Computer generated bills-account-Objection u/s 65B of Indian Evidence Act should be lodged before cross-examination of witness-High Court
For admissibility as evidence in a Court of Law, an electronic record (for example a computer generated invoice/bill) needs to be accompanied by a certificate as per section 65B of the Indian Evidence Act 1872.
Section 65B of Indian Evidence Act, 1872 was introduced in the year 2000. The section requires a certificate reflecting compliance of the condition laid down in Section 65B(2) and the said certificate has to be issued by a competent person as referred in Section 65B(4) of the Indian Evidence Act, 1872.
The said certificate should:
- describe the manner in which the electronic record was produced
- furnish the particulars of the device involved in the production of that record
- deal with the applicable conditions mentioned under Section 65 B(2) of the Evidence Act
- be signed by a person occupying a responsible official position in relation to the operation of the relevant device
In a recent judgment the Delhi High Court has held that defence under section 65B can be taken only before commencement of the cross examination.
ABCAUS Case Law Citation:
ABCAUS 2067 (2017) (09) HC
The Grievance:
This Second Appeal was filed under Section 100 of the Code of Civil Procedure, 1908 (CPC) by the appellant/plaintiff against the judgment of the first appellate court setting aside the order of the Trial court which had decreed the suit for recovery with interest in favour of the appellant/plaintiff and against the respondent/defendant on account of sale of computer peripherals.
The Substantial Question of Law framed/urged for determination:
Whether the judgment of the first appellate court is not grossly illegal and perverse, inasmuch as, the objection under Section 65B of the Indian Evidence Act was not available to the respondent/defendant because objection was not taken before commencement of cross-examination and therefore such objection as to the mode of proof of statement of account and the bills stood waived in view of the judgment of the Supreme Court?
Important Case Laws Cited/relied upon by the parties:
R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC
Brief Facts of the Case:
When in spite of service of the legal notice, the respondent/defendant failed to pay the amount due, the appellant/plaintiff filed a civil suit for recovery.
The respondent/defendant contested the suit. Through its written statement (WS) it was pleaded that the suit was barred by limitation. It was also pleaded that the suit was filed without any basis and there was no cause of action in favour of the appellant/plaintiff and against the respondent/defendant. On merits, it was pleaded though the respondent/defendant used to purchase computer peripherals from the appellant/plaintiff, however, never any item was purchased on credit and on each occasion payment was made in cash or through the cheque. The subject suit was therefore prayed to be dismissed
The Trial Court decreed the suit in favour of the appellant/plaintiff inter alia holding that the respondent/defendant admitted in his cross-examination as regards his signatures appearing on the Bill and the signatures and the appellant/plaintiff had proved the statement of account and the bills and therefore the amount was due to the appellant/plaintiff.
The Trial Court rejected the defence of the respondent/defendant and held that respondent/defendant could not take benefit of the Section 65B of the Indian Evidence Act, 1872 and that the statement of account and the bills being computer bills have to be held to be proved.
However, The first appellate court set aside the judgment of the Trial Court by holding that since the statement of account/bills were computer generated copies, had to be, were not supported by the necessary certificate under Section 65B of the Indian Evidence Act, and hence the appellant/plaintiff has to be taken to have failed to prove his case.
Observations made by the High Court:
The High Court observed that the question of law had to be answered in favour of the appellant/plaintiff and against the respondent/defendant, as per the ratio of the judgment of the Supreme Court the objection as to mode of proof of document can always be waived if the objection is not taken up at the relevant time.
The High Court observed that since in the present case appellant/plaintiff had filed his affidavit by way of evidence and thus proved the bills and the statement of account, the respondent/defendant had to object to the proof of the statement of account and bills before his commencement of cross-examination of witness, because, if this objection was taken then the appellant/plaintiff would have had an opportunity not to close his examination-in-chief and instead to lead additional evidence to prove the statement of account and the bills.
Therefore, applying the ratio of the judgment of the Supreme Court the High Court held that the first appellate court had erred in placing reliance upon Section 65B of the Indian Evidence Act and for dismissing the suit on this sole ground.
The High Court further added that besides the respondent/defendant did not file his statement of account, it did not file his income tax returns and if the same would have been done, from the Profit and Loss Account it could have been seen as to whether the statement of account existed in the books of the appellant/plaintiff. The entry in the Profit and Loss Account of the respondent/defendant would also have shown the amount due to the appellant/plaintiff from the respondent/defendant. Adverse inference therefore under Section 114 of the Indian Evidence Act had to be drawn against the respondent/defendant for not filing not only of his statement of account, but also not filing his income tax returns.
Held:
The judgment of the first appellate court was set aside and the judgment of the trial court was sustained.
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