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Delhi High Court: Quashes Complaint under Section 138 of NI Act Due to Lack of Prima Facie Evidence

Delhi High Court: Quashes Complaint under Section 138 of NI Act Due to Lack of Prima Facie Evidence

Case title:  GARHWAL JEMS AND JEWELLERY PVT. LTD. & ORS. VS RMI STEELS LTD.

Case no.:  CRL.M.C. 2452/2022 & CRL.M.A. 10307/2022

Dated on: 29th February 2024

Quorum:  Hon’ble. MR JUSTICE NAVIN CHAWLA

FACTS OF THE CASE

This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (in short, ‘Cr.P.C.’) read with Article 227 of the Constitution of India, praying for quashing of the complaint filed by respondent under Sections 138 read with Section 142 of the Negotiable Instruments Act, 1881 (in short, ‘NI Act’), being CC No. 5840/2019, titled as M/s RMI Steels Ltd. v. M/s Garhwal Jems & Jewellery Pvt. Ltd. & Ors., pending before the Court of the learned Metropolitan Magistrate, NI Act-06, Central-District, Tis Hazari Courts, Delhi. The above complaint has been filed by the respondent alleging that the respondent entered into an Agreement to Sell dated 31.03.2018 with the petitioner no.1 for sale of its movables and immovable property of its factory situated at Plot No. A-1 and B-1 measuring 32926.20 sq. mtr. (Comprising 24406.73 sq mtr. of A-l and 8519.47 sq. mtr of B-1) at Village Dhalwala, Muni-ki-Reti Industrial Area, District Tehri Garhwal, Uttarakhand, for a total consideration of Rs.9.30 crores. That in terms of the said Agreement to Sell, the petitioners, after paying sale consideration to the tune of Rs.5,73,64,050/-, were liable to pay the balance sale consideration of Rs.3,47,05,950/-, which they undertook to pay in form of discharge of liabilities / dues of the respondent on or before 30.09.2018. The complaint further alleges that it was agreed between the parties that on failure on the part of the accused to discharge the said dues, it would entitle the respondent to recover the same from the petitioners / accused. In order to secure the payment of the aforesaid dues, a cheque bearing no.079173 for a sum of Rs.75,00,000/- drawn on the Punjab National Bank, Rishikesh, was issued by the petitioner in favour of the respondent as a security deposit. It is further alleged that the debt that the petitioners had undertaken to discharge, became due and payable in October 2018, however, as the petitioners failed to discharge the same, on 09.01.2019, an Addendum to the aforementioned Agreement to Sell was executed between the parties. It is further alleged that as the accused failed to discharge the debt by 29.04.2019 as well, in terms of the Addendum, the respondent presented the above-mentioned cheque, which was returned dishonored by the bank with the remarks ‘funds insufficient’. A legal Notice dated 30.04.2019 was sent by the respondent to the petitioners, to which the petitioners replied vide reply dated 18.05.2019, denying their liability to pay the said amount. The respondent, therefore, filed the above complaint.

 ISSUES

  • Whether the complaint under Section 138 of the Negotiable Instruments Act, 1881 (NI Act), discloses a prima facie case against the petitioners.
  • Whether the cheque in question was issued for the discharge of any debt or liability as defined under Section 138 of the NI Act.
  • Whether the respondent was forced to make any payment to its creditors due to the petitioners’ failure to discharge their liabilities.
  • Whether the complaint should be quashed under the inherent powers of the High Court under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.).
  • Whether the conditions specified in the Agreement to Sell and the Addendum for encashment of the security cheque were met.

LEGAL PROVISIONS

Code of Criminal Procedure, 1973 (Cr.P.C.)

Section 482: Saving of inherent powers of High Court

This section preserves the inherent powers of the High Court to make orders necessary to prevent the abuse of the process of any court or otherwise to secure the ends of justice. It is often invoked to quash criminal proceedings that do not disclose a prima facie case or are otherwise frivolous.

