Karnataka High Court

Maheshwari S Hiremath vs Dr Shegedar Praveen K on 22 October, 2024

Author: S.R.Krishna Kumar

Bench: S.R.Krishna Kumar

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                                                          NC: 2024:KHC-K:7776
                                                       WP No. 202785 of 2024




                              IN THE HIGH COURT OF KARNATAKA,

                                     KALABURAGI BENCH

                          DATED THIS THE 22ND DAY OF OCTOBER, 2024

                                            BEFORE
                       THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
                          WRIT PETITION NO. 202785 OF 2024 (GM-FC)

                   BETWEEN:

                       MAHESHWARI S. HIREMATH
                       W/O DR. SHEGEDAR PRAVEEN K
                       D/O SHIVABASAYYA HIREMATH
                       AGED ABOUT 45 YEARS,
                       R/O NO.2-491, MAHESHWARI NILAYA,
                       JAGAT, KALABURAGI

                                                                 ...PETITIONER

                   (BY SRI. RATNA N. SHIVAYOGIMATH, ADVOCATE)

                   AND:
Digitally signed
by SUMITRA             DR SHEGEDAR PRAVEEN K
SHERIGAR
                       S/O SRI. KARABASAPPA V SHEGEDAR,
Location: HIGH
COURT OF               AGED ABOUT 47 YEARS,
KARNATAKA              R/O DOOR NO.40, METTUTHEERUVU, KOTTAR,
                       NAGARCOIL POST KANYAKUMARI DISTRICT,
                       TAMIL NADU 62902

                       PERMANENT RESIDENT AT DOOR NO.38A,
                       POST DONGAON (M), VIA KAMALNAGAR,
                       TQ.AURAD(B), DIST.BIDAR - 585417

                                                                ...RESPONDENT

                   (SRI. HANAMANTRAYA SINDOL, ADV. FOR C/R1)
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                                        NC: 2024:KHC-K:7776
                                    WP No. 202785 of 2024




     THIS WRIT PETITION IS FILED UNDER ARTICLES 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO (A)     ISSUE A WRIT OR
DIRECTION OR ORDER WRIT IN THE NATURE OF CERTIORARI,
QUASHING THE IMPUGNED ORDER DATED 25.09.2024 PASSED BY
THE PRL JUDGE, FAMILY COURT KALABURAGI IN M.C NO. 265/2018
VIDE ANNEXURE M, ETC.,

     THIS PETITION, COMING ON FOR PRL. HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:

CORAM:    HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR


                         ORAL ORDER

(PER: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR)

This petition by the respondent in M.C.No.265/2018 on

the file of the Principal Judge, Family Court, Kalaburgi is

directed against the impugned order dated 25.09.2024,

whereby the certificate submitted/filed by the respondent

under Section 65A and 65B of the Indian Evidence Act was

accepted by the Family Court.

2. Heard the learned counsel for the petitioner and

the learned counsel for the respondent. Perused the material

available on record.

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3. A perusal of the material on record will indicate

that the respondent-husband instituted the aforesaid

matrimonial proceedings in M.C.No.265/2018 against the

petitioner-wife seeking dissolution of their marriage by a

decree for divorce alleging cruelty and for other reliefs. The

said proceedings are being contested by the petitioner.

During the pendency of the proceedings, the respondent filed

an application i.e. I.A.No.VII invoking Section 65A and 65B

of the Indian Evidence Act, 1872 for permission to produce a

Compact Disc containing certain telephonic conversations

between him, his parents, brothers and sisters and the

petitioner. It was contended by the respondent that the said

conversations were relevant and material for the purpose of

adjudication of the issues in controversy between the

parties. The said application having been opposed by the

petitioner, the family Court allowed the said application vide

order dated 02.02.2022 which was assailed by the petitioner

herein, in W.P.No.202290/2022, which was disposed of as

here under:

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" ORDER

The petitioner has challenged an order dated 02.09.2022 passed by the Principal Judge, Family Court, Kalaburagi in MC No.265/2018 by which an application filed by the respondent herein under Section 65(A) & 65(B) of Indian Evidence Act, 1872 was allowed.

