Puneet Prakash Vs Suresh Kumar Singhal…Evidence under Section 65B.. unacceptable judgement

The law regarding Section 65B of Indian Evidence Act 1872 was laid down on 17th October 2000 when the amendment was passed after Information Technology Act 2000 was notified. However the lack of proper understanding of the purpose of the section continues till date.

The judgement in the case of Puneet Prakash Vs Suresh Kumar Singhal (RFA 744/2016) in the High Court of New Delhi (Judgement reserved on 30th May 2018 and published on 13th July 2018) is yet another judgement where the Judge of the day has used his discretion to interpret the law as he deems fit.

The judgement was on account of an appeal filed against the earlier judgement of the Trial Court dated 18th August 2015 from a lower court in which they were the plaintiffs. The then dispute was on an incident which occured on 3rd January 2005 in which certain photographs were taken and became evidence in the case. The main dispute was regarding a rental agreement dating back to 1994 in which the grand mother of the appellants was the owner and the defendant was the tenant who had rented the property way back in 1975 from the erstwhile owner of the property from which the grand mother of the appellants had purchased it.  The  property consisted of a house along with two tenanted shops and the defendant was the tenant of one of the shops which consisted of two portions one of which was a store/office. The dispute was that the rent of Rs 3000/- pm as agreed was not paid and also that on 3rd January 2oo5, the appellants came to know that the defendants had illegally tresspased into a storeroom at the back of the shop by breaking the wall. Consequently, Puneet Prakash (appellants of this case and plaintiffs) filed an “Eviction Petition” before the Assistant Rent Controller (ARC) Delhi (which is stated to be pending). It is interesting to note that the property allegedly broken into was not part of the tenanted portion but the plaintiffs claimed the relief from the ARC for decree for possession of one portion of the property which was in the custody of the defendants and also increase the rent for another portion.

The evidence presented included a site plan showing the disputed properties and a photograph taken on a digital camera showing a small gate in the back wall of the store (which was broken into allegedly). The photograph was taken by  Varun Prakash (brother of Puneeth Prakash the plaintiff)  who was the principal witness 1. (PW1). The defendants claimed that there was no such gate and there was a wall in its place and the photograph was manipulated.

The Trial Court had dismissed the evidence and concluded that even the rent deed was not properly established as it was only a photo copy. Even the will executed by the grandmother of the plaintiffs was not considered as established. Incidentally, while speaking of the site plan and the photograph, going by a siteplan filed with the eviction petition, concluded that there was no gate at the rear of the store as claimed by the plaintiff and also refused to consider the photographs produced as evidence on the basis of the Anvar P.V. Vs P.K. Basheer (2014) 10 SCC 473. The trial court also held that the suit was barred by limitation.

During the appeal it was argued that there was a separate entrance to the store on the back of the shop which had been closed by the defendants. The plaintiffs had produced one picture during the Rent Controller proceedings which showed no gate but now produced an earlier photograph which showed the gate as existing prior to the date of the document produced for the eviction petition before the rent controller.

From the above description it is clear that this is a typical case of a rent dispute where the owner is aggrieved because of the low rent etc and the tenant claims rights by possession for over 33 years.

Justice Pratibha M Singh in her judgement has however taken a view that over turned the trial court order and allowed the appeal. In the process the Judgement passes its own interpretation of Section 65B which needs to be questioned. The judgement also ignores several other established principles which together with the ruling on Section 65B indicates that the judgement is perhaps flawed on more than one ground. We shall however restrict ourselves to the discussion on Section 65B.

The judgement makes the following statements.

“..these photographs are disputed by the Defendant on the ground that these photographs are digital photographs and were not proved in accordance with law. The Trial Court has held that the photographs having not been proved as per the dictum of the Supreme Court in Anvar vs Basheer (supra), cannot be taken in evidence. The said objection is not tenable inasmuch as the objection raised is that the negatives in respect of these photographs have not been placed on record. It is a matter of which judicial notice ought to be taken that digital photographs no longer have negatives, as in olden times. PW-1 has clearly stated in his affidavit that the photographs were taken on a digital camera. The relevant portion of his affidavit is set out below: –

“The photographs taken on digital camera showing small gate in the back wall of the
small store are Ex.PW-1/9 (colly).”