Constitution of India

Article 227: Power of superintendence over all courts by the High Court

This article grants every High Court the power of superintendence over all courts and tribunals within its jurisdiction. The High Court can exercise this power to ensure that subordinate courts function within the bounds of their authority and to correct any gross errors of law or fact.

Negotiable Instruments Act, 1881 (NI Act)

Section 138: This section makes it an offence if a cheque is dishonored due to insufficiency of funds or if the amount exceeds the arrangement made with the bank, provided certain conditions are met the cheque must be presented within six months (or its validity period). A notice demanding the payment must be issued to the drawer within 30 days of the receipt of information of dishonor. The drawer must fail to make the payment within 15 days of receiving the notice.

Section 142: Cognizance of offences This section outlines the conditions under which courts can take cognizance of offences under Section 138, including the necessity of a written complaint by the payee or the holder in due course of the dishonored cheque.

Section 139: Presumption in favour of holder This section presumes that the cheque was issued for the discharge, in whole or in part, of any debt or other liability unless the contrary is proved. This presumption shifts the burden of proof to the accused to show that there was no liability or debt.

CONTENTIONS OF THE APPELLANT

The learned counsel for the petitioner, drawing my attention to the terms of the Agreement to Sell dated 31.03.2018 and the Addendum dated 09.01.2019 executed between the petitioner no.1 and the respondent, submits that the cheque of Rs.75 lakhs could be encashed by the respondent only when the petitioners fail to make the payment in discharge of the liabilities of the respondent and the respondent is forced to make the payment for the same. The learned counsel for the petitioners submits that in the present case, the complaint does not state that the respondent had to make any payment to its own debtors for discharge of the liability, therefore, to its own showing, there was no debt owed by the petitioners to the respondent for which the security cheque of Rs.75 lakhs could have been presented by the respondent for encashment. He submits that, in the absence of these averments in the complaint, the complaint is not maintainable and is liable to be dismissed. In rejoinder, the learned counsel for the petitioner submits that the plea of the respondent that the lease deed has been obtained by misrepresentation is totally false and, in fact, it is the respondent who is trying to make an unjustified gain by encashing the cheque.

 CONTENTIONS OF THE RESPONDENTS

The learned counsel for the respondent submits that the plea raised by the petitioner is a disputed question of fact, which can be best determined by the learned Trial Court on evidence being led by the parties. She submits that the petitioners have also obtained a Lease Deed from SIDCUL based on misrepresentations.  Further submits that the Agreement to Sell and the Addendum were executed by the petitioners only to discharge its liabilities owed to such institutions and others, as is also recorded in the Agreement to Sell. She submits that the petitioners failed to make the payment of the dues to such institutions and others, thereby entitling the respondent to present the cheque for encashment. She submits that in any case, these are matters to be considered by the learned Trial Court and cannot be a ground for quashing the complaint at this stage.

