Delhi District Court
M/S Arihant Engineering Industries ... vs M/S Leo Ispat Ltd on 23 February, 2018
IN THE COURT OF DR. RAKESH KUMAR: SPECIAL JUDGE
(PC ACT) (CBI) SOUTH DISTRICT: SAKET COURTS
NEW DELHI
Criminal Revision No.: 377/2017
In the matter of:
1. M/s Arihant Engineering Industries (Partnership Firm)
Regd. Office At:-
Plot No. 113, Sector-6, Faridabad, Haryana
2. Subhash Jain (Partner)
Plot No. 113, Sector-6, Faridabad, Haryana
Now At:-
H.No. 176, Sector 11C, Faridabad.
3. Ranju Jain (Partner)
Plot No. 113, Sector-6, Faridabad, Haryana
Now At:-
H.No. 176, Sector 11C, Faridabad. ...... Applicants
versus
M/s Leo Ispat Ltd
12/19, Second Floor
Punjabi Bagh East, New Delhi
Also At:-
Y126, First Floor, Loha Mandi
Naraina, New Delhi. ..... Respondent
Date of institution of Application : 27.10.2017
Date of conclusion of arguments : 03.02.2018
Date of decision : 23.02.2018
For Applicants : Ms. Anu Verma, Advocate.
For Respondent : Mr. S.S. Wani Advocate.
CR No. 377/2017 Page 1 of 10
ORDER
This application under section 397 of the Code of Criminal Procedure, 1973 (Cr.P.C.), made by the applicants M/s Arihant Engineering Industries, Subhash Jain and Ranju Jain (hereinafter referred to as 'the accused persons') against the respondent M/s Leo Ispat Ltd (hereinafter referred to as 'the complainant'), is directed against the order dated 23.09.2017, passed by the court of Metropolitan Magistrate- 02, NI Act, South, Saket, New Delhi, whereby, in complaint case no. 466838/2016 entitled M/s Leo Ispat Ltd v. M/s Arihant Engineering Industries, the Learned Metropolitan Magistrate allowed the application under section 65B of Indian Evidence Act filed by the complainant.
2. The circumstances giving rise to the application are that the complainant made a complaint under section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as 'the N.I. Act') against the accused persons. When the case was at the stage of complainant's evidence, the complainant made an application under section 65B of Indian Evidence Act for placing on record certificate under section 65B.
3. On 23.09.2017, the Learned Magistrate, having CR No. 377/2017 Page 2 of 10 heard the parties, allowed the application under section 65B of the Indian Evidence Act. While allowing the application, the Learned Magistrate, inter-alia, observed as follows:
"I have gone through the judgments relied upon by both the parties and there is one distinguishable fact between the judgments relied upon by the accused in the facts in hand. In all the judgments the principles have been laid down as to the admissibility of electronic record U/s 65B of the Indian Evidence Act at the stage of appeal after pronouncement of final judgment while in the present case, the trial is still at the cross examination of the complainant. Further, it is settled principle that if a defect in procedure or irregularity in procedure is pointed out by one party, then a reasonable and fair opportunity must be given to the opposite party to cure that defect. For example, if an unregistered document which is compulsorily required to be registered is tendered during evidence and the other party taken an objection as to its admissibility and the party who is relying upon these documents offers to get the document registered after paying stamp duty and registration fee etc., then no court of law can deny this opportunity to that party because there is no rule that a document once inadmissible, will always be inadmissible. The opportunity to remove the defect of inadmissibility has to be given if the defect of inadmissibility is curable. Further as far as the contents of the certificate or its authenticity is concerned, the opposite party has ample opportunity to cross examine the witness to that extent but at this stage, court cannot give any observation on that point because if the court does so, it would be equivalent to decide the evidentiary value of the certificate without even the trial being concluded. Further, the facts mentioned in the judgment of Kamal Patel (mentioned above) are not applicable to the facts of the present case.
Though, the plea of the accused to the extent that application has been moved at belated stage, is correct.
In view thereof, considering the facts and circumstances of the case, in the interest of justice, the application is allowed subject to cost of Rs. 1000/- to be paid to the accused persons (Rs. 500/- in each case to be paid accused no. 1, 3 and 4 and Rs. 500/- in each case to be paid to accused no. 2) by the complainant on next date of hearing and the affidavit U/s 65B Indian Evidence Act 1872 is taken on record with the liberty to the accused to cross examine the complainant as to the authenticity and correctness of the certificate."CR No. 377/2017 Page 3 of 10
4. Feeling aggrieved of the impugned order, the applicants have made the present application with the following prayer: -
"It is, therefore, prayed that in view of the above facts the revision petition of the revisionist / accused persons may kindly be accepted and the impugned order dt. 23.09.2017 passed by the court of Ms. Prabh Deep Kaur, MM, Saket may kindly be set-aside and the application for placing on record the affidavit U/s 65B of Indian Evidence Act filed by the Respondent / complainant may kindly be dismissed with cost.