(Ed: Colly is the short form for the word collectively. It denotes that there are more than one document in the particular annexure.)

“In his cross-examination, this evidence is not impeached. He asserts in his cross-examination is as under

“The photographs Ex.PWl/9 (colly) were taken by me and got the said photographs developed from one shop at Kalka Ji but I do not remember the name of the said shop. I do not remember as to how many photographs are developed by me from the said shop at that time. I might have obtained cash memo for developing of the photographs from the said shop. I do not remember the amount paid by me for developing charges. It is wrong to suggest that Ex.PWl/9 (colly) are manipulated and are not of the property in dispute.”

He asserted that the photographs were taken by him personally and he got them developed. The Defendant has tried to confuse the issue by relying upon PW-1’s cross-examination in respect of Shop No.2 for which PW-1 stated that there was no gate between the store shown in black colour and Shop No.2. This is not to be confused with the shop in issue which is Shop No.1 and the store behind it, which is the suit property. The Defendant did not produce any photographs to show that the position on the spot is different than what is shown in Exhibit PW-1/9 (colly).

In his  cross examination, DW-1 merely denies the existence of the door/gate as shown in Exhibit PW-1/9 (colly).

Insofar as proving of the photographs under Section 65B of the Indian Evidence Act (hereinafter, Evidence Act) is concerned, when photographs are taken digitally and the person taking the photographs himself has deposed in the Court, his statement that he got the photographs developed himself is sufficient and satisfy the requirements of Section 65B of the Evidence Act.

Section 65B of the Evidence Act is not to be applied mechanically. A digital photograph which is proved constitutes electronic evidence, which is admissible. The Defendant has not filed any other photographs to show or establish that the position on spot is different from what is depicted.

Recently in Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801 the Supreme Court held as under:

“29. The applicability of procedural requirement under Section 65-B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded.

In such case, procedure under the said sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in the absence of certificate under Section 65-B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate is not always mandatory.

30. Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced.

Such party cannot be required to produce certificate under Section 65-B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be  relaxed by the court wherever interest of justice so justifies.” 

The Plaintiffs having deposed that he took the photographs himself, got them developed and filed them in the Court, the non-filing of negatives cannot be a ground to reject them, especially since they are digital photographs. Thus, in the facts of the present case, the photographs are taken to be proved in accordance with law.

The above conclusion arrived in the judgement reflects an arbitrary interpretation of the law and deserves to be challenged.

The judgement records that in the case of digital documents, there is no “negatives” but accepts the contention of the witness that he himself “Developed” the photographs. The photographer in this case is the plaintiff himself and had a vested interest and hence the possibility of manipulation should be presumed.

Hence this is a case where the procedures of Section 65B(4) should have been strictly interpreted and there was no scope for relaxation except giving a room for speculation that the judgement is not based on facts and principles of justice.

In order to justify the upholding of the appeal and accept the digital evidence produced by a party with vested interest, the Court has taken refuge under the Shafhi Mohammad judgement  which itself was a faulty judgement in which a two member bench over ruled an earlier three member judgement using an SLP as an excuse.

The witness claims to have taken the pictures himself and also “Developed” it himself. Even according to the Shafhi Mohammad judgement, he should have then produced the original camera and the storage device inside the camera. The Judge seems to have not raised this requirement. Then the witness says that he does not remember where it was developed etc and prevented further evidence to be presented.

Assuming that the digital photographs were processed into a printed photograph as it appears to be the case in this process, the digital process involves conversion of the digital file into a “negative” and then printing the “negative” into a positive. If this was the process used, then there should be a negative.

If the digital file was directly fed into a printer and printed out on an inkjet type of printer, then it is a digital printing process and the photograph is a “Computer Output” as per Section 65B of Indian Evidence Act 1872 and by virtue of Section 65A of the Act, can be accepted only on the production of a section 65B certificate by the person who converted the digital bytes into a “Computer Output” in the form of a photo.

The judgement is therefore completely arbitrary and fallacious.

