section 65-B of the Act.
d) Subsequently, another application in A.No.961 of 2018 was taken out by the plaintiffs seeking permission to examine the 6th defendant in the suit viz., V.R.Cecil Joseph, De Bene Esse before examination of any of the plaintiffs / respondents herein. The said application was partly allowed vide 3/16 https://www.mhc.tn.gov.in/judis OSA No.46 of 2022 order dated 15.02.2018 on the basis of consent of both parties that the 6th defendant will be examined after the examination of PW1 is completed.
e) Thereafter, two other applications in Appln.Nos.2160 and 2161 of 2018 came to be filed. The Appln.No.2160 of 2018 was filed to permit the plaintiffs to produce certain documents which are xerox copies of the transcripts of the e-mail correspondence between the plaintiffs and the 6 th defendant, and the Appln.No.2161 of 2018, was filed to permit the plaintiffs to file additional proof affidavit of PW1. Both these applications were allowed on 13.03.2018. While disposing of the said applications, the learned Judge, after referring to the judgments of the Hon’ble Supreme Court in the case of Shafhi Mohammad v. The State of Himachal Pradesh [(2018) 2 SCC 801], Anvar P.V. v. P.K.Basheer [(2014) 10 SCC 473] and in the case of Sonu @ Amar v. State of Haryana [(2017) 8 SCC 570], and having found that the permission that is sought for is only to produce the document, was of the opinion that the question of admissibility or authenticity or requirement of certificate and whether the plaintiffs / respondents herein are in a position to obtain the certificate under Section 65-B (4) of the Act, are matters to be gone into at the time when the documents are actually sought to be marked. Further, the learned Judge, having found that these were the documents to show that the plaintiffs / respondents 4/16 https://www.mhc.tn.gov.in/judis OSA No.46 of 2022 herein were ready and willing to perform their part of the contract, was of the view that the application could not be thrown out at the threshold denying even an opportunity to produce these documents. For better appreciation, the relevant portions of the said order dated 13.03.2018 are extracted below:
“8. The plaintiffs/applicants would also claim that they had arranged for availing loan from ICICI bank for the purpose of purchasing the property and in order to show the readiness and willingness they had produced plaint document Nos.19,20 and 22. It is stated that the original of those documents have been misplaced and they seek permission to mark the Xerox copies.
9.Those documents are only the documents which would show that the plaintiffs were ready and willing to perform their part of the contract. Therefore, I am of the opinion that the plaintiffs could be allowed to produce the Xerox copies of those documents.”
f) The above view was reiterated yet again by the learned Judge in the interim order dated 28.06.2018 passed in C.S.No.375 of 2005, wherein, following Shafhi Mohammad case the plaintiffs were permitted to mark the documents without any certificate as required under Section 65-B of the Act.
The relevant portion of the order is extracted hereunder:
“13. In the instant case admittedly, the electronic records, in question, which are sought to be marked in evidence by this plaintiffs are E-mail communications said to have been sent by the 6th defendant to the 7th defendant. According to the plaintiffs, the copies of the Emails were handed over to the plaintiff by the 6th defendant. The Emails communications were emanated from the devices in possession of the defendants 6th& 7th. In such circumstances the plaintiff who is not being in control of the devices could not procure 5/16 https://www.mhc.tn.gov.in/judis OSA No.46 of 2022 any certificate from the persons in operation of the relevant devices. In the said circumstances, as per the law laid down by the Hon’ble Supreme Court in Shafhi Mohammed V. State of H.P., (2018) 2 SCC 801, the plaintiffs are permitted to mark the documents without any certificate as required under Section 65-B(4) of the Evidence Act and the question referred to this Court is answered accordingly.
14. Since the matter has been placed before this Court only to decide question as to the admissibility of the electronic records, in question, this Court is not inclined to give any further direction on the subject. The learned Additional Master-II is directed to mark the electronic records in question, produced by the plaintiffs.” (emphasis supplied)
g) The above order dated 28.06.2018 came to be challenged by the defendants 1 and 3 by way of an appeal in O.S.A.No.267 of 2018. A Division Bench of this Court vide judgment dated 23.07.2018, dismissed the said appeal, while observing as under:
“3. Learned counsel appearing for the appellants would contend that the learned Single Judge did not go into the authenticity of the documents sought to be marked. We are afraid that such contention cannot be countenanced. The learned single Judge merely permitted the plaintiffs to mark the documents. Thus, it is well open to the appellants to raise their contentions at a later point of time. This also will include relevancy and proof.