COURT’S ANALYSIS AND JUDGEMENT

I have considered the submissions made by the learned counsels for the parties. A reading of the above averments would show that the respondent claims that the liability for which the cheque has been presented is under the Agreement to Sell dated 31.03.2018 read with the Addendum dated 09.01.2019, and that the cheque had been presented for encashment as the petitioners failed to discharge their debt by 29.03.2019. In the Complaint, there is no averment that the respondent had to pay the debt due to the default of the petitioners. A reading of the above terms/clauses would clearly show that it is only where the petitioners, as a purchaser, fail to pay the dues owed to the workers, the State Industrial Development Corporation of Uttarakhand Limited (SIDCUL), Service Tax dues, and the VAT dues, owed by the respondent, and the respondent, as a seller, has to pay the same, that the respondent would debit the account of the petitioner/purchaser, making the petitioner liable to pay the said amount, and thereafter proceed to encash the security cheque of Rs.75 lakhs. For the liability to arise for the presentation of the cheque for encashment, therefore, it is essential that the respondent is forced to make the payment to the workers/above-mentioned authorities, which liability, otherwise, the petitioners had undertaken to pay in terms of the Agreement to Sell and the Addendum. In the present case, the Complaint does not state that the respondent had to make any payment to any of the above-mentioned workers/authorities. Therefore, the liability for which the cheque of Rs.75 lakhs was given by the petitioners as security to the respondent, had not arisen and the cheque could not have been presented for encashment by the respondent. One of the conditions which has to be satisfied by the complainant for making out an offence under Section 138 of the NI Act against the drawer of the cheque, is that the cheque in question has been issued for the discharge, in whole or in part, of any debt or any liability of the accused. In the present case, as the debt or liability in terms of the Agreement to Sell and/or the Addendum itself had not arisen, Section 138 of the NI Act was not attracted and the ingredients of the offence were not satisfied. Though, the learned counsel for the respondent has placed reliance on Section 139 of the NI Act to submit that there shall be a presumption that a cheque issued is for discharge of any debt or other liability, however, the presumption in the present case stands negated by the very terms of the Agreement to Sell and the Addendum. Though the power under Section 482 of the Cr.P.C. is to be exercised sparingly and in the rarest of rare cases, at the same time, where, from a bare reading of the complaint, the offence is not made out, the power must be exercised to quash such a complaint. Applying the abovementioned principles enunciated by the Supreme Court to the facts of the present case, as the Complaint filed by the respondent lacks the necessary averments that would give rise to the debt and/or liability of the petitioners for which the cheque had been issued, the complaint filed by the respondent deserves to be quashed. Accordingly, the petition is allowed. Complaint, being CC No. 5840/2019, titled as M/s RMI Steels Ltd. v. M/s Garhwal Jems & Jewellery Pvt. Ltd. & Ors., pending before the Court of the learned Metropolitan Magistrate – 06, NI Act, Central District, Tis Hazari Courts, Delhi is hereby quashed. There shall be no order as to costs.

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Judgement Reviewed by – HARIRAGHAVA JP

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Supreme Court’s Decisive Verdict in Notable Murder Case: Affirmed the conviction decision of the Trial Court for murder, Highlights Witness Reliability and Legal Scrutiny

Case Title – Anees Vs. The State Government of NCT 2024 INSC 368

Case Number – Criminal Appeal No. 437 of 2015

Dated on – 3rd of May, 2024

Quorum – Justice J.B. Pardiwala

FACTS OF THE CASE

In the case of Anees Vs. The State Government of NCT 2024 INSC 368, Saira, the deceased in the present case, was married to the Appellant of this present case in the year 1982 as per the Muslim rites. They had a daughter from the wedlock, named Shaheena, who was five years old during the incident in 1995. On the 29th of December, 1995, at around 04:00 AM, a wireless operator of the Delhi Police notified a lady constable on duty in a PCR (Police Control Room) concerning a woman being stabbed in the House No. 220, Gali No. 3, Mustafabad. The information was communicated to the duty officer at P.S. Gokulpuri, who sent S.I. Mohkam Singh for inquiry. SI Mohkam Singh, upon reaching the location, found Saira lying in a pool of blood with multiple wounds of stabbings on her body. The Appellant was also present on the scene, having superficial injuries. Saira was declared deceased upon arrival at the hospital, whereas the Appellant was discharged after being preliminarily treated. The fact that the Appellant and the deceased had a strained relationship, often resulting a quarrel due to the habit of the deceased to leave the house without informing and returning late at night was unveiled during the investigations. It was alleged that on the night of the incident, a quarrel occurred between the Appellant and the deceased, leading to the Appellant stabbing the deceased with a knife. The only eye-witness in this case was the daughter of the Appellant and the deceased, Shaheena. An FIR was registered against the Appellant under Section 302 of the Indian Penal Code, 1860 based on a report prepared by the Investigating Officer. The post-mortem of the deceased revealed that she had sustained multiple stab injuries, indicating a violent attack. Shaheena, the daughter, initially claimed to witness the incident as her father, the Appellant, inflicting injuries on her mother but during the trial, she turned hostile. The knife used to stab the deceased was discovered at the instance of the Appellant. The Trial Court, after taking into consideration, all the evidences and witness, convicted the Appellant under Section 302 of the Indian Penal Code, 1860, sentencing him to life imprisonment and a fine. The High Court upheld the judgment of the Trial Court, stressing on the inconsistencies in the statements of the Appellant and his conduct, rejecting the explanations of the defense. The Appellant instituted an Appeal in the Supreme Court of India.