Any other relief which this Hon'ble Court deems fit and proper may kindly be also granted to the revisionist."
5. I have heard counsel for the parties and have gone through the record of the complaint case no. 466838/2016 entitled M/s Leo Ispat Ltd v. M/s Arihant Engineering Industries, pending before the Learned Magistrate.
6. Having drawn my attention on the contents of the application, the impugned order dated 23.09.2017 and the record of complaint case no. 466838/2016, pending before the Learned Metropolitan Magistrate, it is submitted by counsel for the applicant that the impugned order suffers from illegality and has been passed without application of mind, therefore, the same be reversed. It is further submitted that electronic record by way of secondary evidence shall not be admitted in evidence unless requirements under section 65B of Indian Evidence Act are satisfied and the same shall be CR No. 377/2017 Page 4 of 10 accompanied by the certificate in terms of section 65B obtained at the time of taking the document and the certificate under section 65B of the Indian Evidence Act cannot be filed at the stage of evidence. Counsel for the applicants also referred to the judgments in Anvar P.V. v. P.K. Basheer (SC) 2015 (1) SCC (Cri) 24, Kamal Patel v. Shri Ram Kishore Dogne 2016 (1) M.P. LJ 528, Ankur Chawla v. CBI Crl. M.C. No. 2455/12 and Uppal Credit & Investment Pvt Ltd v. Ashwani Kumar 2016 (2) RCR (Cri) 684.
7. Per contra, it is submitted by counsel for the respondent that the application does not have any merit and is liable to be dismissed. Counsel for the respondent also referred to the judgments in Eli Lilly And Company & Anr. v. Maiden Pharmaceuticals Limited CS (Comm), 1472/2016 and Kundan Singh v. The State, Crl. A. 711/2014 to contend that our own High Court has discussed the judgments in Ankur's case (supra) and held that the certificate under section 65B of the Indian Evidence Act can be filed at a later stage. It is further submitted that in the light of judgment of Hon'ble Supreme Court in Madhu Limaye v. The State of Maharashtra, AIR 1978 SC 47 the impugned order is an interlocutory one and as such not revisable.
8. I have given my thoughtful consideration to the CR No. 377/2017 Page 5 of 10 submissions made on behalf of the parties.
9. As mentioned above, vide the impugned order the Learned Magistrate allowed the application under section 65B of Evidence Act filed by the complainant.
10. It has been held by Hon'ble Supreme Court in Anvar P.V.'s case (supra), relied upon by the applicants to support their contention, as follows:
"It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record; Section 63 and 65 have no application in the case of secondary evidence by way of electronic record, the same is wholly governed by Section 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."
11. The ratio in judgments in Anwar P.V.'s case (supra), Ankur Chawla's case (supra) was considered by a Division Bench of Hon'ble Delhi High Court in Kundan Singh's case (supra) and held as follows:
41. Paragraph 21 quoted above records and notices that in State (NCT of Delhi) Vs. Navjot Sandhu alias Afzal Guru, (2005) 11 SCC 600, a responsible officer had certified the CR No. 377/2017 Page 6 of 10 document at the time of production itself and the signatures in the certificate were also identified and, therefore, there was compliance of Section 65B of the Evidence Act. In these circumstances, we do not accept the legal ratio in Ankur Chawla versus Central Bureau of Investigation, (Crl. M.C. No. 2455/12 & Crl. M.A. Nos. 8308 and 8318/2014 and Crl. Rev. P. 385/2012 decided on 20th November, 2014 by the Delhi High Court) wherein it has been held that the certificate under Section 65B must be issued when the computer output was formally filed in the court and certificate under Section 65B cannot be produced when the evidence in form of electronic record is tendered in the court as evidence to be marked as an exhibit. The said certificate can be produced when the electronic record is to be admitted and taken on record, i.e., when the prosecution, defence or a party to the civil litigation wants the electronic record to me marked as an exhibit and read in evidence. As far back as 1931, the Lahore High Court in Baldeo Sahai versus Ram Chander and Others, AIR 1931 Lahore 546 has stated:-
"There are two stages relating to documents. One is the stage when all the documents on which the parties rely are filed by them in Court. The next stage is when the documents proved and formally tendered in evidence. It is at this alter stage that the Court has to decide whether they should be admitted or rejected. If they are admitted and proved then the seal of the Court is put on them giving certain details laid down by law, otherwise the documents are resumed to the party who produced them with an endorsement thereon to that effect."
42. The aforesaid judgment was quoted with approval in Sudhir Engineering Company versus Nitco Roadways Limited, 1995 (34) DRJ 86 wherein it was observed as under:
"Let me now look at the law. Any document filed by either party passes through three stages before it is held proved or disproved. These are: first stage: when the documents are filed by either party in the Court; these documents though on file, do not become part of the judicial record; second stage:
when the documents are tendered or produced in evidence by a party and Court admits the documents in evidence. A document admitted in evidence becomes a part of the judicial record of the case and constitutes evidence. Third stage: the documents which are held 'proved, not proved or disproved' when the Court is called upon to apply its judicial mind by reference to Section 3 the final hearing of the suit or proceeding."
