Evidence of Electronic Records : It is pertinent to note that Hon’ble Apex Court in Anwar P.V v. P.K Basheer and others 2014 SCC online SC 732 partly overruled the earlier decision of the Supreme Court on the procedure to prove electronic record(s) in State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru on 04.08.2005 holding that Section 65B is a specific provision relating to the admissibility of electronic record(s) and, therefore, production of a certificate under Section 65B is mandatory.
It was held in Anvar P.V v. P.K Basheer and others 2014 SCC online SC 732:
- Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B.
- Section 65B deals with the admissibility of the electronic record.
- The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer.
- It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub- Section (2) are satisfied, without further proof or production of the original.
- The very admissibility of such a document, i.e, electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2).
- It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief.
- Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence.
- All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence.
- Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
- Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A – opinion of examiner of electronic evidence.
- The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India.
# Evidence of Account Books
It is settled principle of law that no legal sanctity is attached with private extracts of account books, when the original account books are not filed into the Court. The Hon’ble Supreme Court in Ishwar Das Jain v. Sohan Lal, AIR 2000 SC 426 held:-
- It will be noticed that sanctity is attached in the law of evidence to books of account if the books are indeed “account books i.e. in original and if they show, on their face, that they are kept in the “regular course of business”, Such sanctity, in our opinion, cannot attach to private extracts of alleged account books where the original accounts are not filed into Court.
- This is because, from the extracts, it cannot be discovered whether the accounts are kept in the regular course of business or if there are any interpolations or whether the interpolations are in a different ink or whether the accounts are in the form of a book with continuous page- numbering.
- Hence, if the original books have not been produced, it is not possible to know whether the entries relating to payment of rent are entries made in the regular course of business.
Further, it is settled law that mere entries in the Statement of Account are not enough to fasten a person with a liability. The same was held by the Hon’ble Apex Court in CBI v. V.C. Shukla, (1998) 3 SCC 410 while considering scope of section 34 of Indian Evidence Act 1872 (in short “IEA”).
- Section 3 declares that a fact is relevant to another when it is connected with the other in any of the ways referred to in the provisions of the Act relating to the relevancy of facts; and those provisions are to be found in Sections 6 to 55 appearing in Chapter II.
- Section 5, with which Chapter II opens, expressly provides that evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and the facts declared relevant in the aforesaid sections, and of no others.
Section 34 of the Act reads as under:
# 34. Entries in books of account when relevant
Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.
From a plain reading of the section it is manifest that to make an entry relevant thereunder it must be shown that it has been made in a book, that book is a book of account and that book of account has been regularly kept in the course of business.
From the above section it is also manifest that even if the above requirements are fulfilled and the entry becomes admissible as relevant evidence, still, the statement made therein shall not alone be sufficient evidence to charge any person with liability.
It is thus seen that while the first part of the section speaks of the relevancy of the entry as evidence, the second part speaks, in a negative way, of its evidentiary value for charging a person with a liability.
- The rationale behind admissibility of parties’ books of account as evidence is that the regularity of habit, the difficulty of falsification and the fair certainty of ultimate detection give them in a sufficient degree a probability of trustworthiness (Wigmore on Evidence, § 1546).
- Since, however, an element of self-interest and partisanship of the entrant to make a person — behind whose back and without whose knowledge the entry is made — liable cannot be ruled out the additional safeguard of insistence upon other independent evidence to fasten him with such liability, has been provided for in Section 34 by incorporating the words “such statements shall not alone be sufficient to charge any person with liability”.
The probative value of the liability created by an entry in books of account came up for consideration in Chandradhar Goswami v. Gauhati Bank Ltd. [AIR 1967 SC 1058 : (1967) 1 SCR 898 : 37 Comp Cas 108].
# Copy of a document
In Smt.J.Yashoda v. K.Shobha Rani AIR 2007 SC 1721, it was held that copy of a document can be received as evidence under the head of secondary evidence only when the copies made from or compared with the original are certified copies or such other documents as enumerated in Section 63 of the Indian Evidence Act.
It was further held that secondary evidence as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who fails to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents.
Secondary evidence of the contents of a document cannot be admitted without non production of the original being first accounted for in such a manner as to bring it within one or other condition as provided for in this section.
Further, in Ms. Arati Bhargava Vs. Shri Kavi Kumar Bhargava AIR 1999 Delhi 280, where it was held that genuineness of the photocopies cannot be guaranteed and unless there is evidence that someone had compared the photocopies with the original or had obtained the photocopies from the original, photocopies would be inadmissible in evidence in absence of the original.
Moreover, regarding inadmissibility of photocopies it was held in United India Insurance Co. Ltd v. Anbari and Ors (2001) SCC (Cri) 1501 that production of the photocopy of driving license was not sufficient to prove that the driver had a valid license when it was challenged and hence its genuineness was not admitted.
- The photocopies of the invoices cannot qualify as primary evidence and none of the conditions of Section 65 IEA have been fulfilled and thus, photocopy of these invoices/bills cannot be considered in evidence.