2. The respondent herein filed a petition under Section 13(1)(ia) of Hindu Marriage Act, 1955 for dissolution of marriage with the petitioner herein.

3. The petition was contested by the petitioner herein on various grounds.

4. When the evidence in the proceedings had Commenced, Section 65(A) & 65(B) of Indian Evidence Act to permit him to produce a compact disc containing certain telephonic conversations between him and the parents, brothers and sisters of the petitioner herein. He claimed that he had recorded the conversation on his phone and had transferred it to a computer system and thereafter burnt it to a compact disc. He also filed a certificate in view of Section 65B(4) of the Indian Evidence Act.

5. The application was contested by the petitioner herein on various grounds.

6. The Trial Court in terms of an order dated 17.10.2019 allowed the compact disc and messages to be exhibited as evidence which was challenged before this Court in W.P.No.205545/2019. A Co-ordinate Bench of this Court relied on the judgment of the Apex Court in the case of Arjun Panditrao Khotkar V/s Kailash Kushanrao Gorantyal and others, reported in 2020 (7) SCC 1,65(B)(4) have to be fulfilled and thus set aside the order passed by the Trial Court on 17.10.2019 and remitted the case back to the Trial Court.

7. Later the Trial Court in terms of the order dated 02.09.2022 allowed the application on the ground that mere production of electronic evidence is not sufficient to prove the allegations made and it is for the respondent to prove the conversation. Being aggrieved by the said, the petitioner is before this Court.

NC: 2024:KHC-K:7776

8. The learned counsel for the petitioner contends that the conversation allegedly was recorded by the respondent on his mobile phone and the same was

compact disc. However, she contended that, the respondent has deliberately not furnished the IME number of the telephone on which the conversation was recorded, the time period when they were recorded, the configuration make and model of the computer system on which it was downloaded, the date and time when it was downloaded and the date and time when it was burnt on to a compact disc. She therefore submits that the certificate under Section 65B(4) is in complete and therefore the petitioner is not in a position to cross examine the respondent about the veracity of the statements made in the certificate. In support of her contention, she relied upon the judgment of the Hon'ble Supreme Court of India in the case of Ravinder Singh V/s State of Punjab, reported in 2022 (SC) 46, and contended that the certificate under Section 65B(4) is mandatory and any non-compliance or short compliance should result in rejection of the application.

9. The learned counsel for the respondent on the other hand submitted that these conversations were recorded over a period of time and are nearly 7 to 9 years old now. He submits that the respondent has no objection to furnish the IME details of the phone on which the conversations were recorded, the dates on which the conversations were recorded on the phone, the dates and

make, model and configuration of the computer and the date and time on which they were burnt on to a CD. He submits that a fresh certificate under Section 65B(4) would be filed giving all the details.

10. In view of the submission of the learned counsel for the respondent that the respondent would furnish all the details required to establish that the electronic evidence recorded on the compact disc is done without any human intervention, it is unnecessary to disturb the impugned order but suitable conditions deserve to be imposed before accepting the evidence in electronic form.

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11. In that view of the matter, the petition is allowed in part.

The impugned order accepting the certificate under Section 65(B)(4) of the Evidence Act is set aside. The respondent is directed to file a fresh certificate furnishing the IME details of the mobile phone on which the conversations were recorded and their respective dates, the network service provider as well as the dates when

system, the make/ model /configuration of the computer system as well as the date and time on which the recorded conversations were burnt on to a CD. If once this is done, the Trial Court may accept the certificate under Section 65(B)(4) of the Indian Evidence Act, 1872 and proceed in accordance with law."

4. As can be seen from the aforesaid order passed

by this court, the order passed by the Family Court accepting

the certificate under Section 65B(4) of the Evidence Act was

set aside and certain directions were issued to the

respondent to file a fresh certificate in relation to the IME

details of the mobile phone and other details.

