Shreyas S vs. Ravikumar S N
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The petitioner, an accused in a case under Section 138 of the Negotiable Instruments Act, filed three applications before the Trial Court. These applications sought to send documents for handwriting expert opinion under Section 45 of the Indian Evidence Act, to produce electronic documents under Section 65B of the Indian Evidence Act, and to recall DW.1 under Section 311 of Cr.P.C. The Trial Court, by an order dated 15.02.2019, rejected all three applications. The rejection was primarily based on the lack of a certificate accompanying the electronic documents as required by Section 65B(4) of the Indian Evidence Act, and the petitioner not disputing his signature on the cheque for the Section 45 application. The petitioner sought to quash this order and direct the Trial Court to allow his applications.
Held
The High Court partly allowed the writ petition. Regarding the application under Section 65B of the Indian Evidence Act, the Court found that the Trial Magistrate had committed an error in rejecting it. Citing the case of State by Karnataka Lokayukta, Police Station, Bengaluru v. M.R. Hiremath, the Court held that while a certificate is necessary at the time of marking the document, it is not necessarily required at the initial filing stage. The petitioner was permitted to produce the documents along with the requisite certificate under Section 65B of the Indian Evidence Act. Consequently, the application under Section 311 of Cr.P.C. to recall DW.1 was also partly allowed, granting the petitioner an opportunity to lead further evidence. However, the application under Section 45 of the Indian Evidence Act was confirmed to be rightly rejected by the learned Magistrate, as the accused had not disputed his signature on the cheque, and the contention regarding other documents being in different handwriting was not a valid ground based on the ratio in Bir Singh v. Mukesh Kumar.
Key Issues
1. Whether the Trial Court erred in rejecting the petitioner's application filed under Section 65B of the Indian Evidence Act for the production of electronic documents, considering the absence of a certificate required by Section 65B(4)? 2. Whether the Trial Court erred in rejecting the petitioner's application filed under Section 45 of the Indian Evidence Act for a handwriting expert's opinion? 3. Whether the Trial Court erred in rejecting the petitioner's application filed under Section 311 of Cr.P.C. to recall DW.1? Petitioner's arguments: The petitioner contended that the electronic documents were crucial to prove his defence that he was in Delhi on the date of the alleged cheque issuance, thus questioning the possibility of issuing the cheque. He argued that the complainant's own statement highlighted a specific date for the cheque issuance, and his presence in Delhi would negate this. Revenue/State's arguments: The judgment records no specific arguments from the respondent (who was absent). However, the Trial Court's reasoning, which the High Court analyzed, focused on the non-compliance with Section 65B(4) of the Indian Evidence Act and the petitioner not disputing his signature for the Section 45 application.
Sections Cited
Section 65B, Section 45, Section 311, Section 138
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Cause title — parties, addresses and appearances
O R D E R
This petition is filed under Articles 226 and 227 of Constitution of India read with Section 482 of Cr.P.C. praying this Court to quash the order dated 15.02.2019 vide Annexure-E passed in C.C.No.76/2017 by issuing a writ of certiorari and directing the Court to allow the applications filed on 27.12.2016 and 22.12.2018 vide Annexures-B, C and D.
The factual matrix of the case is that the petitioner is an accused in the proceedings before the trail Court for the offence punishable under Section 138 of the Negotiable Instruments Act. The petitioner herein filed three applications (i)under Section 45 of the Indian Evidence Act to send the documents for the opinion of the handwriting expert; (ii) under Section 65B of the Indian Evidence Act to produce certain electronic documents and (iii) under Section 311 of Cr.P.C. recalling DW.
The Trial Court vide order dated 15.02.2019
3 considering the material available on record rejected all the applications on the ground that the accused in the present case is producing the original e-mail print out regarding Flight ticket booking, online tickets, online food order bill, online service tax copy and GST registration certificate and sought to accept this documentary evidence on his behalf. As per sub section 4 of Section 65B of the Indian Evidence Act, the electronic records must also be accompanied with a certificate identifying the electronic record, particulars of any device involved in the production of that electronic record, 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.
If any electronic records are not accompanied with any such certificate signed and issued by a person who is responsible for the official position in relation to the operation of the relevant device, they are not admissible under the said Section. Admittedly, the said documents are not accompanied with any such certificate issued by a person holding the responsible official position in relation thereto. Hence, there cannot be any order allowing the petitioner to produce those
4 documents. The other application is filed under Section 45 of the Indian Evidence Act to send the documents for handwriting expert so as to identify the admitted writings.
The learned Trial Judge considering the judgment of the Apex Court in the case of BIR SINGH V. MUKESH KUMAR has come to the conclusion that there is no need to allow the application. The counsel would submit that on the very day of alleged issuance of the cheque, he was in Delhi and in order to prove the said defence, he has to produce all these documents. It is also contended that the complainant in the complaint itself has specifically stated that on particular day, he had issued the cheque and when he has not been in town and he was in Delhi, the question of issuance of the cheque does not arise. In order to prove the said fact, he wanted to rely upon those documents. No doubt, the certificate is not produced along with the documents.
The Apex Court in the case of STATE BY KARNATAKA LOKAYUKTA, POLICE STATION, BENGALURU V. M.R.HIREMATH reported in (2019) 7 SCC 515 held that at
5 the time of marking the document, the certificate is necessary. It is further held that while filing the charge sheet, the certificate is not necessary. In the case on hand, an application was filed seeking permission to produce those documents. The certificate under Section 65B is to be produced at the time of marking the documents. Hence, I am of the opinion that learned Magistrate has committed an error in rejecting the application filed under Section 65B of the Indian Evidence Act. However, it is noticed that the petitioner has also sought for an order under Section 45 of the Indian Evidence Act seeking the opinion of the expert regarding the age of the handwriting and also the other handwritings available on the cheque and the learned Magistrate has rightly rejected the same when the accused has not disputed the signature available on the cheque.
In view of the ratio laid down in Bir Singh’s case, the contention that the other documents are in the handwriting of the different persons, is not a ground. Hence, in the case on hand, I do not find any error committed by the learned
6 Magistrate in rejecting the application filed under Section 45 of the Indian Evidence Act.
In view of allowing the application filed under 65B of the Indian Evidence Act, the witness DW.1 is to be recalled and he shall be permitted to lead his further evidence by placing the certificate under Section 65B of Indian Evidence Act while marking the document. In order to prove his defence, an opportunity is to be given to the accused, who has been examined as DW.1. 7. In view of the discussion made above, I pass the following:- ORDER (i) The Writ Petition is hereby allowed.
(ii) The order passed by the learned Magistrate vide Annexure-E rejecting the application filed under Section 65B of the Indian Evidence Act and also the application filed under Section 311 of Cr.P.C., is partly allowed by quashing the same.
7 (iii) The petitioner is permitted to produce the documents along with certificate as contemplated under Section 65B of Indian Evidence Act and the learned Magistrate is directed to give an opportunity to DW.1 to adduce further evidence as sought for.
(iv) The order passed by the learned Magistrate rejecting the application filed under Section 45 of the Indian Evidence Act is hereby confirmed. JUDGE
PYR
Reproduced from the public record of the Karnataka High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.