A Note on Section 65B - Indian Evidence Act

Electronic Records as Evidence

The Indian Evidence Act prescribes the admissibility and the procedure as to how the veracity and the
value of evidence are gauged. With the advent of internet and technology where most of the
transactions and/or agreements are arrived between parties through the exchange of mails and the
necessary information are exchanged between the parties in the negotiation process or otherwise. The
ubiquitous and ever evolving use of internet inevitably necessitated the introduction of admissibility of
the digital evidence in the Indian Evidence Act.

The insertion of Section 65A and Section 65B under the head of admissibility of the electronics records
and as per Section 65 A, which is a special provision in itself, contemplates that the contents of the
electronic records may be proved in accordance with the provision of the Section 65B. Further, section
65 B stipulates that any information contained in an electronic records and printed on paper shall be
deemed to be a document and admissible in any proceeding without further proof of the original ( soft
copy ) if the conditions are met viz., that computer out put was produced by the computer which was
regularly used to store information or process information by the person having lawful control over the
use, and that further during that period the information was duly fed into the computer in usual
course of business and the computer was functioning properly during that period of time.

Affidavit in evidence before Court of the electronic records

A statement before Court on the electronic document retrieved viz., e-mail or other documents
retrieved from the computer system, may be admissible in evidence as a document, if the same is in
the form of an affidavit and on the followings lines viz., identifying the electronic record containing the
statement and describing the manner in which it was produced; further giving such particulars of any
device involved in the production of that electronic record as may be appropriate for the purpose of
showing that the electronic record was produced by a computer; dealing with any of the matters, to
which the conditions mentioned in Sub-section (2) relate, and purporting to be signed by a person
occupying a responsible official position in relation to the operation of the relevant device or the
management of the relevant activities (whichever is appropriate) shall be evidence of any matter
stated in the certificate; and for the purposes of this Sub-section it shall be sufficient for a matter to
be stated to the best of the knowledge and belief of the person stating it.

Draft Affidavit - Model

a. I state that I am an employee of ______________a company having its office at

_____________________________________.
b. I state that I was regularly involved in al the transactions of the Company and all e mails were
forwarded to the Plaintiff/ defendants are routed to Computer terminals in ___________ office, by
me. In fact, my name appears in almost all the email correspondence

c. I state that by virtue of my employment I was authorized to use the computer terminals in
Company office. Further, the computer terminals used by me were functioning normally at all
times. Further, since I was personally involved in the transaction, I in fact personally authored/saw
the email correspondence exchanged between the petitioners and the respondents
d. I hereby produce hard copies of the emails which represent the contract entered into between
the parties. The said emails are annexed hereto as Exhibit "A". I crave leave to refer to and rely
upon typed/clear copies of the same at the time of hearing, if necessary.

e. I confirm that the contents of the hard copies of the emails are identical to the emails
exchanged through the computer terminals operated by me. I further state and confirm that the
contents of the hard copies of the emails.

f. Accordingly, I am making this present affidavit to certify that the hard copies of the emails
annexed at Exhibit "A" to ___ hereto are a "true copy"/ reproduction of the electronic record which
was regularly fed into/transmitted through my computer terminal in Company's office in the
ordinary course of activities. I further state that at all times the computer terminals utilized by me
were operating properly and there is no distortion in the accuracy of the contents of the hard
copies of the emails.

g. The above affidavit, therefore, in the facts and circumstances of the case, is sufficient
compliance of Section 65B of the Evidence Act.

Section 65 B affidavit - Necessary ?

As per the recent decision the Apex Court in the case of State versus Navjot Sandhu held, while
examining Section 65 B, that even when an affidavit/certificate under Section 65B is not filed it would
not foreclose the Court from examining such evidence provided it complies with the requirements of
Section 63 and 65 of the Evidence Act.

But in our personal Court experience and in cases when there is an urgent requirement of enjoin the
other side, especially ex- parte injunctions on the first instance of hearing, the Plaintiff is advised to
file the affidavit under Section 65 B in support of all electronic documents in order to place before
hand all the necessary information and compliance before the Court as the Judge may checks the
strength of the documents at the first instance while passing any injunction orders, as sought by the
Plaintiff against the other side, and if electronic records are not supported by Section 65B affidavit
then the Court may even ask for the affidavit under Section 65B which may hamper the urgent
requirement to enjoin the other side from any possible damage to the subject matter of dispute.
 As the title of the post suggests, there is some complexity attached to the process of filing an
email or any electronic document in court and then relying upon it as evidence. Since the law of
evidence which is contained in the Indian Evidence Act, 1872 provides for certain conditions in
which electronic evidence can be produced in court and then relied upon as authentic the process
of taking a print of an e-mail and then filing it in court becomes a little complex. I anticipate this
is quite widespread now and I wanted to write on this for sometime to give some clarity on the
subject.

Firstly, I would like to draw a general caveat, though this post contains specific guidance
on the subject, it is not legal advise and it is merely some nuggets of information I am
sharing on the subject. Each case is different and calls into play a different set of facts
and law for which you should engage local legal counsel.

Secondly, this post may not be the best reading for a person who is not a lawyer as I
will be discussing the finer threads of evidence law which may not be generally
appealing. Having said that I am keeping this post as simple and direct as possible,
hoping it is of help to a broader set.

Section 65B
The Indian Evidence Act prescribes the admissibility and the procedure as to how the
veracity and the value of evidence are gauged. Originally passed in 1872 the enactment
has been kept relevant through frequent amendments and insertions. One such
amendment caused by the Information Technology Act, 2000 inserted a bunch of
sections relating to digital evidence.

