ZEENIE GILL SANDHU Vs. ASHOK KUMAR GOYAL

JUDGEMENT

(1.) This order will dispose of the afore titled two petitions. CRM-M-3775-2024 is filed by the petitioner/accused against order dtd. 19/9/2023 (Annexure P-4) passed by the Court of Judicial Magistrate, 1st Class, Sangrur whereby an application filed by the respondent/complainant under Sec. 311 of Cr.P.C. has been allowed. CRM-M-3771-2024 is filed by the petitioner against the order dtd. 22/12/2023 passed by the Court of Judicial Magistrate, 1st Class, Sangrur whereby an application filed by the respondent/complainant under Sec. 65 of the Evidence Act has been allowed.

(2.) Brief facts of the case are that the respondent/complainant filed criminal complaint under Sec. 138 of Negotiable Instruments Act against the petitioner/accused alleging that the petitioner and her husband took loan of Rs.24.5 lakh from the respondent, out of which, they repaid Rs.15.00 lakh to the respondent and in order to discharge her liability, the petitioner issued cheque worth Rs.9.44 lakh in favour of the respondent but the same was dishonoured with remarks, "Funds Insufficient". Then, the respondent sent statutory notice under Sec. 138 of Negotiable Instruments Act and thereafter, filed private criminal complaint wherein the petitioner was summoned as accused and notice of accusation was served to the petitioner and she did not plead guilty. The respondent filed an application under Sec. 311 of Cr.P.C. to prove and produce screen shots of the messages sent by the husband of the petitioner from his mobile phone No.98787-16418 to the complainant, when the criminal complaint was fixed for cross-examination of the respondent and his attorney both of whom were already examined-inchief. The said application was contested by the petitioner. However, the learned trial Court allowed the said application vide order dtd. 19/9/2023 in the following terms : -

(3.) Thereafter, the respondent filed another application under Sec. 65 of the Evidence Act to prove copies of the aforesaid screen shots of the whatsapp messages sent by the husband of the petitioner to the complainant by leading secondary evidence supported by certificate issued under Sec. 65-B of the Evidence Act as the original mobile phone wherein the aforesaid whatsapp messages were received is in possession of the complainant. The said application was also contested by the petitioner. The learned trial Court allowed the said application vide order dtd. 22/12/2023 in the following terms : - "Learned counsel for the complainant has moved the instant application for allowing him to tender the screen shots of the chats along with certificate under Sec. 65-B of the Indian Evidence Act into complainant evidence. Per-contra, learned counsel for the accused has vehemently argued that application under Sec. 65 of Indian Evidence Act, is not maintainable. Perusal of the file reveals that earlier complainant was permitted to prove on record the alleged screen shots in accordance with law vide application under sec. 311 Cr.P.C. which was allowed vide order dtd. 19/9/2023. Further, nomenclature of the provision cannot be permitted to subvert the ends of justice, especially when the contents of the application suggests otherwise. It is the substantial justice which shall be adhered to whenever pitted against technicalities of the law. In the instant case complainant has already been permitted to prove the screen shots in accordance with law. Therefore, complainant is hereby further permitted to tender into his evidence the screen shots in compliance of Sec. 65 B of Indian Evidence Act, along with the earlier affidavit. Application stands disposed accordingly. Case stands adjourned to 10/1/2024 for complainant evidence."