IN THE HIGH COURT OF ANDHRA PRADESH :: AIWARAVATI

OF FEBRUARY TWO THOUSAND AND TWENTY FOUR MONDAY ,THE NINETEENTH DAY

PRESENT

the honourable SRI JUSTICE TARLADA RAJASEKHAR RAO

CRIMINAL petition Nn- 970-^ np 2019

Between;

M.Ashok Kumar, S/o M.Muniramaiah D.N0.2O-3-I6/F/I, Chittoor District, AP. , Aged about 42 years, Business, Junction, Tirupati, Erramitta, Near Leela Mahal

...Petitioner/Petitioner/Respondent

AND

1. V.Deenadayal Naidu, S/o V.Krishnama Business, R/o D.No.2-7/2/2, Srinivasapuram, Tirupati Town Mandal, Chittoor District, Andhra Pradesh. Naidu, Aged about ⁵¹ years, and Urban

--.Respondent/Respondent/Complainant

P-S;, Rep by its Public 2. The State rep by its SHO, Tiruchanoor prosecutor. High Court of AP, Amaravathi.

...Respondent

Petition under Section 482 of Cr.P.C circumstances stated in the memorandum of the High Court praying that in the grounds of Criminal Petition passed in ^d 71 the order of dismissai STCNo35/2nir °''® CRLMP.No.2437/2018 in STC.No.35/2016 on the file of ^V Additional Junior consequently to allow the said miscellaneous Civil Judge, Tirupati, and petition.

LA. NO: ¹ OF 2niQ

Petition undor Section circumstances stated ⁱ the High Court STC.No.38/2016 482 of Cr.P.C praying that in the - in the Memorandum of Grounds of Criminal Petition, may be pleased to stay all further proceedings in on the file of V Additional Junior Civil Judge, Tirupati.

This Petition coming on for hearing, upon perusing the Memorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri N and the Public Prosecutor Bharat Babu, Advocate for the Petitioner on behalf of the Respondent No.2.

The Court made the folloviring;

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO CRIMINAL PETITION No.2723 OF 2019

ORDER:

Assailing the order dated 10.12.2018 in Crl.M.P.No.2437 of 2018 in STC.No.38 of 2016, the present Criminal Petition is filed. Whereas, the petitioner/accused has filed an application under Section 45C of Evidence Act, the said application was dismissed by the learned V Additional Junior Civil Judge, Tirupati for not producing 65B certificate and rejected the application filed by the petitioner/accused relying on the judgment of Anvar P.V. Vs. P.K.Basheer^, wherein the HonT)le Apex Court held that secondary evidence of electronic record sought to be given cannot be admitted in the absence of certificate as specified in 65-B(4) of Evidence Act.

Proof of electronic record is a special provisions introduced by the Information Technology Act, amending various provisions under the Evidence Act. Section 65 read with Section 59 and 65A as special provisions as to evidence relating to electronic shall be governed by the procedure prescribed under Section 65B of the Evidence Act to prove the contents of record

2014(10) see 473

electronic records. Section 59 is regarding proof of facts by oral evidence, which read as under:

"59. Proof of facts by oral evidence.- All facts, except the [contents of documents or electronic records], may be proved by oral evidence.

The Hon'ble Apex Court in Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal And Others^, in context with sub-section (4) of Section 65B has made the observation, as under:

Para-60: It may also be seen that the person who gives this certificate can be anyone out of several persons who occupy a "responsible official position" in relation to the operation of the relevant device, as also the person who may otherwise be in the "management of relevant activities" spoken of in Sub-section (4) of Section 65B. Considering that such certificate may also be given long after the electronic record has actually been produced by the computer. Section 65B(4) makes it clear that it is sufficient that such person gives the requisite certificate to the "best of his knowledge and belief [Obviously, the word "and" between knowledge and belief in Section 65B(4) must be read as "or", as a person cannot testify to the best of his knowledge and belief at the same time.]"

The Hon'ble Apex Court while placing reliance on case of Ansar's case (referred supra 1) and overruling the case of

Shafhi Mohammad Vs. State of Himachal Pradesh 2018 (2)

see 801, has held as under:

• (2020 (7) see I)

"the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, i.e. as laid down in Anvar P.V.case and incorrectly "clarified" in Shafhi Mohammed. Further oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law and clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. Further, Section 65B differentiates between the original information contained in the "computer" itself and copies made therefrom. The former being primary evidence, and the latter being secondary evidence.

The required certificate under Section 65B(4) is unnecessary if the original document itself is produced and this can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. However, where the "computer" happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the court, then the only means ofproviding information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4).

The Hon'ble Apex Court while answering the reference directed the courts dealing with electronic evidence to follow the general directions issued in para- 64 of ArjurPs case (referred supra 2). Further to ensure the preservation and certification at the appropriate stage, such directions are made applicable in all the proceedings, till rules and directions under Section 67C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.

I

3

As seen from the judgments, one cannot produce the original document without requisite certificate under Section 65-B(4) of Evidence Act is not admissible evidence in the present case, it seems that the petitioner/accused have not filed original document.

Learned counsel for the respondent has relied on the judgment of the HonT^le Apex Court in Ravinder Singh @ Kaku V. State of Punjab reported in reported in 2022 LiveLaw (SC) 641 stated that oral evidence in the place of such certificate is the case in the present matter, cannot possibly suffice as per Section 65-B(4) and is a mandatory requirement of law. , as

Therefore, the present Criminal Petition is disposed of directing the petitioner herein to produce original document within four (04) weeks from the date of receipt of copy of the order, failing which the Court may proceed with the trial in accordance with law.

As a sequel, miscellaneous petitions, if any, pending in this Criminal Petition shall stand closed.

SD/- S SRINIVASA PRASAD ^I ASSISTANT REGISTRAR //TRUE COPY//

To, /^CTIOT^^FICER

1. The V Additional Civil Judge (Junior Division)

2. The ^V Additional Judicial Magistrate V, Tirupathi. of First Class. Tirupathi.

4

3. One CC to Sri N Bharat Babu, Advocate [OPUC]

[OUrr * Amaravati

5. Three CD Copies

RDB

sree

HIGH COURT DATED:19/02/2024

ORDER

CRLP.No.2723 of 2019

p-'

DISPOSING THE CRIMINAL PETITION