It appears that in trying to find justice to what could be a rental dispute  the High Court where the evidence seemed to be heavily loaded against the appellant, the High Court has over stepped its limits and passed an order justifying the presentation of digital evidence against the provisions of the law and the rule laid down by the Supreme Court in the P. V.Anvar Vs P.K. Basheer case.

As long as such judgements can be brought out of our Courts, the justification for strict compliance of Section 65B(4) actually increases.

I hope this verdict is over turned quickly in a further appeal.

Naavi

Print Friendly, PDF & Email
Posted in Cyber Law | Tagged , , , | Leave a comment

Here is the identity of the suspected fraud agent. No more excuses for the Police to ignore

This is in continuation of my two earlier articles titled

“A Suspected fraud in the names of Dr Jitendra Singh and the President of India… Who Cares?” and

“Here is the Proof of Fraud. Will it still be ignored?”.

I had already indicated a Delhi address in the document revealed in the previous article.  Now I place before the public another document that exposes some names in Chennai as people who are involved in the chain of this scam representing a suspected fraud to impersonate the President of India, Union Minister Dr Jitendra Singh as well as former Chief Justice of India Mr R.M Lodha .

The offence also involves possibly five forgeries, which includes the signatures of the above impersonated persons and that of Nilam Sawhney, Secretary of the office of CVC and a Trade Mark officer, Mr O.P.Gupta of Mumbai Trademark office.

It is now time for Chennai Police to act and continue this investigation.

I request Ms S.P. Lavanya in charge of the Cyber Crime Cell to take up the investigation suo moto and bring the culprits to justice. 

There are two addresses in Chennai viz., No 44A, 18th Avenue, Ashok Nagar, Chennai 600083 as well as No 34, swathi complex, 2nd floor, Venkata Narayana Road, Nandanam, Chennai 600035.

There is a “Registration Number” in the letterhead (shown in the previous article) which could be a registration of a society under the Tamil Nadu Societies Registration Act which also can provide some lead just like the Trademark registration number mentioned in the previous article which has confirmed the fraud.

There is a suspected forged e-mail sent in the name of R.M. Lodha and  an IP address to follow which may even provide a mobile identity of the forger if investigated.

But in view of the address and landline number itself being available in the enclosed document, the IP address may not be required except to prove that the e-mail address of R M Lodha is being operated from a Chennai IP address and constitutes another proof of impersonation through a fraudulent G mail address registered in the name of rmlodha.justice@gmail.com

I do recognize that the persons indicated in the enclosed document may themselves be not fully aware of the root of the scam and can turn out to be the proverbial “Mules” themselves. But investigating through them may be required to find out the central conspirators.

I request these persons whose names are visible in the document not to panic and if they are innocent, they should themselves approach the Police and initiate investigation to absolve themselves and help the authorities to  find the real culprits. They should preserve whatever evidence they presently have with them to assist the Police.

Chennai Police has to their credit the first Cyber Crime conviction in India (Suhas Katti case) and further many more successes in the Credit Card fraud cases. Now here is an opportunity to bust a major National racket. I wish they take up this challenge and continue the investigation to the logical end.

If properly pursued, we donot know what surprises may be in store. This may reveal lot more than an attempted advance fee fraud and bust a national cyber crime syndicate.

The question is,

“Are We Serious in nipping the Cyber Crimes in the bud?” or

“Are we happy in letting it grow into a major scam in which several innocent persons lose their money before we start investigating?

Chennai Police have to make the choice.

Naavi

Print Friendly, PDF & Email
Posted in Cyber Law | Tagged , , , , , , , | 1 Comment

Here is the Proof of Fraud. Will it still be ignored?

Yesterday, I had published a post about a fraud using the names of Mr Jitendra Singh, Union Minister and Mr Ram Nath Kovind, the President of India besides Mr R.M.Lodha, former Chief Justice, PMO and CVC.

Last Saturday and later I had contacted the offices of these entities through available e-mail and alerted them about the potential fraud and sought their reaction. I had also filed a complaint on the PMO website. But so far I have not received any information about any remedial action taken.

This apathy is the biggest challenge to Cyber Security since Government machinery including Police who should have acted at the hint of the fraud donot start thinking until a major crisis hits them. Media most of the time are busy on other issues and donot always follow such frauds when it is yet to become a sensational news.

