Vrushali V. Joshi JUDGMENT
Vrushali V. Joshi, J.
1. Rule. Rule made returnable forthwith. Heard finally with consent of the learned Counsel for the parties.
2. A short question of law arises in this petition is whether procedure prescribed under the provisions of the Bankers' Books Evidence Act, 1891 is required to be followed while proving the documents or it requires certificate under Section 65-B of the Evidence Act, 1872.
3. The petitioner has filed the suit for specific performance. To prove that he has paid the amount by withdrawing the amount from bank accounts, he has produced Bank Statement and examined two witnesses from Bank. At the time of proving the Statement, Certificate under Section 65-B of the Evidence Act, 1872 was not produced and therefore, said documents were not exhibited. He has filed application for recalling said witnesses to prove said documents, which was rejected. Thereafter, the petitioner has filed the application to exhibit the documents stating that the Bank Officers were examined as P.W.-2 and P.W.-3. The said Officers brought with themselves the original documents about the extract of bank accounts and the entries in the bank accounts. They verified the documents and specifically and categorically in their examination-in-chief deposed that the plaintiff is having bank accounts in their Bank and he has withdrawn the amount from said account. However, the said extract of accounts could not be exhibited and it has been objected to give exhibit by the opposite party on the ground that the requirement of certificate under Section 65-B is not fulfilled by the plaintiff.
4. The learned Counsel for the petitioner has stated that the law is well settled in this regard that a party who is not in possession of a device from which a document is produced, not required to produce certificate. As such, it is least expected from the plaintiff to produce certificate under Section 65-B of the Evidence Act, 1872 in order to exhibit the said extract of accounts. P.W.-2 and P.W.-3 are the proper custodian of the record and they are authentic witnesses on the said extract of account who are categorically deposed before this Court that the plaintiff is having extract of accounts in their banks respectively and as such there is no any hindrance to give exhibits to the said extract of accounts as it is produced by authentic witnesses before this Court, which is not at all required any certificate under Section 65-B of the Indian Evidence Act. It is necessary to give exhibits to the certified bank accounts which is produced by the plaintiff on record.
5. The learned Counsel for the respondent Nos. 1, 2 and 7 opposed the petition stating that the learned Trial Court has considered the provisions of Banker's Books Evidence Act, 1891 and rejected the application. When special enactment is there, the provisions of the Evidence Act, 1872 will not be applicable. Hence, prays for dismissal of the petition
6. Heard both the learned Counsel and perused record.
7. This is a case where the petitioner has challenged the order passed by the Trial Court rejecting the application to exhibit the bank statement produced on record.
8. The documents which the plaintiff/petitioner wants to exhibit are print out of the Bank Statement of Buldana Urban Co-Operative Society Limited and State Bank of India and are governed by the provisions of special enactment i.e. the Bankers' Books Evidence Act, 1891.
9 Extract of statement of bank comes under the definition of . Section 2(3) of the Bankers' Books Evidence Act, 1891, which reads as under :
"Section 2(3)-"bankers' books" include ledgers, day-books, cash-books, account-books and all other records used in the ordinary business of the bank, whether these records are kept in written form or stored in a micro film, magnetic tape or in any other form of mechanical or electronic data retrieval mechanism, either onsite or at any offsite location including a back-up or disaster recovery site of both."
10. To prove said document as per law, one has to produce certified copy as per Section 2 (8) of the said Act, which reads as under :
"Section 2(8)-"certified copy" means when the books of a bank,-
(a) are maintained in written form, a copy of any entry in such books together with a certificate written at the foot of such copy that it is a true copy of such entry, that such entry is contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business and that such books is still in the custody of the bank, and where the copy was obtained by a mechanical or other process which in itself ensured the accuracy of the copy, a further certificate to that effect, but where the book from which such copy was prepared has been destroyed in the usual course of the bank's business after the date on which the copy has been so prepared, a further certificate to that effect, each such certificate being dated and subscribed by the principal accountant or manager of the bank with his name and official title; and
(b) consists of printouts of data stored in a floppy, disc, tape or any other electro-magnetic data storage device, a printout of such entry or a copy of such printout together with such statements certified in accordance with the provisions of section 2-A.
(c) a printout of any entry in the books of a bank stored in a micro film, magnetic tape or in any other form of mechanical or electronic data retrieval mechanism obtained by a mechanical or other process which in itself ensures the accuracy of such printout as a copy of such entry and such printout contains the certificate in accordance with the provisions of section 2-A."
11. Said print out should be accompanied with the certificate. Section 2-A of the said Act reads as under :
"2-A. Conditions in the printout.-A printout of entry or a copy of printout referred to in sub-section (8) of section 2 shall be accompanied by the following, namely: -
(a) a certificate to the effect that it is a printout of such entry or a copy of such printout by the principal accountant or branch manager ; and
(b) a certificate by a person in-charge of computer system containing a brief description of the computer system and the particulars of
(A) the safeguards adopted by the system to ensure that data is entered or any other operation performed only by authorised persons;
(B) the safeguards adopted to prevent and detect unauthorised change of data;
(C) the safeguards available to retrieve data that is lost due to systemic failure or any other reasons;
(D) the manner in which data is transferred from the system to removable media like floppies, discs, tapes or other electro-magnetic data storage devices;
(E) the mode of verification in order to ensure that data has been accurately transferred to such removable media;
(F) the mode of identification of such data storage devices;
(G) the arrangements for the storage and custody of such storage devices;
(H) the safeguards to prevent and detect any tampering with the system; and
(I) any other factor which will vouch for the integrity and accuracy of the system.
(c) a further certificate from the person in-charge of the computer system to the effect that to the best of his knowledge and belief, such computer system operated properly at the material time, he was provided with all the relevant data and the printout in question represents correctly, or is appropriately derived from, the relevant data."
Section 2-A specifically incorporates in view of the Information Technology Act, 2000. The provisions are similar to certificate required under Section 65-B of the Evidence Act, 1872. As the Bankers' Books Evidence Act, 1891 is applicable, the petitioner has to follow the procedure under this Act only. It is, therefore, necessary to file certified copy of the computerized document which is admissible as the original entry. Section 4 of the Act provides mode of proof of entries as under :
"Section 4-Mode of proof of entries in bankers' books.- Subject to the provisions of this Act, a certified copy of any entry in a banker's book shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise."
12. The Trial Court has rightly considered these Sections conjointly to ascertain the receptibility of such print out in evidence. The certified copy which includes a print out must be accompanied by a certificate as contemplated in Section 2-A (a), (b) and (c). Therefore, print out without certificate cannot be a document admissible in evidence and it must be along with the certificate by those persons as mentioned in said provisions. The petitioner has not followed the actual mode of proof of these documents as per Section 4 of the said Act. As special enactment is there, it will not be governed by the general provisions under Section 65-B of the Evidence Act, 1872.
13. In view of the above said observations, order passed by the learned Trial Court is perfectly justified and no interference at the hands of this Court is required. Hence, petition stands dismissed. Rule is discharged.
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