9911796707
TMI Blog2023 (6) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... eing the Income Tax records of late Shri Prakash Ahuja in evidence. 3. Mr. Karl Tamboli, learned Counsel for the Petitioner draws the attention of this Court to the application under Exh. 453 and submits that this application was necessitated in as much as the Trial Court by an order dated 13 January 2022, while marking the Income Tax records of the Respondents No. 1 to 3 filed below letter at Exhs. 345, 441 and 442 in evidence, refused to do so with respect to the Income Tax records of late Shri Prakash Ahuja being the documents below list at Exh. 313 as it was observed that the photocopies of the Income Tax records were without a certificate from the Income Tax Department. 4. Learned Counsel for the Petitioner would submit that in view of the decision of the Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and Ors. (2020) 7 SCC 1, when documents are produced by authorities, in order to ensure the source and authenticity of the said documents, it is not only mandatory to obtain a certificate under Section 65-B (4) of the Indian Evidence Act, 1872, but despite efforts, if the person seeking such a certificate is unable to do so, he can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te must be produced to the Court, learned Counsel would submit that the decision of the Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar (supra) clearly addresses this issue in paragraph 52, when it says that Section 65-B does not speak of the stage at which such certificate must be furnished to the Court. Learned Counsel would submit that clearly the finding of the Trial Court is erroneous and deserves to be quashed and set aside and the direction be given to the Trial Court to call upon the Income Tax Department to provide a proper certificate / letter in support of the tax records of late Mr. Prakash Ahuja and on receiving such certificate mark list at Exh. 313 in evidence. 5. On the other hand, Mr. Kunal Bhanage, learned Counsel for the Respondents would submit that the Petition cannot be allowed in as much as the Petitioners have not challenged the order dated 13 January 2022, pursuant to which the Trial Court has not allowed documents filed below list Exh. 313 to be exhibited in evidence. Learned Counsel for the Respondents relies upon the reply affidavit filed in application under Exh. 453 and submits that the said application is in effect seeking a review of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d over possession of the said premises to him, but the Respondents refused to do so and claimed that the said premises was gifted to Prakash Ahuja by way of an oral family arrangement entered into between the Petitioner and Prakash Ahuja. According to the Petitioner, this stand of the Respondents without any evidence has necessitated the filing of the eviction suit before the Small Causes Court at Mumbai. That during the course of the first Respondent's cross-examination, the Petitioner had issued a notice dated 31 July 2018 calling upon the Respondents to produce Income Tax Returns of Prakash Ahuja among other documents, however, when despite best efforts, no such documents came to be produced by the Respondents, the Petitioner filed an application under Exh 291 on 20 December 2018 for issuance of witness summons upon the Commissioner of Income Tax to produce the Income Tax records of Prakash Ahuja and the Respondents and by an order dated 8 February 2019, the Trial Court issued summons to the Principal Commissioner of Income Tax-21 to depute an authorised person to produce the documents of Prakash Ahuja and the Respondents. Pursuant to the said order, on 28 February 2019, the Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vely, by putting Nos. 1,2,3... 2. Documents filed below letter Exh. 441 and 442 be exhibited collectively by putting Nos. 1,2,3... 3. Documents filed below list Exh. 313 are not exhibited." 9. It was observed that the list of documents at Exh. 313 appeared to be a hand written list of documents and the said documents being photocopies in respect of which there was no certification to the said documents by the concerned authority and accordingly, the documents filed below list Exh. 313 were not exhibited. 10. Aggrieved by the said order dated 13 January 2022, whereby the documents filed below list Exh. 313 were directed not to be exhibited, the Petitioner preferred an application under Exh. 453 dated 4 April 2022 for the following reliefs: "a. be pleased to mark the documents under the list at Exhibit 313, in evidence, without the necessary certificate; b. in the alternate to prayer clause (a) herein above, be pleased to call upon the Income Tax Department to provide a proper certificate/letter in support of the Income Tax Records of Prakash Ahuja, on receiving such certificate, mark Exhibit 313 in evidence; and c. any other reliefs this Hon'ble Court deems fit and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nditions mentioned under sub- Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65-B(2). Following are the specified conditions under Section 65-B(2) of the Evidence Act : (i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer; (ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity; (iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents ; and (iv) The information contained in the record should be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of the term is rendered impossible by an act beyond the control of human agency. The necessity for completing the election before the expiration of the term is enjoined by the Constitution in public and State interest to see that the governance of the country is not paralysed by noncompliance with the provision that there shall be a President of India. 15. The impossibility of the completion of the election to fill the vacancy in the office of the President before the expiration of the term of office in the case of death of a candidate as may appear from Section 7 of the 1952 Act does not rob Article 62(1) of its mandatory character. The maxim of law impotentia excusat legam is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legam is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. 'Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him.' Therefore, when it ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with law, and in accordance with the requirements of justice on the facts of each case. When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the Cr.PC." 14. The Petitioner has relied upon the decision in the case of Arjun Panditrao Khotkar (supra) in support of the application under Exh. 453. The Respondents filed a reply to the said application and submitted that the Petitioner was in effect seeking a review of the order dated 13 January 2022 without challenging the same. It was submitted that the Petitioner ought to have challenged the order dated 13 January 2022. It was also submitted that Petitioner never demanded or insisted the issuance of certificate under Section 65-B and has made the said application not only belatedly but as an afterthought to cover up the Petitioner's lapses in the evidence. The Trial Court after considering the application as well as the reply, passed the impugned order dated 30 April 2022 below Exh. 453 rejecting the said application by the Petitioner to call upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal to call upon the Income Tax department to do so. Not only that the Petitioner has also as set out above, taken all efforts to procure not only the Income Tax Returns of Prakash Ahuja, but had also obtained an order for issuance of witness summons to the Commissioner of Income Tax for production of Income Tax Returns of the Respondents as well as Prakash Ahuja. It was just that the Income Tax officer deployed by the Commissioner pursuant to the order dated 8 February 2019 produced copies of the Income Tax records of the Respondents as well as Prakash Ahuja but certificates only in respect of the returns of the Respondents were furnished. Therefore, only the letters below Exhs. 345,441 and 442 with respect to the Respondents' were exhibited but since documents filed below list Exh. 313 were without the necessary certificate, the same were not exhibited in evidence. Paragraph 14 of the order dated 13 January 2022 quoted above clearly bears this out. 16. The arguments made on behalf of the Respondents that the order dated 13 January 2022 ought to have been challenged or that the challenge to the order dated 30 April 2022 amounts to a review of the order dated 13 January ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Court for direction to the concerned department for submitting certificate. The learned Trial Judge has clearly erred in holding so. 18. I am, therefore, of the considered view that there clearly has been a non application of mind resulting in perversity, warranting interference of this Court. The order dated 30 April 2022, therefore deserves to be quashed and set aside and is hereby quashed and set aside. The Writ Petition is made absolute in terms of prayer clause (a), which reads thus:- "(a) this Hon'ble Court be pleased to issue a Writ of Certiorari or any appropriate Writ, order of direction under Article 227 of the Constitution of India, calling for the papers and proceedings in Order below Exhibit No. 453 in L.E. Suit No. 71/85 of 2012 filed by the Petitioner before the Hon'ble Small Causes Court at Mumbai, and after going through the legality and validity of Order dated April 30, 2022, the same be quashed and set aside;" 19. The Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar (supra) has clearly observed that when documents from electronic record are produced by authorities and are sought to be used in evidence, in order to ensure the source an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