4. With the aforesaid observation, the Original Side Appeal stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.”
h) On 04.02.2022, when the suit in C.S.No.375 of 2005 was taken up for hearing, the learned Judge held that there is no need to summon the 6th 6/16 https://www.mhc.tn.gov.in/judis OSA No.46 of 2022 defendant again. Whileso, the judgment of the Hon’ble Supreme Court in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and others [(2020) 7 SCC 1] was delivered, wherein on reference, it was clarified that the certificate under Section 65B (4) of the Act is a condition precedent to the admissibility of evidence by way of electronic record, as held in P.V.Anvar case, while overruling the judgment in Shafhi Mohammad’s case. The plaintiffs sought for permission to reopen the case to examine the 6th defendant as there was also a need to produce the certificate under Section 65B of the Act as the E-mails were submitted without the certificate provided under Section 65B of the Act.
i) The learned Judge in the order impugned herein, found that the certificate under Section 65-B of the Act was not required inasmuch as the very same set of e-mails have already been produced by the 6th defendant as the owner of the computer and that as long as admissible evidence is available on record, it does not make any difference whether the same is supported by a certificate under Section 65-B of the Act or otherwise. The relevant portions of the order dated 04.02.2022 are extracted hereunder:
“7. Admittedly, Ext.P.18 to Ext.P28 are part of Ext.C-2 series produced by D6. The only difference is that while Ext.P.18 to Ext.P26, Ext.P27 & Ext.P28 are the copies of Emails handed over by the sixth defendant to the plaintiff, 7/16 https://www.mhc.tn.gov.in/judis OSA No.46 of 2022 Ext.C-2 series are the very documents that he had produced as the owner of the computer. Now, as long as admissible evidence are available on record, it does not matter if the documents produced by plaintiff namely Ext.P.18 to Ext.P26, Ext.P27 & Ext.P28 are unsupported C.S.No.375 of 2005 by certificate under Section 65-B. What difference it is going to make in seeking the plaintiffs to prove a set of documents by the production of certificate under Section 65-B(4), when the very documents are already available as admissible documents produced by the 6th defendant and marked as Ext.C-2 series. Therefore, this Court holds that there is no need to summon the sixth defendant again.” (emphasis supplied)
3. Aggrieved by the aforesaid order dated 04.02.2022 in C.S.No.375 of 2005, the defendants 1 and 3 have preferred the present appeal before this court.
4. The appellants have challenged the impugned order of the learned Judge inter alia on the following grounds:
a) That the order of the learned Judge is contrary to the law laid down by the Hon'ble Supreme Court in Arjun Pandit Rao case, reported in (2020) 7 SCC 1.
b) That only copies of electronic evidence in the form of E-mails were produced by the 6th defendant and marked as C1 and C2 series, however, the certificate as provided under Section 65-B was not produced and thus, the evidence is inadmissible.
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c) That the plaintiffs had adequate opportunity to demand the 6 th defendant to produce the certificate in terms of Section 65B of the Act in support of the electronic evidence. However, it is not open to the plaintiffs at this belated stage of final arguments to seek reopening of evidence of 6th defendant for the purpose of producing the Section 65 B certificate.
5. To the contrary, it was submitted by the learned counsel for the plaintiffs / respondents that the certificate in terms of Section 65 B of the Act was not produced only in view of the judgment of the Hon’ble Supreme Court in Shafhi Mohammad case which had taken the position that the certificate under Section 65B of the Act is not mandatory which was also followed by the learned Judge in his order dated 28.06.2018. The plaintiffs had thus proceeded on the bona fide belief that the law in Shafhi mohammed case ought to be followed and conducted themselves in accordance with the same. It was also submitted that if the plaintiffs are not provided with an opportunity to reopen the case for examining the 6th defendant and to produce the certificate under Section 65B of the Act, they would be subject to grave prejudice.
