TMI Blog2018 (4) TMI 1613X X X X Extracts X X X X X X X X Extracts X X X X ..... Services Committee. CM is disposed of. RFA 90/2017 2. The present appeal arises out of the impugned judgment and order dated 9th May, 2016 by which the suit filed by HDFC Bank - Appellant/Plaintiff (hereinafter, Plaintiff‟) against the Defendants/Respondents (hereinafter, Defendants‟) was dismissed on the ground that the provisions of Section 65B of the Indian Evidence Act, 1872 (hereinafter, Evidence Act‟) were not complied with. 3. Briefly stated - a suit for recovery was filed seeking recovery of a sum of ₹ 8,26,397/- against the Defendant Nos.1 2. Defendant No.1 was borrower and Defendant No.2 was co-borrower. Defendant No.1 had applied for a loan of ₹ 15 Lakhs. He entered into a loan agreement/credit facility application form with the Bank. The original loan agreement is exhibited as Ex.PW-1/2 on record. The Bank had disbursed a loan of ₹ 15 Lakhs to the Defendants in terms of the loan agreement no.11216814 dated 1st March, 2007. The Defendants had to repay the loan in equal monthly instalments out of which some instalments were in fact paid by the Defendants. There were, however, unpaid outstanding instalments because of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Bankers Books Evidence Act shows that various instalments towards repayment of the loan have in fact been received by the Bank. Thus, the fundamental fact that the Defendants took the loan and repaid some part of the loan, is admitted. This being the position, the statement of account which is certified under the Bankers Book Evidence Act, 1891 by the Principal Officer of the Bank, could not have been ignored or held to be not proved in terms of the Section 65B of the Evidence Act. It has been held recently by this Court in ICICI Bank Ltd. v. Kamini Sharma Anr. [RFA 297/2016 dated on 31 st January, 2018] as under: 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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: (a) There must be a certificate which identifies the electronic record containing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary 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. 15. The above judgement was followed in Harpal Singh v. State of Punjab AIR 2016 SC 5389 and by a Division Bench of this Court in Kundan Singh v. State I (2016) CCR1 (Del.). A Single Judge of this Court, relying on Anvar v. Basheer (supra), in ELI Lilly v. Maiden Pharmaceuticals 2017 (161) DRJ 65 held as under: 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 op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... XI Rule 6 of CPC as applicable to commercial suits is also not found to provide to the contrary. In the present case, the Plaintiff bank has filed the certificate under Section 65B through its witness and also certified all the copies of electronic records including bank statements etc., Thus the requirements under Section 65B have been fulfilled. 16. There is however some serious re-thinking required on the manner in which electronic documents are to be proved. In each case where electronic documents are involved, it would be impractical to expect the parties to produce the primary evidence which would be the medium on which the document is stored, considering that electronic documents could be stored on hard drives, hard disks, CPUs, micro-processors, cameras, telephones, etc. Certificates under Section 65B accompanying the printouts have simply become standard formats. Cross examination on these certificates can involve debates on model of computer, printer, questions as to who took printouts etc. Courts, therefore, need to take a pragmatic attitude in these cases. Unless there is a serious challenge to the electronic documents i.e., tampering, forgery, hacking, misuse o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
