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2018 DIGILAW 1990 (MAD)

Suresh Kumar v. Vikram Jesudasen

2018-06-28

V.BHARATHIDASAN

body2018
ORDER : V. Bharathidasan, J. 1. This civil suit has been referred by the learned Additional Master-IV to decide the issue as to the admissibility of the documents, in question. The defendants objected to marking of the same through P.W. 1 for want of certificate, as required under Section 65-B of the Evidence Act, as the documents, in question, which were sought to be marked by the plaintiffs are Xerox copies of E-mail communications between the 6th defendant and the 7th defendant and they were procured from the electronic device. The present suit has been filed for specific performance of an oral agreement of sale entered into between the plaintiffs and the defendants 1 to 5. The 6th defendant in the suit is not only a Chartered Accountant for the defendants 1 to 5 but also, has been acting as an Agent on their behalf. Prior to the filing of the suit, the 6th defendant said to have sent some Email to the daughter of the 4th defendant, who has been arrayed as 7th defendant in the suit with regard to oral agreement allegedly entered into between the plaintiffs and the defendants 1 to 5. Earlier, by way of A. No. 2160 of 2018, the plaintiffs sought to produce the Xerox copies of the transcription of the E-mail communications between the 6th defendant and the 7th defendant. The above said application was opposed by the defendants 1 to 5 on the ground that since the documents sought to be marked by the plaintiffs are all Xerox copies of the E-mail communications and they are not admissible in evidence for want of necessary certificate from the competent authority as contemplated under Section 65-B(4) of the Evidence Act. This court after having considered the rival submissions passed an order on 13.03.2018 allowing the application. The paragraphs 6, 7 and 10 of the above said order read as follows: "6. At this stage, the permission that is sought for is only to produce the documents. The question of admissibility or authenticity or requirement of certificate or whether the plaintiffs/applicants are in position to obtain certificate as required under Section 65B (4) of the Evidence Act are the matters which have to be gone into at the time of the documents are actually sought to be marked. 7. The question of admissibility or authenticity or requirement of certificate or whether the plaintiffs/applicants are in position to obtain certificate as required under Section 65B (4) of the Evidence Act are the matters which have to be gone into at the time of the documents are actually sought to be marked. 7. Therefore, I do not think that the application could be thrown out at the threshold denying even an opportunity to produce these documents................ 10. Hence, this application is allowed. The plaintiffs are permitted to produce the xerox copies of the E-mail transcript shown as document Nos. 2 to 15 and 17 to 24 in the plaint subject to proof of authenticity as well as admissibility. Whether the applicant should be required to produce or they are in position to produce the certificate under Section 65B(4) should also be gone into." Thereafter, the suit was ordered to be placed before the learned Additional Master-IV to proceed with the recording of evidence. At the time when the documents in question were sought to be marked by the plaintiffs, again the counsel for the defendants 1 to 5 objected to marking of the documents for want of certificate as required under Section 65-B of the Evidence Act as the documents are inadmissible evidence. Since the Additional Master was not competent to decide the question as to the admissibility of the documents, the counsel for the plaintiffs sought to refer the matter to this court for answer to the question as to the admissibility of the documents. 2. The learned counsel for the defendants 1 to 5 had also said to have accepted the stand taken by the counsel for the plaintiffs. In those circumstances, the learned Additional. Master-IV, left with no other option, retransmitted the matter to this court. When the suit was called on 07.06.2018, the learned counsel for the plaintiffs sought time on the ground that he wanted to get clarification on the order dated 13.03.2018 made in A. No. 2160 of 2018. Thereafter, at the instance of the learned counsel for the plaintiffs, the matter was listed on 14.06.2018 before the Hon'ble Judge who passed the order in A. No. 2160 of 2018. Accordingly, the Hon'ble Judge by order dated 16.06.2018 clarified the earlier order that the question of admissibility was left open to be decided based on the pronouncement of the Hon'ble Supreme Court. Accordingly, the Hon'ble Judge by order dated 16.06.2018 clarified the earlier order that the question of admissibility was left open to be decided based on the pronouncement of the Hon'ble Supreme Court. The relevant portion of the order reads as follows:- "2. A supplemental question regarding the necessity of production of certificate under Section 65B(4) also arose as the documents are xerox copies of transcriptions of Email correspondence. It is for the said reason, I had made it clear that the exercise of admissibility of the documents/marking of the documents would be decided as and when the documents were sought to be marked, taking note of the decision of the Hon'ble Supreme Court in Shafhi Mohammad v. The State of Himachal Pradesh, reported in 2018-1-L.W. (Crl.) 959 : 2018 (2) SCC 801 . Therefore, it is made clear that I had not pronounced upon the admissibility/marking of the documents while deciding the Application No. 2161 of 2018. That question was left open to be decided, based on the pronouncement of the Apex Court, referred supra." 3. Heard both sides and also perused the records carefully. 4. The learned counsel for the plaintiffs would submit that even though this court by order dated 13.03.2018 directed that admissibility of the documents could be gone into at the time when the documents are actually sought to be marked in evidence, the learned Additional Master is not competent to decide the question as to the admissibility of the documents and it is for the court to decide as to the admissibility of the documents. 