ISSUES

The main issue of the case whirled around whether the Appellant, accused of murdering his wife Saira, is guilty of the crime beyond a reasonable doubt?

Whether the testimonies of the witnesses, inclusive of the daughter Shaheena, is reliable and consistent?

Whether the post-mortem report and the forensic analysis of the evidence provide conclusive proof of the guilt of the Appellant?

Whether the inconsistent statement of the Appellant and his conduct, including his initial silence and subsequent explanation, contribute to establishing his culpability?

Whether the Appellant is entitled to the benefit of Exception 4 to Section 300 of the Indian Penal Code, 1860?

Whether the judgment of the Trial Court and the High Court of the conviction of the Appellant based on the evidence furnished during the trial justifiable?

LEGAL PROVISIONS

Section 8 of the Indian Evidence Act, 1872 prescribes the Motive, Preparation and Previous or Subsequent Conduct

Section 27 of the Indian Evidence Act, 1872 prescribes that How much of information received from accused may be proved

Section 101 of the Indian Evidence Act, 1872 prescribes the Burden of Proof

Section 105 of the Indian Evidence Act, 1872 prescribes the Burden of Proving that case of accused comes within exception

Section 106 of the Indian Evidence Act, 1872 prescribes that the Burden of proving fact especially within knowledge

Section 145 of the Indian Evidence Act, 1872 prescribes the Cross Examination as to previous statements in writing

Section 300 of the Indian Penal Code, 1860 prescribes the Definition of Murder

Section 300 Exception 4 of the Indian Penal Code, 1860 prescribes that If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Section 302 of the Indian Penal Code, 1860 prescribes the Punishment for Murder

Section 161 of the Criminal Procedure Code, 1973 prescribes the Examination of Witnesses by police

Section 162 of the Criminal Procedure Code, 1973 prescribes that the Statements to police not to be signed

Section 311 of the Criminal Procedure Code, 1973 prescribes the Power to summon material witness, or examine person present

Section 313 of the Criminal Procedure Code, 1973 prescribes the Power to examine the accused

CONTENTIONS OF THE APPELLANTS

The Appellants, through their counsel, in the said case contented that the case of the Respondents is entirely based on the circumstantial evidences and that Respondents failed to establish foundational facts for invoking the Section 106 of the Indian Evidence Act, 1872. The Appellants cited the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 and stated that it was accentuated that for a conviction based on the circumstantial evidences, the circumstances must be consistent only with the guilt of the accused and inconsistent with innocence.

The Appellants, through their counsel, in the said case contented that the sole eyewitness, Shaheena (PW-3) did not support the case of the Respondent and that her testimony suggested that the strangers entered the house, causing injuries to both the Appellant and the deceased.

The Appellants, through their counsel, in the said case contented that Sayed Ali (PW-9), the witness for the discovery of the knife, turned hostile and failed to prove the contents of the discovery panchnama.

The Appellants, through their counsel, in the said case contented that SI Mohkam Singh (PW-17) admitted that he questioned Shaheena before forwarding the written report to the police station, but this fact was not included in the written report and that this inconsistency raises doubts regarding the credibility of the testimony of the Investigating Officer.

