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Showing contexts for: cd transcript in Mr. Rakesh Kumar Arora vs Mr. Anil Sabharwal on 9 February, 2023Matching Fragments
13. The defendant has relied upon the following documents:
1) Copy of translation of transcript of CD voice recording being Mark DW-1/1/;
2) CD containing voice recording being Mark DW-1/2;
3) Copy of agreement to sell being Mark 2/DA;
4) Copy of FIR dated 02/07/2015 being Mark A. The plaintiff has objected to the admissibility and mode and manner of proof of the aforesaid documents, which I shall deal with subsequently in the course of the judgment.
14. The learned counsel for the plaintiff has referred to the relevant pleadings and evidence in the plaintiff's support. The ld. counsel has submitted that from the receipt Ex.PW-1/6, it is clearly proved that the defendant had received amount of ₹ 19,00,000/- from the plaintiff in cash. It is submitted that the defendant has already admitted his signatures on Ex.PW-1/6. It is submitted that the plaintiff has also proved the source of funds for arranging the cash amount of ₹ 19,00,000/-. It is submitted that the plaintiff had along with the Income Tax Return Ex.PW-1/3 for the assessment year 2015-16 also filed RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 10 of 34 balance sheet showing amount of ₹ 19,00,000/- as loan to the defendant. It is submitted that the plaintiff has as PW-1 already deposed along the lines of the plaint and the testimony of the plaintiff was never challenged by the defendant in cross-examination despite opportunity given by the Hon'ble High Court. It is further submitted that the plaintiff's father PW-2 had also deposed regarding the loan and the execution of the receipt Ex.PW-1/6 to which he was a witness. It is further submitted that the wife of the defendant had in her cross-examination before the Ld. Mahila Court (Mark DW-1/7 and Mark DW-1/8) admitted that her husband i.e. the defendant had received amount of ₹ 19 lacs in cash from the plaintiff. It is submitted that although, the defendant had filed the affidavit in evidence of his wife, however, she was dropped as a witness and never called to face cross-examination, although she was appearing on various dates along with the defendant and was also present at the time of recording of evidence of the defendant as DW-1. It is submitted that an adverse inference would be drawn against the defendant in view of this. It is further submitted that the defendant has failed to discharge the onus to prove his defence that the Ex.PW-1/6 was forged and fabricated. It is submitted that the electronic record which is being relied upon by the defendant, being CD containing voice recording being Mark DW-1/2 and copy of translation of transcript of CD voice recording being Mark DW-1/1, is not accompanied by any certificate under section 65-B of the Indian Evidence Act, and as such, is inadmissible in evidence. It RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 11 of 34 is submitted that, even otherwise, there was nothing in the transcript Mark DW-1/1 which would show any admission by the plaintiff's father. It is submitted that on the basis of the evidence on record, the plaintiff has successfully proved his case and is entitled to decree.
15. The learned counsel for the defendant has referred to the relevant pleadings and evidence in the defendant's support. It is submitted that the plaintiff has filed the suit with an ulterior motive by taking advantage of the signatures of the defendant taken on blank papers. It is submitted that from the evidence on record, the defendant has proved that the receipt being Ex.PW-1/6 was a forged and fabricated document. It is submitted that during the conversation with the plaintiff's father, it was admitted by the latter that he had filled up the blank papers signed by the defendant in the shape of a loan document and assured that he would not misuse the same. In this regard, the ld. counsel for the defendant has referred to copy of translation of transcript of CD voice recording being Mark DW-1/1 and CD containing voice recording being Mark DW-1/2. It is submitted that the parents of the plaintiff had entered into sale transaction with the defendant for the third floor for sale consideration of ₹ 1.29 crores but had paid sale deed amount of ₹ 86 lacs only and had not paid the remaining amount of ₹ 43 lacs. It is submitted that the present suit has been filed only to usurp the remaining amount of ₹ 43 lacs. It is further submitted that receipt Ex.PW-1/6 contained signatures of two witnesses namely the RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 12 of 34 plaintiff's father Mr. Ved Prakash Arora and Mr. Manish Kumar s/o. Ram Kishan. It is submitted that the evidence of the plaintiff's father (PW-2) cannot be considered as he is an interested witness. It is submitted that the plaintiff has not called the second witness Mr. Manish Kumar to testify as the Ex.PW-1/6 was a forged and fabricated document. It is submitted that an adverse inference would be drawn that the Ex.PW-1/6 was a forged and fabricated document as the plaintiff had failed to summon Mr. Manish Kumar to testify. It is submitted that the suit deserves dismissal.
23. It must now be taken to have been settled that the decision of this Court in Anvar P.V.9 as clarified in Arjun Panditrao10 is the law declared on Section 65B of the Evidence Act."
(Emphasis supplied by me)
30. From the aforesaid survey of the law, it can be deduced that compliance with the provisions of Section 65-B of the Evidence Act is mandatory for the admissibility of secondary evidence of electronic record. In the present case, it is admitted by the defendant as DW-1 during his cross-examination that the recording of conversation between the defendant and the plaintiff's father had taken RAKESH KUMAR ARORA Vs. ANIL SABHARWAL Page No. 26 of 34 place over his mobile phone on different dates. Thus, the original record was contained in the defendant's mobile phone as per the defendant's own case. This mobile phone was never produced before the court. The defendant has also stated in his cross-examination that he did not have the mobile phone device now as it was an old device and the same got destroyed as it fell in the water. The audio recording contained in the CD is really a copy of the information stored in the mobile phone. Thus, it was incumbent upon the defendant to comply with the conditions laid down in section 65-B Evidence Act. However, there is no certificate filed under section 65-B. Hence, I would hold that the CD Mark DW-1/2 containing the alleged audio recording would be inadmissible in evidence. Consequently, even the transcript Mark DW-1/1 purporting to be the transcript of translation of audio recording Mark DW-1/2 CD would also not be admissible in evidence.