5. In pursuance of the said order passed by this

court in W.P.No.202290/2022 dated 24.06.2024, the

respondent produced the certificate invoking Section 65B(4)

on 17.09.2024, to which the petitioner filed objections along

with an accompanying affidavit, pursuant to which the trial

Court proceeded to pass the impugned order accepting the

certificate by holding as under:

NC: 2024:KHC-K:7776

"The Hon'ble High Court in WP No.202290 of 2022 has directed the petitioner to file fresh certificate in support of the application filed by the petitioner under Sec.65 (A) and 65 (B) of Indian Evidence Act.

2. In compliance of the said order the petitioner produced the certificate with particulars.

3. The respondent objected for the said certificate and filed written objections by contending that, there is no authenticity and authority in the details furnished by the respondent. The certificate should be issued by the person holding responsible official position in relation to operation of relevant device and management of relevant device activities. It is also contended that, the certificate is not in accordance with the judgment reported in 2020(7) SCC 1 in the case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others. The proper procedure is not followed. Hence prayed to reject the application.

4. Heard both side.

5. The point that would arise for my consideration is as under:

1. Whether the certificate produced try the petitioner is acceptable?

2. What order?

6. My findings to the above points is as under

Point No.1: In the affirmative,

Point No.2: As per final order for the following:

7. Point No.1: The Hon'ble High court has directed the petitioner to file fresh certificate furnishing the IME details of the mobile phone on which the conversations were recorded and their respective dates, the network service provider as well as the dates when

system, the make/model/configuration of the computer system as well as the date and time on which the recorded conversations were burnt on to a CD. If once

NC: 2024:KHC-K:7776

this is done, the Trial court may accept the certificate under Section 65 (b) (4) of the Indian Evidence Act, 1872 and proceed in accordance with law.

8. The certificate is produced by the petitioner with IMEI number and the service provider name is mentioned as Vodaphone, Idea, BSNL, etc. The mobile number of the respondent and her relatives are mentioned. The ate and time of the call is also mentioned. The date of downloading is also mentioned. The petitioner has mentioned in para No.2 about the date and details of conversation and the date on which they were burnt on to a CD.

9. Therefore, the objection raised by the respondent, are not tenable. The certificate is in compliance of the order passed by the Honble High Court in WP No.202290 of 2022 and it is acceptable. Hence I answer in the affirmative to point No.1.

10. Point No.2: In view of above discussion, I proceed to pass following:

ORDER

The certificate produced by the petitioner under Sec.65 (B) (4) of Indian Evidence Act, is hereby accepted."

6. Aggrieved by the impugned order passed by the

trial court, the petitioner is before this court by way of the

present petition.

7. In addition to reiterating the various contentions

urged in the petition and referring to the material on record,

learned counsel for the petitioner submitted that the subject

telephonic conversations said to be contained in a compact

NC: 2024:KHC-K:7776

disc is burnt from the mobile phone of the respondent was

inadmissible in evidence in the absence of necessary

certificate having been issued by the service provider as

required under Section 65B(4) of the Indian Evidence Act. It

is contended that in the absence of a certificate by the

service provider, the self serving certificate submitted by the

respondent would not render the aforesaid telephonic

conversation admissible in evidence and consequently the

impugned order passed by the trial Court deserves to be set

aside.

8. Per contra, learned counsel for the respondent

would support the impugned order and submit that there is

no merit in the petition and the same is liable to be

dismissed.

9. Though several contentions have been urged by

both sides in support of their respective claims as regards

admissibility of the mobile phone of the respondent

purporting to contain the telephonic conversation between

the petitioner and respondent, the compact disc containing

the said conversation and the certificate under Section

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NC: 2024:KHC-K:7776

65B(4) of the Indian Evidence Act submitted by the

petitioner, without expressing any opinion on the

merits/demerits of the rival contentions, I deem it just and

appropriate to modify the impugned order and direct the trial

court to decide all questions relating to the subject

telephonic conversation, after hearing both sides at the time

of final disposal of the proceedings.

10. In the result I pass the following:

ORDER

(i) The petition is disposed of.

(ii) The impugned order dated 25.09.2024

passed in M.C.No.265/2018 is hereby

modified.

(iii) The family Court is directed to accept the

certificate issued by the respondent

tentatively for the limited and restricted

purpose of marking the CD and the mobile

phone in evidence and all questions