The court ruled that secondary evidence is admissible under Section 65B(4) of the Indian Evidence Act, and new defenses cannot be raised at the appellate stage without prior foundation.

This matter is listed for admission and I have heard the learned counsel for the petitioner.

2. In this revision petition, the petitioner has prayed this Court to set aside the order passed by the First Appellate Court rejecting the application filed under Section 391(2) read with Section 207(V) of Cr.P.C. The prayer made in the said application is with regard to direct the respondent-complainant to produce mobile handset with its SIM card, memory card/ chip through which Ex.P1-CD is allegedly retrieved.

3. It is contended that the alleged defamatory statement was said to be telecasted on 29.03.2017 and 30.03.2017. But, on 30.03.2017 happened to be on Ugadi Festival. The Anchors of the TV channels used to wear traditional or ethnic dresses on the said date. But in the CD produced by the respondent, the Anchor is found wearing a suit and tie. Further, the respondent in the Certificate under Section 65B of the Evidence Act appended to the print out of Ex.P1, contended that the data was stored in his mobile phone having No.9845239894 i.e., Apple-7 model. But the mobile phone is not produced with its SIM card and memory chip to show that the alleged video clipping was telecasted on 29.03.2017 and 30.03.2017. Further, the respondent in his cross-examination has admitted that the said mobile phone is in the possession of his daughter at present staying in Canada. Hence, there is no difficulty for the respondent to procure the same and produce before the Court. It is further contended that the appeal proceedings being continuation of the Trial Court, the Appellate Court can record additional evidence by calling the parties before the Court, summon additional documents and dispose of the appeal based on the additional evidence. This is also supported by many of the judgments of the Hon'ble’ High Court of Karnataka and the Hon'ble Supreme Court of India. Hence, prays to allow the application.

4. This application was resisted by the respondent by filing statement of objections contending that the same is not maintainable either in law or on facts. Only to delay the disposal of the case, this petition is filed without any proper reasons. Admittedly, the defamatory news was telecasted on 29.03.2017 and 30.03.2017. But, the photos produced by the appellants with the petition is of the telecast dated 30.03.2017 only. Moreover, at the initial stage, the appellants have approached the Hon'ble High Court of Karnataka and Hon'ble Supreme Court of India to quash the proceedings against him.

After being unsuccessful in his efforts, he had faced the trial. It is also contended that the appellants have not at all raised any such matter or suggestion to that effect in the cross- examination of the respondent before the Trial Court. Now, at this belated stage, the appellants cannot make use of such manipulated photos and seek for leading further evidence by summoning new documents. As such, the petition filed at this stage for adducing further evidence does not survive and sought for rejection of the same.

5. The First Appellate Court also formulated the point whether the respondent needs to be directed to produce his mobile, namely Apple-7 with SIM card No.9845239894 and memory chip at this stage. The First Appellate Court, having perused the records, observed that the respondent had retrieved the data with regard to telecasting of alleged defamatory news item on 29.03.2017 and 30.03.2017 from his mobile. The video clippings in the CD at Ex.P1 discloses that the Anchors were wearing suit and tie i.e., western attire. The Court also taken note of the grounds which have been urged and formed the opinion that 30.03.2017 happens to be the day of Ugadi Festival. But admittedly, in the petition itself, the appellants had categorically contended that news item was said to be telecasted on 29.03.2017 and 30.03.2017. If the news item was telecasted on 29.03.2017 then telecast on 30.03.2017 was a repeat telecast. Hence, the contention of the appellants that