I now provide here the proof why the President’s name, Jitendra Singh’s name was used for a fraud which has already been rolled out. There could be some victims already who may legitimately claim that they were misled because of the names used by the fraudster.

The two letters indicated in my previous articles were accompanied by a Trade Mark Registration form to build credibility and ended up with an offer to appoint people to various designations in the proposed organization called Anti Corruption and Anti Crime Wing of India if they pay some membership fees.

The fee structure proposed was as follows.

The fees varied from Rs 1200/- for the ordinary member of public to Rs 1 lakh for the office bearer-State President and was proposed as renewable every 2 years. I was told that the membership fee is collected for meeting he expenses and the office bearers would be privileged to have boards on their Cars which will provide status and free access across toll booths.

The fee structure was a give away that it is like an “Advance Fee Fraud”.

There were two other interesting documents provided to substantiate the authenticity of the organization namely a trademark registration and a CVC certificate reproduced below.

There was also a letterhead which indicated a “Registration Number” 174/2017

The registration looked like that of a Society. The address of the head office was given as “Lok Ayoktha” building in Pahar ganj where as “Lok Ayukta” is situated elsewhere.

The trademark registration was done in Mumbai where as the two addresses available for the offices were for Chennai and Delhi.

It was the trademark registration certificate that raised my doubts first since the class of registration was 25 which was for “Clothing”. Also there was a difference in the name and the logo in the certificate.

I asked for clarification from the IP office in Mumbai but did not get an immediate reply. But one of my friends was able to get the copy of the trademark certificate which corresponded to the number 2825274 which is reproduced below.

This has been issued to one Mr Najappa of Attibele village for a trademark of “Smile Sparrows”. Mr Najappa appears to be in the business of Readymade Garments.

I have even more information which I have collected in identifying the fraudsters which the Police can use if they want to investigate further.

Now this scam which tries to get members for the Anti Corruption crusade at Rs 1200/- per person in different villages, towns etc besides the intermediaries who opt to become office bearers at higher costs used the identity of the President, the Union Minister, a Trademark officer, The CVC, a Trademark applicant and a Trade mark agent.

All these persons would primafacie be liable for lending their identity for the commission of the fraud though I know that they are innocent bystanders. But what I donot like is that the President, the Union Minister, CVC, PMO and Trademark office were negligent in not responding to my alert and if I decide to stay quiet, they would be allowing their names to be used further for cheating the public.

This apathy, ignorance or arrogance is what needs to be flagged for correction. If we donot wake up even when some body tries to wake us up, then we cannot claim the defence of  innocence.

It would be appropriate if the President’s secretariat as well as Mr Jitendra Singh’s secretariat as well as the others issue a public apology for not quickly responding to the alerts sent by me.

Even if they had not recognized the importance of the e-mails I had sent earlier, my article yesterday should have been noticed by the IB and brought to the attention of the concerned persons who ought to have responded yesterday itself to counter the involvement of these state functionaries in the attempted scam.

I hope at least this article will make them realize the need to be responsive to such security incidents reported in the public medium such as these blogs.

We often worry about “Fake News”. But it is necessary for the authorities to realize that some times, genuine news also comes from the web and ignoring them is fraught with as much risk as believing in fake news.

Let’s see if I get any response from any of the authorities.

I wish any of the victims involved in the scam which might have just started file a complaint with Police either at Chennai or Bangalore or Delhi or Mumbai where victims are likely to be spread out so that proper investigation can be taken up.

Naavi

Print Friendly, PDF & Email
Posted in Cyber Law | 2 Comments

A Suspected fraud in the names of Dr Jitendra Singh and the President of India… Who Cares?

Last week, a whistle blower brought to my attention that a certain document was in circulation stating

a) An Organization by name Anti Corruption and Anti Crime wing of India operating from Delhi and Chennai for which Former Chief Justice R.M.Lodha has been appointed as the President.

b) A Letter purportedly signed by the President of India namely Shri Ram Nath Kovind has been produced. This is dated 11.05.2018

c) A letter purported to have been signed by Dr Jitendra Singh,  the MOS attached to PMO dated 10th May 2018 has also been enclosed confirming the appointment from 7th May 2018.

