2019 (6) TMI 172 - HC - Indian Laws

Dishonor of Cheque - admissibility of evidence - Section 65B of the Indian Evidence Act - HELD THAT - Legal position on the point is thus well settled that is if the document is otherwise inadmissible for want of a certificate or any other requirement of law, it being exhibited in the course of trial does not make the document admissible in law and though an objection as to the mode of proof can be waived off and should be taken at the first instance, however the objection as to the admissibility of a document which goes to the root of the matter can be taken at any stage. Considering the facts noted particularly because the petitioner has not been able to prove the legal liability findings of the learned Metropolitan Magistrate cannot be said to be perverse warranting interference of this Court. Leave to appeal petition is dismissed.

Issues Involved:
1. Exemption from filing requirements.
2. Delay in filing the leave to appeal petition.
3. Acquittal under Section 138 of the Negotiable Instruments Act, 1881.
4. Admissibility of electronic evidence without a certificate under Section 65B of the Indian Evidence Act.

Issue-wise Detailed Analysis:

1. Exemption from Filing Requirements:
The court allowed the exemption application subject to just exceptions, which is a procedural matter.

2. Delay in Filing the Leave to Appeal Petition:
The court condoned a delay of 39 days in filing the leave to appeal petition, accepting the reasons stated in the application. This procedural aspect allowed the case to proceed on its merits.

3. Acquittal under Section 138 of the Negotiable Instruments Act, 1881:
The petitioner, a company dealing in consumer electronics, appointed the respondent firm as a dealer. The respondent issued two signed cheques as security. When a balance of ?35,06,831/- remained unpaid, the petitioner filled in the cheque, which was dishonored due to insufficient funds. Despite legal notices, the respondent firm did not pay, leading to a complaint under Section 138.

The respondents pleaded not guilty. Respondent no.2 and 3 claimed they had retired from the firm before the offence date. Respondent no.4 denied signing the cheque and receiving legal notice. Respondent no.5 admitted signing the cheque but stated it was given blank as security.

The petitioner’s authorized representative, Manish Aggarwal, testified, presenting various documents, including the ledger account. However, during cross-examination, he admitted to the absence of crucial documents like invoices. Respondent no.2 and 3 reiterated their retirement, and respondent no.4 claimed to be a sleeping partner, unaware of the cheque’s circumstances. Respondent no.5 confirmed the cheque was blank and given as security.

The court found no evidence showing how respondents were responsible for the firm’s business at the offence time. Respondent no.2 and 3's retirement was proven, and respondent no.4 was a sleeping partner. Respondent no.5’s claim of the cheque being security was partially admitted by the petitioner’s representative.

4. Admissibility of Electronic Evidence without Section 65B Certificate:
The petitioner presented a computer printout of the ledger account to show liability. However, it lacked a Section 65B certificate, making it inadmissible. The court cited the Supreme Court’s decision in Anvar P.V., emphasizing that electronic records must be accompanied by a Section 65B certificate to be admissible. The court rejected the petitioner’s contention that the ledger was admissible due to lack of objection at the time of exhibition, stating that admissibility issues can be raised at any stage if they go to the root of the matter.

The court referenced R.V.E. Venkatachala Gounder, explaining that objections to the admissibility of documents should be timely. However, objections to the mode of proof can be waived if not promptly raised, but objections to the admissibility itself can be raised later.

Conclusion:
The court concluded that the petitioner failed to prove legal liability, and the findings of the Metropolitan Magistrate were not perverse, thus not warranting interference. Consequently, the leave to appeal petition was dismissed.

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