2018 (10) TMI 1778 - HC - Indian Laws

Production of voice samples of the complainant; for comparison of the same with the recording - present petition are that the complaint was filed by the respondent against the present petitioner alleging that the petitioner/ accused was having friendly relation with the respondent/ complainant and the petitioner requested the respondent to advance him some friendly loan - arguments raised by the learned counsel for the petitioner are found to be without any basis of pleadings or the evidence. HELD THAT - Section 65-B of the Indian Evidence Act starts with a non obstante' clause which makes the Section prevalent over any other Section as contained in the Evidence Act. No doubt, the non-obstante clause has to be interpreted in a contextual perspective, despite that, it cannot be denied that because of the non-obstante clause used in Section 65-B of the Indian Evidence Act, this Section would be the governing code for the admissibility of the electronic record; existing in whatever form; and despite being the subject matter of any other provision of the Indian Evidence 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 petitioner had not even disclosed in his application as to when the information; as contained in Pen Drive and the Compact Disc, was recorded. It is also not disclosed as to what was the original instrument/ computer/device through which the information as contained in Pen Drive and CD was recorded. Even this is not disclosed as to what was the activity, which was being regularly carried out; during regular operation of which; the respondent had made the admitting statement; as contained in the Pen Drive and the CD sought to be produced on record by the petitioner - Since there is nothing on record to show the authenticity of the information as contained in Pen Drive and CD, the trial Court has rightly declined the same to take into consideration. Since the information as contained in the Pen Drive and CD itself has been found to be non-authentic by the trial Court, therefore, there is no question of the trial Court directing the respondent to give his voice samples; for being compared with the voice as contained in the Pen Drive and the CD. The trial Court has rightly dismissed the application filed by the petitioner - Petition dismissed.

Summary

Issues Involved:
1. Challenge to the rejection of the application for voice sample comparison.
2. Admissibility and authenticity of electronic evidence under Section 65-B of the Indian Evidence Act.
3. Right to fair trial and opportunity to rebut presumption under Section 139 of the NI Act.

Detailed Analysis:

1. Challenge to the rejection of the application for voice sample comparison:
The petitioner challenged the order dated 02.08.2018 by the Judicial Magistrate Ist Class, Amritsar, which rejected the application for obtaining the complainant's voice samples for comparison with recordings produced by the petitioner. The petitioner argued that these recordings were crucial for his defense in a case under Section 138 of the NI Act, involving a dishonored cheque of ?49,000/-. The trial court dismissed the application, noting the absence of details regarding the recording device, time, and context of the alleged recordings, and the lack of any affidavit or certificate regarding their authenticity.

2. Admissibility and authenticity of electronic evidence under Section 65-B of the Indian Evidence Act:
The court emphasized the stringent requirements for the admissibility of electronic records as evidence, as outlined in Section 65-B of the Indian Evidence Act. This section mandates that electronic records must be accompanied by a certificate that authenticates the device used for recording and the regularity of its operation. The court highlighted that the petitioner failed to provide necessary details about the recording device, the context of the recordings, and the authenticity of the electronic evidence. The court cited the Supreme Court's ruling in Anvar P.V. Vs. P.K. Basheer, which mandates that electronic records must be accompanied by a certificate under Section 65-B(4) to be admissible.

3. Right to fair trial and opportunity to rebut presumption under Section 139 of the NI Act:
The petitioner argued that he was entitled to a fair trial and the opportunity to rebut the presumption under Section 139 of the NI Act. He relied on several judgments to support his claim that the accused should be granted the opportunity to present evidence, including electronic evidence, to rebut the prosecution's case. However, the court found that the petitioner's arguments lacked a basis in pleadings or evidence. The court noted that the petitioner had not established the authenticity of the electronic evidence, and thus, the trial court was correct in rejecting the application for voice sample comparison.

Conclusion:
The High Court upheld the trial court's decision, emphasizing the importance of adhering to the legal provisions for the admissibility of electronic evidence. The court found no merit in the petition and dismissed it, directing the trial court to complete the trial within two months. The judgment underscores the necessity of establishing the authenticity of electronic records before they can be admitted as evidence in court.