5. The learned counsel for the plaintiffs would further submit that electronic evidence which are sought marked by the plaintiffs are only E-mails sent by the 6th defendant to the 7th defendant and the plaintiffs were not in possession of the device from which the E-mail communications in question were produced. In such circumstances, the plaintiffs need not obtain a certificate as required under Section 65-B(4) of, the Evidence Act. The learned counsel in support of his submission placed reliance on the judgment in Shafi Mohammad v. State of Himachal Pradesh, 2018-1-L.W. (Crl.) 959 : (2018) 2 SCC 801 wherein the Hon'ble Supreme Court has held that a person who is not in possession of device from which the document is produced cannot be required to produce certificate as required under Section 65-B(4) of the Evidence Act. Therefore, the learned counsel for the plaintiffs would urge that the document in questions are admissible in evidence and the question as to the relevancy and the authenticity of such documents could be decided in the suit. 6. Per contra, the learned counsel for the defendants 1 to 5 vehemently contended that the documents sought to be marked are E-mail communications said to have been sent by the 6th defendant to the 7th defendant and the plaintiffs had not authority to mark the said documents. Apart from that the authenticity of the same is also doubtful. The learned counsel further contended that when the documents sought to be marked in evidence are all electronic evidence as per Section 65-B(4) of the Evidence Act, the plaintiffs must have obtained necessary certificate to prove the genuineness of the documents and in the absence of such certificate, these documents are inadmissible in evidence and the plaintiffs cannot even be permitted to mark in evidence. In support of his contention, the learned counsel relied on the judgement of the Hon'ble Supreme Court in Anvar P.V. v. Basheer, (2014) 10 SCC 473 wherein the Hon'ble Supreme Court has held that electronic evidence by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B of the Evidence Act are satisfied. 7. I have considered the rival submissions carefully. 8. In A. No. 2160 of 2018 the plaintiffs sought permission to produce the documents, in question, in evidence. This court, by order dated 13.03.2018, allowed the application whereby this court observed that question of admissibility or authenticity and production of certificate as required under Section 65-B(4) of the Evidence Act could be gone into at the time when the documents are sought to be marked in evidence. This court by the very same order further directed the plaintiffs to produce the Xerox copies of the E-mail transcripts which were shown as Doc. Nos. 2-15 and 7 - 24 in the plaint subject to proof of authenticity as well as admissibility. Since an objection was raised as to the admissibility of the documents, in question and the same could not be decided by the learned Additional Master, the matter has been retransmitted to this court for answer to the question. 9. Admittedly, the documents, in question, are all electronic evidence. Since an objection was raised as to the admissibility of the documents, in question and the same could not be decided by the learned Additional Master, the matter has been retransmitted to this court for answer to the question. 9. Admittedly, the documents, in question, are all electronic evidence. They are governed by the provisions section 65-A and 65-B of the Evidence Act which are special provisions on evidence relating to electronic records. Section 65-A of the Evidence Act says that the contents of the electronic records may be proved in accordance with the provisions in Section 65-B of the Evidence Act. Section 65-B of the Evidence Act deals with the admissibility of the electronic record as evidence in a court of law and as per Section 65B(4) of the Evidence Act, if a person desired to mark an electronic record as evidence, he must satisfy the conditions prescribed therein. The relevant portion of which reads as follows:- "65-B. Admissibility of electronic records.- (1).................. .................. (4) 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 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 purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it." Therefore, a party who wishes to mark any electronic record as evidence in a court proceedings by way of secondary evidence, he must necessarily satisfy the requirements under Section 65 -B of the Act, otherwise, such evidence cannot be admitted in evidence as they are inadmissible. 10. In Anvar P.V. v. Basheer, (2014) 10 SCC 473 , the Hon'ble Supreme Court has held as follows:- "22. 10. In Anvar P.V. v. Basheer, (2014) 10 SCC 473 , the Hon'ble Supreme Court has held as follows:- "22. The evidence relating to electronic record, as noted hereinbefore, 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 specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A 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 is wholly governed by Sections 65-A and 65-B. 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 [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC (Cri) 1715], 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 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible." 11. Subsequently, after having considered the Anvar's case, cited supra, the Hon'ble Supreme Court in Shafhi Mohammad v. State of H.P., 2018-1-L.W. (Crl.) 959 : (2018) 2 SCC 801 , has held that requirement of Certificate under Section 65-B (4) of the Evidence Act is only a procedural requirement and it is not always mandatory. The applicability of procedural requirement with regard to furnishing of certificate is to be applied only when such electronic record is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. The applicability of procedural requirement with regard to furnishing of certificate is to be applied only when such electronic record is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. The Hon'ble Supreme Court further held that the admissibility of the electronic evidence, especially by a party who is not in a possession of device from which the document is produced, such party cannot be required to produce certificate under Section 65-B (4) of the Evidence Act and the applicability of requirement of certificate being procedural, the same can be relaxed by court wherever interest of justice so justifies. In Shafi Mohammad's case [cited supra], the Hon'ble Supreme Court has held as follows:- 29. The applicability of procedural requirement under Section 65-B (4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in the absence of certificate under Section 65-B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65-B(4) is not always mandatory. 30. Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65-B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by the court wherever interest of justice so justifies." 12. Such party cannot be required to produce certificate under Section 65-B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by the court wherever interest of justice so justifies." 12. In the instant case, admittedly, the electronic records, in question, which are sought to be marked in evidence by the plaintiffs are E-mail communications said to have been sent by the 6th defendant to 7th defendant. According to the plaintiffs, the copies of the E-mails were handed over to the plaintiffs by the 6th defendant. The E-mails communications were emanated from the devices in possession of the defendants 6 & 7. In such circumstances, the plaintiff who is not being in control of the devices could not procure 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 Mohammad v. State of H.P., 2018-1-L.W. (Crl.) 959 : (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. 13. Since the matter has been placed before this court only to decide question as to the possibility 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. The Registry is directed to place the civil suit before the learned Additional Master-II on 04.07.2018 to proceed with further in the matter.