TMI Blog2019 (6) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent Represented by: None. MUKTA GUPTA, J. (ORAL) Crl. M.A. No. 11285/2019 (Exemption) Exemption allowed subject to just exceptions. Crl.M.A. No.11284/2019 (Delay) For the reasons stated in the application delay of 39 days in filing the leave to appeal petition is condoned. Application is disposed of. CRL.L.P. 344/2019 1. Aggrieved by the judgment dated 11th February 2019, whereby the learned Metropolitan Magistrate acquitted the respondent for the offence punishable under Section 138 Negotiable Instruments Act, 1881 the petitioner/complainant has preferred the present leave petition. 2. Briefly stated, the facts of the present case as per the complaint are that the complainant/petitioner is a company duly incorporated under the Companies Act and is in the business of manufacture and sale of consumer electronics and home appliances with the brand name of Samsung and is represented by its AR/Assistant Manager Manish Aggarwal. Respondent No.1 is a partnership firm and respondent no.2 to 6 are partners in the firm. The petitioner company had appointed respondent firm as its de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that the disputed cheque was given at the time of the agreement without filling any amount in it and the petitioner company has not followed due business process before submitting the said cheque to the bank. 6. Petitioner company examined its authorized representative Manish Agrawal as CW-1 who filed his evidence by way of affidavit Ex.CW-1/3. He relied upon the copy of the power of attorney of the petitioner company vide Ex.CW-1/1, letter issued by the respondent firm vide Ex.CW-1/4, statement of account of respondent firm maintained by the petitioner company vide Ex.CW-1/5, Original cheque vide Ex.CW-1/6, cheque return memo vide Ex.CW-1/7, copy of legal notice vide Ex.CW-1/8 and postal receipts and AD cards vide Ex.CW-1/9 to Ex.CW-1/11. 7. In his cross-examination for respondent no.2, 3 and 5, Manish Agarwal deposed that the distributorship agreement between the petitioner company and respondent no.1 was executed before he joined the petitioner company in the year 2006. He admitted that the photocopy of the agreement brought on record was the original agreement. He further admitted that the ledger does not show the details of the products delivered. He f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Reddy and Bhanu Murti. He placed on record a copy of the retirement deed of him and his wife. 13. DW-2 placed on record a copy of a letter bearing acknowledgement of petitioner company and copy of blank cheques bearing similar acknowledgement. There were blank signed letter heads which were kept in his office as he was studying at that time. There were some blank signed cheques that were taken by his brother that is respondent no.4 who was also responsible for all transactions. 14. Syed Sarfaraz Ahmed examined the signatures of Respondent No. 5 on the letter issued by the Respondent firm and the cheque in question. He gave his report vide Ex. CW-2/A and proved the negatives of the 8 photographs of the disputed and admitted signature of Respondent No. 5. 15. The petitioner company through its Authorized Representative testified that respondent no. 2 to 5 were partners in the respondent firm and were responsible for its affairs at the time of commission of the offence but no evidence has been placed on record to show as to how and in what manner the respondents were responsible for the conduct of the business of the respondent firm. Respondent no.2 and 3 had retir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mputer. It may be noted that the section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document i.e. electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65-B(2). 17. Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45-A-opinion of Examiner of Electronic Evidence. 18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65-B of the Evidence Act are not complied with, as the law now stands in India. 20. Proof of electronic record is a special provision introduced by the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied on Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as an exhibit , an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evide ..... 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