The Appellants, through their counsel, in the said case contented that the Respondents failed to establish any motive for the Appellant to commit the crime and that no witness was examined to support the assumption that an altercation had arisen due to the deceased arriving home late at night.

The Appellants, through their counsel, in the said case contented that even if the case of the Respondent is accepted as true, it falls within the exception 4 to Section 300 of the Indian Penal Code, 1860 that the alleged crime occurred in a sudden fight upon a sudden quarrel without any criminal intent.

 CONTENTIONS OF THE RESPONDENTS

The Respondents, through their counsel, in the said case contented that there was no error on the part of the High Court, specifically errors of law, in dismissing the appeal of the Appellant and upholding the conviction issued by the Trial Court.

The Respondents, through their counsel, in the said case contented the following incriminating circumstances as foundational facts in support of the invocation of the Section 106 of the Indian Evidence Act –

The incident occurred inside the house of residence of the Appellant and the deceased, where the deceased was found severely injured.

The Appellant was present at the scene when the Investigating Officer arrived, indicating his proximity to the crime.

The Appellant did not disclose immediately to the Investigating officer that unidentified individuals entered the house and assaulted the deceased.

The Appellant’s story about unidentified individuals entered the house and assaulted the deceased, was contradictory to the other circumstances.

The false explanation of the Appellant recorded under the Section 313 of the Criminal Procedure Code, 1973, was another incriminating circumstance.

The clothes worn by the Appellant at the time of the incident had blood stains matching the blood group of the deceased.

Even though the discovery of the weapon may not have been established, the conduct of the Appellant, leading the Investigating Officer and witnesses to a nearby drain where the knife was claimed to have been found reflects negatively on him, according to the Section 8 of the Indian Evidence Act, 1872

The Respondents, through their counsel, in the said case contented that there is no merit in the appeal of the Appellant and that its dismissal is requested.

COURT ANALYSIS AND JUDGMENT

The court in the case of Anees Vs. The State Government of NCT 2024 INSC 368, considered the decision of the court in the State of W.B. Vs. Mir Mohammad Omar & Ors, (2000)8 SCC 382, and stated that the court should apply section 106 of the Indian Evidence Act, 1872 in Criminal cases with care and caution and that it cannot be said that it has no application to criminal cases. The court stated that to infer the guilt of the accused from the absence of the reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to be accused. The court stated that although the conduct of an accused may be a relevant fact under the Section 8 of the Indian Evidence Act, 1872, it still cannot be a ground to convict the accused for a serious offense like murder and that the court cannot Suo moto make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The court observed that the cross examination of the Respondent of hostile witnesses were insufficient. The court stressed on the duty of the Respondent to thoroughly cross examine the witnesses to uncover the truth, especially in cases where witnesses turn hostile. Further, the court criticized the passive role of the judge of the Trial Court, particularly considering the sensitive nature of the case involving a child witness. The Court rejected the argument of killing occurring due to the heat of the moment, stating that the Appellant failed to meet the criteria outlined in Exception 4. The court acknowledged the lengthy incarceration of the Appellant and granted him liberty to submit a representation to the State Government seeking remission of sentence. The State Government was directed to consider the representation within four weeks and communicate its decision to the Appellant.
The court dismissed the appeal, affirming the conviction decision of the Trial Court for murder. The court disposed off any pending applications. The judgment accentuated the importance of effective prosecution, judicial oversight, and adherence to legal principles in ensuring fair trials and dispensation of justice.

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Judgement Reviewed by – Sruti Sikha Maharana

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“Single instance of Adultery does not disentitle the Wife to Maintenance under Section 125(4) of the Cr.P.C: HC of MP while Interpreting Adultery”

Case title: Vijendra v. Rekhabai & Anr.

