Non-production of a Section 65-B(4) certificate under the Evidence Act is a curable defect; however, an electronic record not properly filed, marked, or made part of the judicial record is inadmissible for comparison or forensic analysis.

O R D E R

This Civil Revision Petition has been filed, challenging the order passed by the Court below dismissing the petition filed by the revision petitioner seeking to send the pen drive allegedly containing the conversation between the petitioner and the respondent for comparison of the admitted voice of the respondent.

2. The respondent has filed a suit for recovery of money. Inter alia the petitioner had been resisting the same by raising a plea of discharge. The trial in the suit has already been commenced. When the matter was posted for recording the evidence on the side of the petitioner/defendant, the petitioner has come up with the instant application seeking to send the pen drive for comparison. The said application was dismissed. Aggrieved by that, the petitioner is before this Court.

3. The learned counsel for the petitioner assailing the order of the Court below submitted that the petition filed by the revision petitioner was dismissed by the Court below mainly on the ground that the petitioner has failed to comply the provisions of Section 65-B of the Evidence Act, by producing the certificate along with the electronic evidence (pendrive). The learned counsel by relying on the judgment reported in 2020 7 SCC page 1 [ Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal ] submitted that the certificate under Section 65-B of the Evidence Act need not be accompany the electronic evidence as it can be produced subsequently. In other words, the learned counsel for the petitioner submitted that the non production of certificate under Section 65-B of the Evidence Act is only a curable defect. The learned counsel for the petitioner further submitted that the dismissal of the application on the ground that the petitioner is dragging on the matter cannot be accepted and the learned counsel for the petitioner further submitted that the petitioner is ready to cooperate for the disposal of the suit within a time limit as fixed by this Court.

4. Per-contra, the learned counsel for the respondent submitted that the pen drive now produced by the petitioner for comparison of voice was not produced along with the written statement or marked at the time of trial. Therefore, it is the contention of the learned counsel for the respondent that a document which has not come on record cannot be compared. Further, the learned counsel for the respondent submitted that the petitioner seeks a direction to send the disputed pen drive to a private lab of his choice and the same is not permissible in law. It is also submitted by the learned counsel for the respondent that earlier, leave to defend petition filed by the petitioner was dismissed and it was set aside in the appeal. The Hon'ble High Court directed the Court below to dispose the suit within a time frame. Even thereafter the revision petitioner was set exparte. On his application, the exparte order was set aside. Therefore, the present application filed by the revision petitioner, when the matter is posted for advancing the arguments is nothing but only an attempt to drag on the proceedings.

5. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent and also perused the typed set of papers.

6. As far as the legal position argued by the learned counsel for the petitioner is concerned, the certificate under Section 65-B of the Evidence Act need not be produced along with the electronic record. Law in this regard is no longer Resintegra. It would be