IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 12509 of 2018 ==========================================================

AJAY JAGDISHCHANDRA SHARMA Versus LARSEN AND TOURBO LTD.

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Appearance:

MR NK MAJMUDAR(430) for the PETITIONER(s) No. 1 for the RESPONDENT(s) No. 1,2,3 ==========================================================

CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 24/08/2018

ORAL ORDER

Heard learned advocate Mr. N. K. Majmudar for the petitioner.

2. This petition filed under Article 227 of the Constitution is directed against order dated 27.4.2017 passed below Exhibit 23 application in Regular Civil Suit No. 529 of 2010. The petitioner plaintiff wanted to produce to be exhibited on record of the suit the electronic device described as Philips Go Gear MP3 player. It was claimed in the application that the device contained original voice recording of defendant No.3 with the plaintiff and other colleagues.

3. The suit was instituted by the petitioner plaintiff for declaration and permanent injunction that the action of the respondents in transferring the petitioner out side the Vadodara city was bad. It is in the proceedings of such suit, the petitioner wanted to produce the aforesaid electronic device to be exhibited.

4. Learned judge dismissed the application on the ground that the device sought to be exhibited by the plaintiff did not satisfy the conditions of section 65(B) of the Indian Evidence Act.

5. The law on the issue was delineated by the Apex Court in Anvar P. V. vs. P. K. Basheer [(2014) 10 SCC 473, observing in paragraph No.15 as under, “Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B 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.”

5.1 It was observed that the admissibility of the documents in the nature of electronic device, would dependent upon the satisfaction of the conditions under section 65B(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 reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.

5.1.1 The Supreme Court also mentioned about the provisions of section 65B(4) of the Evidence Act, according to which for giving a statement in any proceedings pertaining to an electronic record, the conditions would have to be satisfied, which conditions are, “(a) There must be a certificate which identifies the electronic record containing the statement;

(b) The certificate must describe the manne