Vasantha v. Central Bureau of Investigation (CRL.M.C. No. 9381 of 2022)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944 CRL.MC NO. 9381 OF 2022** **AGAINST THE ORDER IN CRL.M.P.NO.244/2022 IN CC 18/2014 OF ADDITIONAL SPECIAL SESSIONS COURT (SPE/CBI)-III, ERNAKULAM PETITIONER/ACCUSED NO.2:** VASANTHA AGED 58 YEARS, W/O P.R.VIJAYAN, PRIYA BHAVAN, SN NAGAR, IRINJALAKUDA NORTH, THRISSUR., PIN - 680121 BY ADVS. V.JOHN SEBASTIAN RALPH K.J.JOSEPH (ERNAKULAM) VISHNU CHANDRAN RALPH RETI JOHN APPU BABU SHIFNA MUHAMMED SHUKKUR GIRIDHAR KRISHNA KUMAR VISHNUMAYA M.B. GEETHU T.A. ## **RESPONDENT/COMPLAINANT:** CENTRAL BUREAU OF INVESTIGATION REPRESENTED BY DEPUTY SOLICITOR GENERAL, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 BY ADV MANU S. DSG OF INDIA ## **OTHER PRESENT:** SRI SUVIN R MENON ,CENTRAL GOVT SC THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.02.2023, THE COURT ON 08.02.2023 PASSED THE FOLLOWING: Crl.M.C.No.9381/2022 ## -:2:- O R D E R Dated this the 8[th ] day of February, 2023 Annexure 1 order passed by the Additional Special Sessions Court (SPE/CBI)-III, Ernakulam (for short, the court below) in Crl.M.P. No. 244/2022 in CC No.18/2014 is under challenge in this Crl.M.C. 2. The petitioner is the accused No.2 in CC No.18/2014 on the files of the court below. The offences alleged are punishable under section 13(2) r/w 13(1)(e) of the Prevention of Corruption Act, 1988 r/w sections 120B and 109 of IPC. 3. The prosecution case in short is that the accused No.1, who is the husband of the petitioner, amassed assets disproportionate to his known source of income during the period 2003-2005. 4. On the side of the prosecution, 30 witnesses were examined. PW13, the Manager of the Kuri company by name Irinjalakuda Dharshana Kuries was examined to prove certain investments which the accused were having with the said Crl.M.C.No.9381/2022 -:3:- company. Exts.P67 to P71, computer printout of the ledger statements and passbook of the accused, were marked through him. Marking of the same was objected by the defence on the ground that those documents were not accompanied by a certificate u/s 65B (4) of the Indian Evidence Act. Thereafter the prosecution filed a petition as Crl.M.P. No.244/2022 invoking S.91 of Cr.P,.C. to issue summons to the then Chairman and the Managing Director respectively of the company to produce certificate u/s 65B(4)of the Indian Evidence Act. The petitioner objected to the said petition. The court below after hearing both sides allowed the petition as per Annexure 1 order. 5. I have heard Sri.John Sebastian Ralph, the learned counsel for the petitioner and the learned Central Government Counsel, Sri.Suvin R.Menon for the respondent. 6. The learned counsel for the petitioner submitted that Exts.P67 to 71 were not certified as required u/s 65B (4) of the Indian Evidence Act at the time when they were produced before the court and the prosecution cannot be permitted to fill up the lacuna at the fag end of the trial. The learned counsel further Crl.M.C.No.9381/2022 -:4:- submitted that since Exts.P67 to P71 were not certified as per the Evidence Act, the same cannot be treated as a document in the eye of law. The learned counsel also submitted that S.91 of Cr.P.C cannot be invoked to direct a person to create a document and to produce the same. Per contra, the learned Central Government Counsel, Sri.Suvin R. Menon relying on the decision of the Apex Court in _**Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Others**_ (AIR 2020 SC 4908) submitted that the certificate u/s 65B can be directed to be produced at any stage of the proceedings. The counsel further submitted that the impugned order does not suffer from any illegality or impropriety and hence does not warrant any interference. 7. S.65B of the Evidence Act does not speak of the stage at which such certificate must be furnished to the court. The Apex Court in _**Anvar P.V. v. P.K.Basheer**_ (2014 KHC 4602) observed that such a certificate must accompany the electronic record when the same is produced in evidence. The three Judge Bench of the Apex Court in _**Arjun**_ (supra) however held that so long as the hearing in a trial is not yet over, the requisite certificate can Crl.M.C.No.9381/2022 -:5:- be directed to be produced at any stage, so that information contained in electronic record form can then be admitted and relied upon in evidence. It was clarified that contemporaneous production is required only in such cases where certificate could be procured by the person seeking to rely upon an electronic record. It was specifically held in paragraph 50 of the judgment that in cases where either a defective certificate is given or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in S.65B (4) of the Evidence Act and require that such certificate be given by such person/persons. This Court in _**State of Kerala v. Sunil**_ (2022 (1) KLT 512) has also held that the requisite certificate u/s 65B (4) can be directed to be produced at any stage of the proceedings in appropriate case. Thus it is clear that so far as the production of certificate u/s 65B of the Evidence Act is concerned, there is no absolute prohibition in asking to prepare and produce the document at a later point of time. 8. The learned counsel for the petitioner submitted that Crl.M.C.No.9381/2022 ## -:6:- at any rate, permission can be granted to produce the certificate at a later point of time only in two eventualities mentioned in paragraph 50 of the judgment in _**Arjun**_ (supra). This point was considered by a Single Bench of this court recently in _**State v. Rev.Fr.Varghese Thekkekara**_ (2023 (1) KLT 517). Relying on the dictum laid down in _**Arjun**_ (supra), it was held that there is no express prohibition in summoning the persons concerned to prepare and produce the certificate u/s 65B (4) of the Evidence Act even in the circumstances not mentioned in paragraph 50 of the judgment. I perfectly agree with the said dictum. The dictum laid down in _**Arjun**_ (supra), _**Sunil**_ (supra) and _**Rev.Fr.Varghese Thekkekara**_ (supra) when applied to the facts of the case, I have no hesitation to conclude that the court below was absolutely justified in allowing the prayer to summon the witness to produce the certificate. 9. The learned counsel for the petitioner submitted that Exts.P67 to P71 are electronic documents which were generated about 20 years ago and the original of the same may not be available at present in the computer system. The counsel further Crl.M.C.No.9381/2022 -:7:- submitted that in such circumstances, the witness, even if summoned, may not be able to certify the document. It is clarified that upon receipt of the summons, it is up to the witness to decide whether he could give a certification in accordance with law. The Crl.M.C. is dismissed with the above observation. Sd/- **DR. KAUSER EDAPPAGATH JUDGE** **Rp** Crl.M.C.No.9381/2022 ## -:8:- ## **APPENDIX OF CRL.MC 9381/2022** PETITIONER ANNEXURES Annexure1 CERTIFIED COPY OF THE ORDER DATED 5.12.2022 IN CRL.M.P. NO. 244/2022 IN C.C NO. 18/2014 ON THE FILES OF ADDITIONAL SPECIAL SESSIONS COURT (SPE/CBI-III), ERNAKULAM