Case no.: Criminal Revision No.790 of 2019

Dated on: 15th April 2024

Quorum: Justice Prem Narayan Singh

FACTS OF THE CASE

In the realm of family law, the issue of maintenance often stands at the forefront, especially in cases where divorce has been granted on grounds such as adultery. The case in question, brought before the court as a criminal revision petition under Section 19(4) of the Family Courts Act read with Section 397 of the Cr.P.C., revolves around the award of maintenance to the respondent and her daughter by the learned Principal Judge, Family Court, Dhar M.P. The petitioner, aggrieved by the judgment, seeks a reduction in the maintenance amount.

The petitioner, having obtained a divorce decree on the grounds of adultery, contends that the respondent, his former wife, is disqualified from claiming maintenance. The learned trial Court had awarded Rs. 3000/- per month each to the respondent and their daughter. The petitioner bases his argument on the findings of adultery by the family court and cites precedents from the Madras and Karnataka High Courts to support his claim.

On the other hand, the respondent, while acknowledging her subsequent marriage, denies the accusations of adultery, asserting that mere allegations without substantial evidence cannot disqualify her from receiving maintenance. She relies on a judgment of the Delhi High Court to argue that only continuous and repeated acts of adultery warrant the disqualification from maintenance.

CONTENTIONS OF THE APPELLANT

The petitioner’s counsel argues that the decree of divorce, based on the finding of adultery, is conclusive evidence of the respondent’s disqualification from maintenance. He cites precedents from the Madras and Karnataka High Courts to reinforce this argument.

M.Chinna Karuppasamy vs. Kanimozhi wherein, the Court has observed that “A divorced wife, who lives in adultery, is disqualified from claiming maintenance under Section 125 of Cr.P.C.”

Shanthakumari vs. Thimmegowda wherein the Court has observed that “the oral and documentary evidence produced clearly establish that the petitioner is not honest towards husband and she has got extramarital affairs with neighbour Mahesh and all along, she asserted that she used to stay with him. When the petitioner is staying in adultery, the question of she claiming maintenance does not arise at all. the contention of the petitioner that the petitioner is a legally wedded wife and entitled for maintenance cannot be accepted in view of the conduct of petitioner, who is not honest and is leading adulterous life.”

CONTENTIONS OF THE RESPONDENTS

The respondent’s counsel refutes the allegations of adultery, emphasizing the lack of substantial evidence to support such claims. She contends that even if adultery occurred, it does not automatically disqualify the respondent from receiving maintenance, as per precedents set by the Delhi High Court.

Sh. Pradeep Kumar Sharma vs. Smt. Deepika Sharma, wherein the Court observed that “only continuous and repeated acts of adultery or cohabitation in adultery would attract the rigours of the provisions under Section 125(4) of Cr.P.C.”

LEGAL PROVISIONS

Section 19(4) of the Family Courts Act: This provision allows for the filing of revision petitions against judgments passed by Family Courts.

Section 397 of the Cr.P.C. (Code of Criminal Procedure): This provision grants the power of revision to higher courts over proceedings in subordinate courts.

Section 125(4) of the Cr.P.C.: This provision deals with the disqualification of a wife from receiving maintenance if she is “living in adultery.”

Section 41 of the Indian Evidence Act: This provision states that a judgment or decree on a particular matter, having attained finality, is relevant evidence for deciding similar matters in subsequent cases.

ISSUE

  • Whether the finding of adultery, leading to divorce, disqualifies the respondent from claiming maintenance.
  • What constitutes “living in adultery” as per the relevant legal provisions.
  • Whether the maintenance awarded by the trial court is excessive or justified.

COURT’S ANALYSIS AND JUDGEMENT

The court delves into the legal precedents cited by both parties to ascertain the definition and implications of adultery in maintenance cases. It emphasizes the distinction between isolated acts of adultery and continuous, repeated conduct, which is necessary to disqualify a spouse from maintenance.

In Ashok v. Anita, the HC of Madhya Pradesh interpreting the said provision and observed as reproduced –

A perusal of the provisions of section 125(4) of Cr. P.C. makes it clear that a stray act of adultery on the part of the wife does not amount to adultery within the meaning of section 125(4) and further does not disentitle the wife to maintenance.