43. Anwar P.V. (supra) partly overruled the earlier decision of the Supreme Court on the procedure to prove electronic CR No. 377/2017 Page 7 of 10 record(s) in Navjot Sandhu (supra), hold that Section 65B is a specific provision relating to the admissibility of electronic record(s) and, therefore, production of a certificate under section 65B(4) is mandatory. Anwar P.V. (supra) does not state or hold that the said certificate cannot be produced in exercise of powers of the trial court under Section 311 Cr.P.C or, at the appellate stage under Section 391 Cr.P.C. Evidence Act is a procedural law and in view of the pronouncement in Anwar P.V. (supra) partly overruling Navjot Sandhu (supra), the prosecution may be entitled to invoke the aforementioned provisions, when justified and required. Of course, it is open to the court / presiding officer at that time to ascertain and verify whether the responsible officer could issue the said certificate and meet the requirements of Section 65B.
12. The judgment in Kundan Singh's case (supra) was followed by Hon'ble Delhi High Court in Eli Lilly's case (supra) and held as follows:
"18. Though the ratio of Anvar P.V. supra, to me, appears to require the certificate / affidavit under Section 65-B of the Evidence Act to accompany the electronic record when produced in the Court, and a learned Single Judge of this Court also in Ankur Chawla vs. Central Bureau of Investigation 2014 SCC Online Delhi 6461 opining so acquitted the petitioner/accused therein (though the SLP is pending in the Supreme Court) but a Single Judge of the High Court of Rajasthan in Paras Jain Vs. State of Rajasthan 2015 SCC Online Raj. 8331 did not agree with the judgment of this Court in Ankur Chawla supra observing that "when legal position is that additional evidence, oral or documentary, can be produced during the course of trial if in the opinion of the Court production of it is essential for the proper disposal of the case, how it can be held that the certificate as required under Section 65-B of the Evidence Act cannot be produced subsequently in any circumstances if the same was not procured alongwith the electronic record and not produced in the Court with the charge-sheet. In my opinion it is only an irregularity not going to the root of the matter and is curable".
A Division Bench of this Court in Kundan Singh Vs. State 2015 SCC Online Delhi 13647 also, on a reading of Anvar P.V. CR No. 377/2017 Page 8 of 10 supra disagreed with the view taken in Ankur Chawla supra and held that the words "produced in evidence" did not postulate or propound a ratio that the computer output when reproduced as a paper print out or on optical or magnetic media must be simultaneously certified by an authorised person under Section 65-B(4). It was held that all that is necessary is that the person giving the certificate under Section 65-B(4) should be in a position to certify and state that the electronic record meets the stipulations and conditions mentioned in Section 65-B(2), identify the electronic record, describe the manner in which computer output was produced and also give particulars of the device involved in production of the electronic record for the purpose of showing that the electronic record was prepared by the computer. It was further held that emails are downloaded and computer output, in the form of paper prints, are taken every day; these emails may become relevant and important electronic evidence subsequently; it is difficult to conceive and accept that the emails would be inadmissible, if the official who downloaded them and had taken printouts had failed to, on that occasion or simultaneously record a certificate under Section 65-B.
19. The question is thus not res integra and there was no need for the learned Joint Registrar to post the matter before this Court. Perhaps, because the judgments aforesaid are in criminal proceedings, remained to be utilised in a civil suit. However, the ratio thereof would apply to civil proceedings also.
20. It thus but has to be held that the plaintiffs are entitled to file the certificate under Section 65-B of the Evidence Act, even subsequent to the filing of the electronic record in the Court. Order XI Rule 6 of CPC as applicable to commercial suits is also not found to provide to the contrary."
13. In the light of law laid down by our own High Court in Kundan Singh's case (supra) and Eli Lilly's case (supra), a certificate under section 65B of the Evidence Act can even be filed subsequent to the filing of the electronic record in the court.
CR No. 377/2017 Page 9 of 1014. In view of above discussion, I find no illegality and irregularity in the impugned order dated 23.09.2017, passed by the court of Learned Metropolitan Magistrate. Said impugned order dated 23.09.2017, passed by Learned Metropolitan Magistrate is hereby upheld. The revision is without merit and same is, accordingly, dismissed.
15. File be consigned to the Record Room. The record of the complaint case no. 466838/2016 entitled M/s Leo Ispat Ltd v. M/s Arihant Engineering Industries, called from the court of the Learned Magistrate be sent back alongwith a copy of this order.
16. Parties are directed to appear before the Learned Trial Court on 28.02.2018 at 2 PM.
Pronounced in the open court (DR. RAKESH KUMAR) on this 23rd February 2018 Special Judge (PC Act) (CBI) South District, Saket Courts, New Delhi CR No. 377/2017 Page 10 of 10