6. Heard both sides. Perused the materials on record. 9/16 https://www.mhc.tn.gov.in/judis OSA No.46 of 2022 7.1. A perusal of the impugned order would reveal that the learned Judge had proceeded on the premise that the documents having been produced by the 6th defendant as the owner of the computer, the certificate under Section-65 B of the Act is unnecessary. While both the appellants and the respondents would submit that in terms of the decision in Arjun Pandit Rao's case, the position regarding certificate under Section 65 B of the Act stands clarified and it is beyond the cavil of any doubt that the certificate under Section 65B of the Act is a condition precedent to the admissibility of evidence. Now, the only question that remains to be resolved and on which there are serious difference of opinion is, as to at what stage, certificate under Section 65B of the Act can be produced and whether there is discretion available to the Court to permit production of document subsequent to the production of electronic evidence / record. While it is the case of appellants herein 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 as evidence and doors would be shut if the certificate is not so produced at that stage. The plaintiffs would on the other hand submit that failure to produce the requisite certificate when the electronic evidence is produced, may not prove fatal to its production at the subsequent stage for it is really a matter of discretion which the Court 10/16 https://www.mhc.tn.gov.in/judis OSA No.46 of 2022 would exercise to either permit production of certificate under Section 65 B of the Act or reject at a subsequent stage taking into account the circumstances of each case. The said issue need not detain us for long, for we find that the Hon'ble Supreme Court in Arjun Pandi Rao Khotkar's case after holding that the certificate under Section 65 B of the Act is a condition precedent to the admissibility of electronic record, had also made it clear that it is not as though Courts are completely denuded of their power to permit or accept / admit the requisite certificate subsequent to the production of the electronic record. The relevant portions of the judgment of the Hon’ble Supreme Court in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, [(2020) 7 SCC 1] are usefully extracted hereunder:
“61.We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. v.P.K. Basheer, [(2014) 10 SCC 473] , and incorrectly “clarified” in Shafhi Mohammad v.State of H.P.,[ (2018) 2 SCC 801]. Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v.Taylor (1875) LR 1 Ch D 426], which has been followed in a number of the judgments of this Court, can also be applied. Section 65- B(4) of the Evidence Act clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. To hold otherwise would render Section 65-B(4) otiose.
62.In view of the above, the decision of the Madras High Court in K. Ramajayam v. State, [2016 SCC OnLine Mad 451] , which states that evidencealiundecan be given through a person who was in charge of a computer device in the place of the requisite certificate under Section 65- 11/16
https://www.mhc.tn.gov.in/judis OSA No.46 of 2022 B(4) of the Evidence Act is also an incorrect statement of the law and is, accordingly, overruled.
(emphasis supplied) 7.2. The above rule in Arjun Pandit Rao Khotkar case viz., production of certificate under Section 65 B of the Act being a condition precedent for admissibility of evidence in the form of electronic record, is not without exceptions being carved out by the Hon’ble Supreme Court. In this regard, it may also be useful to refer to the following portions of the judgment of the Hon’ble Supreme Court in Arjun Panditrao Khotkar case:
“47. However, a caveat must be entered here. The facts of the present case show that despite all efforts made by the respondents, both through the High Court and otherwise, to get the requisite certificate under Section 65- B(4) of the Evidence Act from the authorities concerned, yet the authorities concerned wilfully refused, on some pretext or the other, to give such certificate. In a fact-circumstance where the requisite certificate has been applied for from the person or the authority concerned, and the person or authority either refuses to give such certificate, or does not reply to such demand, the party asking for such certificate can apply to the court for its production under the provisions aforementioned of the Evidence Act, CPC or CrPC. Once such application is made to the court, and the court then orders or directs that the requisite certificate be produced by a person to whom it sends a summons to produce such certificate, the party asking for the certificate has done all that he can possibly do to obtain the requisite certificate. Two Latin maxims become important at this stage. The first islex non cogit ad impossibiliai.e. the law does not demand the impossible, andimpotentia excusat legemi.e. when there is a disability that makes it impossible to obey the law, the alleged disobedience of the law is excused…..
…..
52.We may hasten to add that Section 65-B does not speak of thestageat which such certificate must be furnished to the Court. InAnvar P.V.[Anvar P.V.v.P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 :
(2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , 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 12/16 https://www.mhc.tn.gov.in/judis OSA No.46 of 2022 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 where such certificate has been demanded and is not given by the person concerned, the Judge conducting the trial must summon the person/persons referred to in Section 65-B(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 CrPC.
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73.2.The clarification referred to above is that the required certificate under Section 65-B(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 device concerned, 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 of providing information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4). The last sentence in para 24 in Anvar P.V.v.P.K. Basheer, [(2014) 10 SCC 473] 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 para 24 of Anvar P.V.v.P.K. Basheer, [(2014) 10 SCC 473] does not need to be revisited.” 7.3. 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 13/16 https://www.mhc.tn.gov.in/judis OSA No.46 of 2022 the plaintiffs / respondents as well as the learned Judge even while the documents were sought to be marked, had 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 6th 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.
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8. With the above directions, this Original Side Appeal stands disposed of. No costs. Consequently, connected civil miscellaneous petition is closed.
[R.M.D., J.] [M.S.Q., J.] 24.07.2023 Index: Yes/No Speaking /Non speaking order Neutral Citation: Yes/No shk 15/16 https://www.mhc.tn.gov.in/judis OSA No.46 of 2022 R.MAHADEVAN, J.
AND MOHAMMED SHAFFIQ, J.
shk O.S.A. No.46 of 2022 and C.M.P. No. 3155 of 2022 24.07.2023 16/16 https://www.mhc.tn.gov.in/judis