Relying on the principles laid down by various High Courts, including the Madhya Pradesh High Court, the court concludes that mere allegations or isolated acts of adultery are insufficient to deny maintenance. It reaffirms that the term “living in adultery” implies a continuous adulterous conduct rather than occasional lapses.

In light of the evidence and legal precedents, the court finds no grounds to interfere with the trial court’s judgment. It upholds the maintenance awarded to the respondent and her daughter, considering the prevailing circumstances and the principles of justice.

The case serves as a significant interpretation of the legal provisions surrounding maintenance in cases of adultery. It underscores the importance of continuous, repeated conduct in establishing disqualification from maintenance, while also emphasizing the need for substantial evidence to support such claims. In upholding the trial court’s decision, the judgment ensures fair treatment and support for the dependent parties involved.

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Judgement Reviewed by – Chiraag K A

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DIGITAL EVIDENCE & It’s Complexities

Digital evidence means Information that has been stored or transmitted in binary format and is admissible in court is known as digital evidence. It can be located, among other places, on the hard drive of a computer and a cell phone. Electronic crime, sometimes known as e-crime, such as child pornography or credit card fraud is frequently linked to digital proof. It has been mentioned under section 65B of the Indian Evidence act as “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 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.”

So, basically there are seven types of digital evidences, they are: –

  1. Logs, a computer-generated data file that includes details about how an operating system, application, server, or other device is used, what it does, and how it operates. It basically keeps the tracks of user on the computer and the virtual world. It includes database logs, phone logs, OS logs, IP logs, Server Logs etc.
  2. Video Footage and Images, they are visual images captured via cameras Similar to the logs we previously mentioned, video and photographs fall under the category of visual data. This category includes a wide variety of digital evidence, such as voice recordings, mobile device recordings, CCTV footage, and recordings made with digital cameras.
  3. Archives are ordinary files that can be accessed directly from the file explorer and are part of the category of visible data types, which also includes a wide variety of extractable file formats. Archives are a kind of all-purpose source of evidence because they can contain anything from photos to text files to other types of files.
  4. Active data is described as ESI placed on a computer system’s storage medium that can be directly accessed, is easily observable by the operating system and/or application software used to create it, and is immediately accessible to users without needing to be undeleted, altered, or restored.
  5. Metadata is the unnoticed data that comes with every image, movie, and file you see. It aids in the organisation and management of data sets, but it can also offer privacy and security problems if left uncontrolled.
  6. Residual data is erased or rewritten data that, if successfully recovered, may include digital proof. It is characterised as an invisible data type since it is often not visible in a file browser.
  7. Volatile data is data that is not written to the disc and hence falls under the category of invisible data. Some viruses, for example, do not leave traces on the hard disc in order to prevent detection by antivirus software.

Now, the question pertains to the collection of digital evidence as they could collected trough various means including phones, Computers, CDs, Pen-drives, web pages, History etc. It involves preserving and documenting electronic data that may be relevant to a legal investigation or case

