Monika Rahar

Chandigarh, April 19, 2022: While dealing with a case wherein an amount of Rs. 40,000 was withdrawn unscrupulously from the account of the complainant (an armed personnel), the Punjab and Haryana High Court has held that the evidence of the CCTV footage, which had been converted to a CD could not be read in evidence in the absence of the certificate under Section 65B(4) of the Indian Evidence Act.

The Bench of Justice Jasjit Singh Bedi referred to the hudgment of the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Others wherein overruling the law laid down in the case of Shafhi Mohd. Vs. State of Himachal Pradesh it was held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record. 

In light of the above legal position, acquitting the accused, the Court held, “ (…) the evidence of the CCTV footage, which has been converted to a CD … could not be read in evidence in the absence of the certificate under Section 65B(4) of the Evidence Act, which could easily have been furnished by a responsible officer of the SBI, Rewari, who was the custodian of the CCTV camera in the ATM room. Thus, the CCTV footage is inadmissible in evidence and cannot be used in the identification of the petitioner”

In this case, the complainant went to withdraw money from an ATM Machine and even after multiple attempts made at several ATM points, the ATM pin was not accepted. However, after some interval, the complainant received a message intimating withdrawal of Rs. 40,000/- from his account. Perturbed, the complainant called on the SBI toll free number and registered a complaint. Further, he requested for the registration of a zero FIR and a request was also made by him to the Bank authorities for providing video footage of the transaction of withdrawal. 

On the basis of above complaint, the investigation was started and the CCTV footage of the time of the incident was taken. Thereafter, the petitioner was arrested and he suffered a disclosure statement in pursuance to which Rs. 40,000/- was recovered. Though in his disclosure statement, the petitioner/convict stated that he along with his accomplice Sandeep committed the present offence but during investigation, it was found that alleged accomplice Sandeep was lodged in District Jail, Jhajjar when the concerned offence was committed. 

Eventually, the Trial Court convicted and sentenced the petitioner/convict. Before the Trial Court, the primary argument of the accused-petitioner (which was not accepted) was that in the absence of a certificate under Section 65B(4) of the Indian Evidence Act, the CCTV footage could not be admissible in evidence in light of the judgment in Shafhi Mohd. (Supra). Thereafter an appeal was filed before the Court of Additional District and Sessions Judge, Rewari and the same came to be dismissed. Hence, the present revision petition was filed assailing the orders of the Courts below. 

First if all, the case of the counsel for the petitioner was that there was a substantial delay between the occurrence and the FIR. He argued that the test identification parade of the petitioner/convict was not held and therefore, his identity was not established. He also made a legal submission that in the absence of a certificate issued under Section 65B(4) of the Indian Evidence Act, the contents of the CCTV footage of the ATM concerned could not have been read in evidence. He thus, argued that there was no legally admissible evidence against the petitioner/convict so as to convict him for the offence in question.

On the first argument of the Counsel, the Court opined that the undoubtedly, the complaint was made on February 23, 2016 but a perusal of the complaint would show that the complainant lodged a complaint with the Customer Care on January 28, 2016, which was also sent online to his home branch on January 29, 2016, which was subsequently forwarded to the SBI Banking Authority. From the documents on record, it was clearly established that immediately after the occurrence, the complainant approached the competent authority and furnished information about the wrongful withdrawal of Rs. 40,000/- from his account through the ATM. 

Therefore, the Court came to the conclusion that there was absolutely no delay in getting the FIR registered. 

On the second submission, the Court opined that undoubtedly, a test identification parade was not held but the Courts below held that it was not required as the CCTV footage was enough to prove the identity of the petitioner. 

The Court then went on to decide the issue of admissibility of the CCTV footage of the ATM without the requisite certificate under Section 65B(4) of the Indian Evidence Act. 

In this regard, the Court noted that the Trial Court and the Lower Appellate Court relied upon the judgment in Shafhi Mohd (supra) case to contend that the requirement of a certificate was purely procedural and could be relaxed by the Court in the interest of justice. However, the Court noted that what was not considered by the Courts below was para 14 of the judgment, as per which, it was stated that the requirement to furnish the certificate would apply only to a person, who was in a position to produce such certificate being in control of the device. 

Further, the Court opined that in the present case, the Clerk of SBI, Rewari or another officer could have easily provided the certificate in question as they were the custodians of the CCTV footage. 

IMportantly, the Court observed that the aforementioned judgment was specifically overruled by a Larger Bench of the Apex Court in Arjun Panditrao Khotkar (Supra) wherein it was held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record. 

From the above,it was expounded by Justice Bedi that the evidence of the CCTV footage, which was converted to a CD could not be read in evidence in the absence of the certificate under Section 65B(4) of the Evidence Act, which, the Court added, could easily have been furnished by a responsible officer of the SBI, Rewari, who was the custodian of the CCTV camera in the ATM room. Thus, the CCTV footage was held to be inadmissible in evidence and the Court opined that it could not be used in the identification of the petitioner.

Also, the Court pointed out that the finding of the Courts that the petitioner could not prove that he was elsewhere thereby inculpating him was contrary to the settled position of law which is to the effect that the prosecution is to stands on its own legs and cannot take advantage of the purported weakness of the defence.

Therefore, in the absence of the proper identification of the petitioner, the Court held that there was no evidence to connect the petitioner with the commission of the offence alleged. 

In view of the above, the present revision petition was allowed and the petitioner was acquitted.

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