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2023 Supreme(Online)(Bom) 1333
HIGH COURT OF BOMBAY
Abhay Ahuja, J
Ved Prakash Ahuja – Appellant
Versus
Roma Prakash Ahuja – Respondent
Writ Petition No. 15064 of 2022
For the Appellants/Petitioners: Mr. Karl Tamboli, Mr. Hrushi Narvekar, Ms. Shaheda Madraswala, Ms. Jeniffer Morgrelia i/b Vashi & Vashi
For the Respondents: Ms. Uroosa Shaikh i/b Mr. Kunal Bhanage
Court emphasized mandatory certification under Section 65-B of the Evidence Act for admissibility of electronic records, allowing for court intervention when certification is unobtainable.
Headnote:(A) Constitution of India - Article 227 - Evidence Act, 1872 - Section 65-B - The petitioner challenged the rejection of an application to obtain certificates to authenticate Income Tax records of deceased - The court emphasized that obtaining certificates is essential for ensuring document authenticity before being admitted as evidence - The trial court erred in deeming the petitioner's application for such a certificate as a review of prior orders, leading to a wrongful rejection of the request - Vital for parties to anchor their documentary evidence properly. (Paras 4, 12, 18, 20)
(B) Admission of Evidence - The necessity for certification under Section 65-B of the Evidence Act for electronic records is stressed - Lack of this certificate by the trial court resulted in a non-application of mind and erroneous findings - Applications for necessary certificates should not be viewed as belated provided due efforts have been made, as established by precedent. (Paras 13, 19, 21)
| Table of Content |
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| 1. application for certification under section 65-b. (Para 2) |
1. Documents filed below letter Exh. 345 except last three pages be exhibited collectively, 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 necessary”
11. By the said application, the Petitioner submitted that although all efforts had been made to procure the certificate under Section 65-B , the same was not available and therefore, the application was being made. The following facts and circumstances in paragraph 4 of the said application, set out the efforts taken by the Petitioner :-
“a. The Plaintiff’s Advocates had issued a notice dated 31 July 2018 at Exh. 219 calling upon the Defendants to produce the Income Tax Returns of Prakash Ahuja, among other documents. b. However, the Defendants failed to produce the same, despite, Defendant No.1 admitted to having knowledge of the fact that it was one D. M. Harish & Co. who would file Defendant No.1 and Prakash Ahuja’s tax returns.
c. Thereafter, the Plaintiff filed an Application dated 20 December, 2018 Exhib. 291 for issuance of witness summons to the Commissioner of Income Tax Office for production of Income tax Returns of Prakash Ahuja and the Defendants.
d. The Income Tax Officer 1(2) 1 was deployed by the office of the Income Tax department, who produced copies of the Income Tax Records of Prakash Ahuja, before this Hon’ble Court. However, he failed to provide a certification from the Income Income Tax Department along with the said documents, certifying the same.
……...”
12. The Hon’ble Supreme Court in the case of Anvar P. V. Vs. P. K. Basheer , (2014) 10 SCC 473 has observed that whenever a person is seeking to rely upon a electronic record, for the same to be produced in the evidence, a certificate under Section 65-B of the Evidence Act is mandatory. Paragraph No. 14 in the said case is usefully quoted as under:-
“14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65-A, can be proved only in accordance with the procedure prescribed under Section 65-B . Section 65-B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions 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).
