TMI Blog2018 (10) TMI 1778X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. This Section creates a deeming fiction of being a document in favour of the electronic record, as contained in any recording media. However, for attaching this deeming fiction to such an electronic records; for being a deemed `document', conditions have been prescribed by Section 65-B, which are mandatorily to be satisfied for leading the said electronic record in evidence as a `document'. What is permissible to be led in evidence under Section 65-A and 65-B of Evidence Act is the computer output of Electronic Information. As mentioned above, the computer output is the retrieval of the electronic information, which is otherwise readable only by a machine, into an output which is recognisable by human senses, like, text print-out on a page, video on a screen or audio played on a device. Before being retrieved through an output device, like printer, screen or audio device, the electronic information is in existence and is stored in the form of processed digital codes, created through the computer processor. The same piece of machine readable information can be retrieved in different manner and different forms on different types of output devices. The petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon Punjab and Sind Bank, Jhabwasti Ram, Amritsar, with the assurance that the cheque will be honored on its presentation. This cheque was duly signed by the petitioner and was handed over by the petitioner to the respondent in discharge of his loan liability. The cheque was sent by the respondent to his banker. However, the same was returned by the bank of the petitioner; since there was no funds in the said account of the petitioner to meet the amount of the cheque. Resultantly, the cheque was returned as dishonored; vide memo dated 21.03.2016, with remarks as Account Closed . Thereafter, a notice was served by the respondent upon the petitioner requiring him to make the payment. However, still the payment was not made. Hence, the complaint under Section 138 of the NI Act was filed against the present petitioner. The complainant led his evidence in support of the complaint. Thereafter, the evidence of the petitioner/ accused was started. The accused tendered his affidavit in defence evidence; and also tendered three articles containing the computer output of an alleged conversation between the petitioner and the respondent, as Ex.D1 to Ex.D3. Out of these, Ex.D1 is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded that it is not mentioned by the applicant as to by what device or instrument the recording was done and the accused has not placed on record even affidavit and certificate regarding authenticity of the recording. It was further recorded by the trial Court that no date, month, or time of recording is mentioned by the applicant. Still further, the trial Court recorded that even the cross-examination of the complainant by the accused/ petitioner reveals that the accused had not even put any question to the complainant regarding the recording of any conversation; which has now been sought to be produced on record. The trial Court also recorded that the applicant himself has admitted as having issued a cheque to the complainant relating to some committee ; which is allegedly being run by the complainant. Still further, the applicant claims the presence of eight persons at the time of recording, however, not even a single person has been examined by the applicant to prove such conversation. Resultantly, the trial Court held that the authenticity of the recording has not even been remotely claimed and proved by the applicant. Therefore, the same cannot be taken to be the evidence; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, as provided under Section 65(B) of the Indian Evidence Act, is not mandatory in all cases. Hence, it is prayed that the present petition be allowed and the trial Court be directed to get voice samples of the complainant compared with the recordings contained in Ex.D1 and Ex.D2, which are the recorded versions of the conversation between the petitioner/accused and the respondent/complainant. On the other hand, the respondent has appeared in person and has contended that he has already averred in his reply to application of the petitioner that he has never had any such conversation with the petitioner, as contained in the Pen Drive and CD; Ex.D1 and D.2. These are totally fabricated recordings, created by the petitioner; using the technology tools; with a view to put wrong facts before the Court. The respondent has further submitted that the petitioner has not disclosed anywhere as to when this conversation was recorded, by which device it was recorded and also; it has not been supported by way of any definite evidence that the recording was authentic. It is further submitted by the respondent that the petitioner has been adopting delaying tactics; so as to harass the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notwithstanding anything contained in this 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 (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:- (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic record or of the kind from which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section,- (a) infomation shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.-For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accuracy of its contents; (vi) the information sought to be produced must be the exact copy of the information which was fed in the computer in ordinary course of such activities. This Section further provides that to authenticate the above requirements, a certificate signed by a person; occupying a responsible position in relation to the operation of the relevant computer/ device; shall be required:- (i) identifying the electronic record which is sought to be produced before the Court, as well as, describing the manner in which it was produced; (ii) giving particulars of device involved in production of that record and certifying that the device was being operated during the relevant period in the manner as required by the Section. The electronic records containing electronic information are processed and created on computing devices consisting of processor and working on variety of factors. After processing the raw information, like strokes from a keyboard, the computer processor creates the `machine readable' information and sends it to the default storage memory device. However, before so storing, the said machine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aiming it to be the copy of the original. Still further, by passing the so created information through the appropriate filters of softwares, data or the filters of pitch and frequency, which again would be in the digital form, voice of anybody can be re-created by the experts of the computer field. Hence, since the entire computer information is in the form of precise digital form only, therefore, the same can be created as `original' also with the same precision, even without the risk of possibility of the fabrication being easily detected. Its only the question of as to what is the level of expert who is creating the digital information. Hence, the digital information has to be treated with due suspicion and more stringent test has to be applied to it than the ordinary evidence, as has been held by the Hon'ble Supreme Court in its judgment rendered in 2010(1) RCR (Civil) 959 Tukaram S. Dighole v. Manikrao Shivaji Kokate. Hence, the authenticity of the recording of the information is as important as the content of the information itself, lest the Court should be taken for a ride by unscrupulous experts in the field of the fabrication of the information. Accordingly, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authenticity of the instrument of recording of information and the mode of recording and also the recording itself, are as much important as the contents of the information sought to be produced before the Court itself are. Hence, besides the relevance of the contents of the information, the authenticity of the recording device, its proper functioning and the information being correct output of the recording are equally important corner stones; for permitting any electronic evidence to be led in evidence before the Court. Although there are certain judgments, including from the Hon'ble Supreme Court, to say that in case the electronic evidence is produced by a party in the form of primary evidence then the certificate as required under Section 65-B(4) of Indian Evidence Act may not be required, however, those judgments pertained to the electro magnetic recording in the form of audio tapes. In those cases, the original audio tapes were sought to be produced before the Court. However, the same analogy may be hard to be applied in case of computer output; without insisting for authenticity of and source of recording. Therefore, the Hon'ble Supreme Court of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shafhi Mohammad v. State of Himachal Pradesh, in which it has been held by a two Judges Bench of the Hon'ble Supreme Court that the requirement of certificate under Section 65-B(4) of the Evidence Act would be applicable only when such electronic evidence is produced before the Court by a person who is in position to produce such a certificate, being in the control of the said computer device and further that such a certificate is not to be insisted upon when such an electronic record is sought to be produced by the opposite party. However, even in this judgment, it has been emphasised that such an electronic evidence, as sought to be produced before the Court; has to be authentic and relevant. Otherwise this judgment, which holds that the requirement of the certificate under Section 65-B(4) is not always mandatory; is by a Bench of two Hon'ble Judges of the Hon'ble Supreme Court, whereas the earlier judgment, making the certificate to be mandatory, is by a Bench of three Hon'ble Judges of the Supreme Court and the three Judges' Bench judgment was delivered by specifically overruling the earlier judgment of the Supreme Court itself. Therefore, in the considered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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