Steps involved in collection of Digital evidences are-

  • Identifying the scope: In order to know what kind of digital evidence you need to gather, you must first determine the precise scope of the inquiry or case. This could contain, among other things, emails, computer files, posts on social media, or network logs.
  • Document your Process: Keep thorough records of the entire gathering process. To prove the reliability and admissibility of the digital evidence in court, this documentation will be essential.
  • Secure the scene: Make sure the evidence is secured and shielded from unauthorised access if it relates to a computer or other digital device. To stop remote manipulation, turn off the device or unplug it from any networks.
  • Engage Professionals: It could be required to involve forensic professionals with expertise in digital forensics in complex instances. They can help with gathering and analysing digital evidence while abiding by the rules and regulations of the law.
  • Use Forensic Tools: Software programmes called “digital forensic tools” are made to gather and examine digital evidence. These tools frequently include built-in procedures to maintain a chain of custody and aid in maintaining the integrity of the data.
  • Make Forensic Copies: Make forensic copies of the original digital media—copies made bit-by-bit. You can use the evidence without changing or harming the original data by using these copies for analysis.
  • Maintain Chain of Custody: Clearly and continuously establish the chain of custody for the digital evidence. This involves recording when, by whom, and any modifications that were made to the evidence. The credibility and admissibility of the evidence in court are guaranteed by this paperwork.
  • Analyse the evidence: You might need to examine the gathered digital evidence for pertinent data, depending on the investigation’s nature. Keyword searches, data recovery, metadata analysis, and other methods might be used for this.
  • Preserve Metadata: Metadata, which includes creation and modification dates as well as user information, gives important details about the digital evidence. Maintaining and recording the evidence’s related metadata is important for proving its validity.
  • Adhere to the legal requirements: Observe all legal prescriptions and prescriptions for the gathering of digital evidence. Consult with legal experts to ensure compliance as laws and procedures may differ between jurisdictions.

Now, the traditional judicial system is based of physical testimony and evidences and they are ill-equipped with the tools to fight against the modern era crimes which involves cyber-crime, it is a Criminal activity carried out on computers, networks, or the internet. It entails using technology to conduct crimes or enable illicit activity. Cybercriminals take use of flaws in computer systems, networks, and software to obtain access without authorization, steal confidential data, commit fraud, disrupt services, and carry out other destructive acts. These crimes generate data stored as digital records, and courts can apportion liabilities only after studying such digital evidence. Digital Evidence has been marked under section 3(1)(e)(2) of the Indian Evidence act as any documentary evidence in electronic form presented before the court for inspection. And electronic records has been defined under section 2(1)(t) of the IT act while section 65B(2)  defines the conditions required for electronic record to be considered as digital evidence which includes –

  1. Computer 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;
  2. 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;
  3. 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
  4. 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.

And to present these records as evidences section 65B (4) of the Indian Evidence Act provide for presentation of certificate before the court, that is to say –

  1. identifying the electronic record containing the statement and describing the manner in which it was produced;
  2. 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 produced by a computer;
  3. 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 the knowledge and belief of the person stating it.

But non-presentation of this certificate wouldn’t invalidate the evidence as it has been held by the supreme court that In UOI & Ors. Vs CDR. Ravindra V. Desai ( 2018 (4) TMI 1939- SC ) as SC, held that non production of Certificate under section 65B is a curable defect and the same has been up held by Madras High court in Arjun PanditRao Kaotkar vs Kailash Kushanrao Gorantyal & Ors. ( 2020 (7) TMI 740) the HC held that Section 65B doesn’t speak of stage at which the certificate has to be presented before the court. These sections show that the law as it stands today provides for the production of information in digital form as evidence in a court of law without the additional burden of producing them in tangible form.

Now, there were several judicial precedents based on the admissibility of digital evidences and one of the prominent amongst them was Sundar v. State, 2023 SCC OnLine SC 310[1]

A three-judge bench of SC in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 where it held that The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B.[2]

As a result, under the current legal framework, digital copies of electronic records may be used as evidence in court if they meet the non-technical and technical requirements outlined in Section 65B of the Indian Evidence Act. According to the legislation as it exists right now, the individual using or overseeing the computer system that creates the record is required to have the certificate. The rules of admissibility of electronic records can be made more victim-friendly by making the necessary amendments to the law to do away with the requirement for the certificate. When it comes to cybercrimes, the court may accept digital evidence without expert testimony to support its admissibility. Consequently, call recordings, screenshots, spreadsheets, audio and video data, etc.   

[1] Sundar v. State, 2023 SCC OnLine SC 310 (para 28 and para 29).

[2] Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473(para 22)

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Written By – Shreyanshu Gupta