The first is Section 65A which states that  the contents of electronic records may be
proved in evidence by the parties in accordance with the provisions of Section 65B.
Going further, Section 65B, sub clause 1 states that on the fulfillment of certain
conditions any information contained in an electronic record shall be deemed to be a
document and shall be admissible in evidence without further proof or production of the
originals. This means that a person filing the printout of an email in court can rely upon it
as an original without the need to actually file the original softcopy of it.

The conditions under which this may be done are contained under sub-clause 2 of
Section 65B which reads as follows:

65B(2). The conditions referred to in Sub-section (1) in respect of a computer output shall be the
following, namely:
 (a) the computer output containing the information was produced by the computer during the
period over which the computer was used regularly to store or process information for the
purposes of any activities regularly carried on over that period by the person having lawful
control over the use of the computer.

(b) During the said period, information of the kind contained in the electronic record or of the
kind from which the information so contained is derived was regularly fed into the computer in
the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not,
then in respect of any period in which it was not operating properly or was out operation during
that part of the period, was not such as to affect the electronic record or the accuracy of its
contents; and

(d) the information contained in the electronic record reproduces or is derived from such
information fed into the computer in the ordinary course of the said activities.

Requirements of an Affidavit
To demonstrate compliance with the requirements extracted above, a statement is
required to be made in court. This statement is nothing but an affidavit under Sec. 65B.
The requirements for this is contained under sub section 65B(4), that reads as under:

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this
section, a certificate doing any of the following things, that is to say,-
(a) identifying the electronic record containing the statement and describing the manner in which
it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as
may be appropriate for the purpose of showing that the electronic record was produced by a
computer;

(c) dealing with any of the matters to which the conditions mentioned in Sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official position in relation to
the operation of the relevant device or the management of the relevant activities (whichever is
appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this
Sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief
of the person stating it.
 A Model Affidavit
Though each affidavit brings into play its own unique facts, the requirements of Sec.
65B are well demonstrated by a reported decision of the Bombay High Court which may
serve as a good template. In the case of Ark Shipping Co. Ltd. vs Grt Shipmanagement
Pvt. Ltd. (2008 (1) ARBLR 317 Bom) the Hon’ble Court extracted a affidavit under Sec.
65B which is quoted in extenso below:

7. The petitioners, therefore, have filed an affidavit dated 3rd May, 2007 alongwith hard/ printed
copies of the print outs/ emails duly certified by the concerned officer/employees, which read as
under:
1. I state that I was employed in the chartering division of Sahi Oretrans (Pvt) Ltd. (hereinafter
for the sake of brevity referred to as Sahi), a company having its office at 30 Western India
House, 3rd Floor, Sir. P.M. Road, Mumbai 400 001. I state that Sahi acted as the ship broker in
respect of the charter-party concluded between the petitioners and respondents, abovenamed.

2. I state that being employed in the chartering division of Sahi, I was personally involved in the
transaction. I state that being ship brokers all emails were forwarded to the petitioners and the
respondents through computer terminals in Sahi’s office, by me. In fact, my name appears in
almost all the email correspondence.

3. I state that by virtue of my employment I was authorized to use the computer terminals in
Sahi’s office. Further, the computer terminals used by me were functioning normally at all times.
Further, since I was personally involved in the transaction, I in fact personally authored/saw the
email correspondence exchanged between the petitioners and the respondents.

4. I hereby produce hard copies of the emails which represent the contract entered into between
the parties. The said emails are annexed hereto as Exhibit “A”. I crave leave to refer to and rely
upon typed/clear copies of the same at the time of hearing, if necessary.

5. I confirm that the contents of the hard copies of the emails are identical to the emails
exchanged through the computer terminals operated by me. I further state and confirm that the
contents of the hard copies of the emails at Exhibit “A” are identical to the hard copies of the
emails filed before the arbitrator, a compilation of which I have perused.

6. Accordingly, I am making this present affidavit to certify that the hard copies of the emails
annexed at Exhibit “A” to “A4″ hereto are a “true copy”/ reproduction of the electronic record
which was regularly fed into/transmitted through my computer terminal in Sahi’s office in the
ordinary course of activities. I further state that at all times the computer terminals utilized by me
were operating properly and there is no distortion in the accuracy of the contents of the hard
copies of the emails.

8. The above affidavit, therefore, in the facts and circumstances of the case, is sufficient
compliance of Section 65B of the Evidence Act. The above hard copies/ print outs as taken out
from the computer, therefore, can be treated as certified copy of agreement for Arbitration, as
contemplated under the Arbitration Act-1996. These correspondence/ documents, therefore, as
contended by the petitioners, and as also relied by the Tribunal at Singapore, while passing
interim final award arising out of the disputes based upon this agreement, therefore, are in
compliance of the provisions. The office has also endorsed the remark “as Certified original print
out” as stated on oath may be treated as original after obtaining directions from the Court.

Is it really necessary ?
However, the requirement to file an affidavit under Sec. 65B is not absolute. The
Hon’ble Supreme Court, in the case of State v. Navjot Sandhu , when examining Section
65B, held that  even when an affidavit/certificate under Sec. 65B is not filed it would not
foreclose the Court from examining such evidence provided it complies with the
requirements of Section 63 and 65 of the Evidence Act (if you want to read more on the
requirements, please refer to Para 150 of the judgement).
Given the wiggle room provided by the Navjot Sidhu case, I anticipate that several courts
enforce their own local requirements for filing affidavits under Sec. 65B. Even a recent
post on the decision reached by the Hon’ble Bombay High Court in Vodafone Essar Ltd. Vs.
Raju Sud the court dispensed with the requirement under Sec. 65B.
Hence, if any lawyers are reading this I would request them to
share their experiences in relying on emails as evidence in arbitrations and litigations,
especially when these cases reach the stage of evidence.  As always, thoughts,
suggestions and brickbats are always welcome.