Admissibility of electronic evidence under Section 65-B of the Indian Evidence Act

JUDGMENT

(Prayer: Criminal Original Petition has been filed under Section 482 of Cr.P.C., pleased to call for the records in C.M.P.No.3884 of 2023 in STC.NO.200 of 2021 on the file of the Judicial Magistrate, Fast Track Court - I, Erode, dated 05.07.2023 and set aside the same.)

The petitioner herein is the accused in STC.No.200 of 2021 on the file of Judicial Magistrate, Fast Track Court-I, Erode. This case arises from a private complaint filed under Section 138 of Negotiable Instrument Act.

2. The substance of the complaint is that, the accused/petitioner borrowed loan of Rs.1,50,000/- from the complainant and on the same day gave a post dated cheque. The cheque was presented for collection but returned with endorsement “insufficient fund”. The defence of the accused/petitioner is that, the subject cheque was not given to the complainant to discharge any existing debt payable to the complainant. The cheque was given as security to one Vela Finance in the year 2018 when the accused borrowed a sum of Rs.1,00,000/-. The said loan was paid in entirety with interest. However, the Vela Finance informed additional interest of Rs.7000/- to be paid and refused to give back the cheque. Vela Finance in collusion with the complainant had misused the cheque given as security and had laid the private complaint.

3. After the completion of examination of witnesses on either side, a petition under section 311 Cr.P.C filed to recall DW-1 and permit to mark additional 4 documents filed by the petitioner herein. The said petition was dismissed by the trial Court assigning reasons. The order of the Judicial Magistrate - I, Erode is challenged in this Criminal Original Petition filed under Section 482 Cr.P.C.

4. From the records it is found that, the trial has commenced and the complainant examined as P.W-1. In the course of evidence, the complainant had deposed that, the subject cheque was given to him by the accused at his residence as security on 05/03/2021 at 9.00 a.m. The cheques was given with post dated (05/04/2021), after receiving Rs.1,50,000/- in cash from him with promise to repay with 18% interest. To disprove this accusation, the accused wanted to establish that, he was not at the residence of the complainant on the said date and time. He wants to show alibi. Hence, he earlier filed a Miscellaneous Petition to examine Advocate Vijayakumar of Salem and the owner of Thirumal Cycle Stand, where he used to park his two wheeler. The trial Court dismissed his petition as bereft of details to summon them. The Revision Petition preferred before the II Additional District and Sessions Judge, Erode also dismissed.

5. In the meanwhile, the examination of witnesses on either side had come to end. Thereafter, the petitioner herein had filed a petition to reopen, recall D.W-1 and receive additional documents namely photos and videos recorded by him from the original documents in his Redmi - 6 mobile phone and the timeline generated from his mobile phone App and the statement of account for payment of EMI for the Redmi - 6 mobile with the screen shot of the account with Section 65-B Indian Evidence Act certificate.

6. More precisely, the examination of complainant side witnesses completed on 13/12/2023. Thereafter, the accused/Petitioner filed a petition to examine him as defence witness. Same was allowed and the accused/petitioner was examined in chief as DW-1 on 19/04/2023. Ex.D-1 to Ex.D-7 were marked and he was also cross examined. For further defence witnesses, the trial of the case was adjourned to 08/05/2023. At that juncture, the accused had moved this petition to recall and receive additional documents. The documents sought to be marked and the reasons are:-

“TAMIL”

7. The case of the petitioner is that, at the relevant point of time, he used to travel from Erode to Salem in the Coimbatore intercity train daily using season ticket to attend the office of Advocate Vijaykumar under whom he was working as a Junior Advocate. He used to keep his two whe