Considering some of the other documents that I came across with these two letters, I have a suspicion that both the above two letters are forged.

I have called for confirmation from the offices of both the President of India as well as the Minister and it appears that they have other priorities.

I am however concerned that these fake letters are accompanying a request for mobilization of a membership which indicates a potential all India financial scam.

Several years ago, I had pointed out a fraud in the name of a website www.cgtmse-govt.in and despite the efforts to alert the public many lost money. It was only when a complaint from a person who had lost Rs 26 lakhs in the scam was resolved by the Adjudicator of Chattisgarh that the fraud came to the notice of the public.

It would be better if the suspected fraud indicated in the name of the Anti Corruption and Anti Crime wing is investigated immediately and we know if it is genuine or fraudulent.

From the various documents that accompany the above two letters which I will release in due course, it is more or less confirmed in my mind that this is a fraudulent money raising scheme.

I wish the Cyber Crime police in Delhi, Mumbai and Chennai or CBI itself takes immediate notice of this report and initiate action.

If the investigators are interested, they can contact me for more information. In the meantime, I caution every member of the public who may receive requests for contribution to this activity to refrain from making any payment and wait for further clarifications that we may be able to provide in due course.

I was holding back this publication for nearly a week expecting that some action can be initiated by the investigators before the news is in public domain. But I think that no body is really interested or it will take a long time for the authorities to respond and hence I am publishing it here.

Naavi

Print Friendly, PDF & Email
Posted in Cyber Law | 1 Comment

We need to Protect Mr Modi from Drone Attacks

The explosion of Drones during a military parade in Venezuela which was being addressed by the President Nicolas Maduro who recently won a closely contested election raises an alarm on the risks posed by Drones.

The “Quadcopters” as they are called with four rotors are capable of flying for over 20 minutes and operated from a mile away and cost less than $1000 online. Already militant groups of the ISIS have used such drones to drop mini bombs or crash into targetted structures. (refer here)

What the incident highlights is that a risk of this type can be expected to arise in India where there are terrorist groups supported by opposition political parties who are targeting to assassinate Mr Modi before the next Loksabha elections. For them these Drones are an easy tool.

We need to therefore flag this risk and take suitable corrective actions. The ball is in the court of technology experts and Information Security Experts in particular.

To start with, possession and flying of Drones must be subject to strict licensing process as stringent or more on Gun licensing.

Permissions must be restricted to the use of specific frequency of communication which could be monitored and blocked if required so that “Licensed drones are not used for attacks”.

This still leaves the “Unlicensed Drones” as a risk which need to be jammed and shot down like an alien aircraft if seen intruding into security zones. Perhaps we need to declare a radius of a mile around a suspected target as a “Risk Zone” and shoot down drones if they are seen flying around. Any operation of Drones for security purpose or for permitted surveillance or photography has to be strictly under a licensed bandwidth of communication and watched with hawk eyes.

The security of the Super  VIPs like Mr Modi (not to be extended to all Tom Dick and Harry VIPs) should include sharp shooters watching the skies who could bring down the drones beyond say 100 metres  from the VIP.

Probably this will mitigate the risk but does not eliminate attacks where chemical weapons may be used.

This means that Modi security should include availability of an oxygen mask which may be immediately deployed in case a drone explodes or shot down in the vicinity.

Will the Government of India take note and initiate necessary action?

Naavi

 

Print Friendly, PDF & Email
Posted in Cyber Law | Leave a comment

Data Privacy in the Indian Scenario

Indian Academy of Data Protection Professionals is conducting a web based round table on Personal Data Protection Act 2018 to provide a preliminary exposure of the proposed law to its members.

This initiative is intended to be a movement of the Data Protection Professionals in India to create a body of themselves, for their empowerment through various activities.

The formal membership of the Academy is yet to be opened up.

On the occasion of this round table and to serve as a background material, Naavi is sharing a presentation made by him on 28th July 2018 at Chennai immediately after the official release of the draft of the Personal Data Protection Act 2018 on July 27, 2018 by Justice Srikrishna Committee in Delhi. (Copy of the presentation is available here)

Naavi

Print Friendly, PDF & Email
Posted in Cyber Law | Leave a comment