spb/- 1 wp2456-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 2456 OF 2011 M/s. Sharekhan Limited. ... Petitioner. V/s. Mr. Amit Navinkumar Shah ... Respondent. --- Mr. C.V. Lad for the Petitioner. Mr.Ronak Shah for the Respondent. ----- CORAM : R.M. BORDE, J. DATE : 25TH AUGUST, 2011. P.C. : 1 Heard. This petition is raising exceptions to the order passed by the 7th Joint Civil Judge, Senior Division, Pune on 18.09.2010 below Exh. 32 in Special Civil Suit No. 382 of 2009. The respondent originally tendered in evidence certain e-mail sent by the plaintiff-respondent as well as received by the plaintiff-respondent from the defendant, the petitioner herein. An application was tendered to the court, praying therein that the e-mails, copies of which are to be tendered in evidence, are transcribed copies placed on record to be taken in evidence and the same be exhibited and the contents therein be read in evidence. The application was opposed by the petitioner herein, the original defendant, contended that the spb/- 2 wp2456-11.sxw documents in the form of information containing electronic record cannot be admitted in the evidence. The trial court after considering the application as well as affidavit tendered by the plaintiff, proceeded to take the copies of documents containing electronic record in evidence and directed to put exhibits to the said record. The counsel appearing for the petitioner vehemently contended that the procedure prescribed under section 65-A and 65-B of the Evidence Act relating to the admissibility of the electronic record is not followed. The requisite condition for admitting the electronic record in evidence as contained in sub-sections 2 and 4 of Section 65-B of the Evidence Act having not been satisfied and therefore, the order passed by the trial court permitting production of the documents i.e. e-mail placed on record by the plaintiffs is liable to be set aside. Section 65-B of the Evidence Act reads thus : “65-B. Admissibility of electronic records :-- (1) Notwithstanding anything contained in this 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 (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or spb/- 3 wp2456-11.sxw production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The condition referred to in sub-section (1) in respect of a computer output shall be the following namely:-- (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period , information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) throughout the material part of the said period, the computer was operating properly or , if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or spb/- 4 wp2456-11.sxw processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section 2 was regularly performed by computers, whether -- (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,-- (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was spb/- 5 wp2456-11.sxw produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub- section it shall be sufficient for a matter to be stated to the best of knowledge and belief of the person stating it. (5) For the purposes of this section,-- (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; 1. a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. spb/- 6 wp2456-11.sxw Explanation .-- For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.] 2. It is the first contention of the petitioner that there has to be a certification by a responsible official or by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities. However, in the instant matter, according to the petitioner there is no such certification by a person occupying a responsible official position. The respondent himself has in his affidavit given the above declarations and stated facts which fulfill requirements contained in section 65-B which, according to the petitioner cannot be considered as a certification contemplated by the Act. According to the petitioner in case of a private individual, a certification has to be by an expert. In the instant matter, according to the petitioner firstly, there is no certification and secondly, contents of the affidavit cannot be construed as a certification, satisfying the requirement of sub-section 4 of Section 65-B of the Act. 3 I have considered the provisions of sub-sections 2 and 4 of Section spb/- 7 wp2456-11.sxw 65-B and I have also read the contents of the affidavit tendered on record by the respondent, original plaintiff. The requirement in relation to the making of a statement as contemplated by the sub-section (2) (a),(b),(c) and (d) of the Act finds place in the affidavit tendered by the respondent, original plaintiff. Similarly, the other conditions raised in the affidavit that is the affirmation made on oath by the plaintiff can be construed as certification required under sub-section 4 of Section 65-B. The plaintiff, the respondent herein being a private individual, there can be no certification by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities. In this case, it is the plaintiff himself who is a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities in question; the computer is stated to have been operated by the plaintiff and the data/ material generated from the computer relating to electronic record which has been placed before the court is derived by the plaintiff by use of computer which was regularly put in operation by him. The statement and undertaking contemplated by sub-section 2 and sub-section 4 of Section 65-B of the Evidence Act find place in the affidavit tendered by the plaintiff alongwith the application. Thus the requirement of section 65-B of the Evidence Act has been substantially complied with. spb/- 8 wp2456-11.sxw 4 In this view of the matter, I do not find any error or irregularity in permitting the plaintiffs to place on record the electronic record in the form of documents at serial numbers 4 to 12, 15,16,19 and 20 produced below list Exh. 26. The order passed by the court below does not suffer from any illegality or irregularity. The petition is devoid of substance. Hence, stands dismissed. [R.M. BORDE,J]