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TMI Blog2019 (6) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... nsumer 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 dealer for Samsung products pursuant to which the respondent firm placed orders for supply of various home appliances which were supplied by the petitioner company against which a running account of the respondent firm was maintained by the petitioner company. 3. At the time of appointment of the respondent firm, it had issued a letter enclosing two duly signed cheques bearing no. 569323 and 569324 drawn on Union Bank of India, Somajiguda, Hyderabad to the petitioner with an understanding that in the event of any amount due and payable by the respondent firm to the petitioner company, the petitioner company shall be authorized to fill up the date and such amount on the cheque as remains unpaid by the respondent firm. The cheques were duly signed by respondent no.5 and were issued with the consent of respondent no.2, 3 and 4. It was also agreed between the parties that in case the respondent firm chang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 further admitted that for every delivery a separate invoice was sent to the party however he did not have a copy of the said invoice. He further stated that there was no standard policy in consumer electronics and it could not be said that as per business practice there has to be a 3% discount on the total turnover to be issued by way of incentive to all the dealers/distributors besides price, scheme, promotion, discounts and losses in price war. In the ledger account filed in court, there are few entries showing some incentives but the said ledger was not for the entire period. The petitioner company gets the invoice copy after the supply is made as it shows to whom the said delivery was made. The invoices had not been filed on record to show the delivery to the respondent. The entire business took place between one Bhanu Murti and Manager of Samsung at Hyderabad. 8. Respondent no.2 and 3 in their statements recorded under Section 313 Cr.P.C. sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 retired from the respondent firm at the time of the commission of the offence and the same has been proved by the copy of the retirement deed placed on record by them. Respondent no.4 was also a sleeping partner hence no role of the day to day affairs of the respondent can be attributed to him. 16. As regards the liability of respondent No.5, it is his case that the cheque was given blank signed as a security which fact has to a great extent been admitted by the authorized representative of the petitioner. 17. Further, the petitioner company has placed on record the customer/ledger statement of account of the respondent firm maintained by them from 1st January 2011 to 30th November 2011 in order to show the liability. The same has been produced in the form of a computer printout which is a secondary evidence of the electronic record of data purportedly stored in the computer of the petitioner company. The petitioner company has not provided a certificate under Section 65B of the Evidence Act to prove the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplied with, as the law now stands in India. 20. Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65-A of the Evidence Act, read with Sections 59 and 65-B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65-B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield. 22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going agains ..... X X X X Extracts X X X X X X X X Extracts X X X X
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