Admissibility of emails, messages and ledgers under Section 65B and the Bharatiya Sakshya Adhiniyam, and how to preserve records.
Most commercial dealings now leave an electronic trail: emails, messages, invoices generated by software, bank statements and ledgers held on a computer. In a recovery case, these records often make up the whole claim. They are admissible only if they are proved in the manner the law requires, and claims have failed because a party could not show how an email or a ledger entry was produced. This note explains the rules and how to prepare. It is general information, not advice on a particular case.
The statutory scheme
Under the Indian Evidence Act, 1872, an electronic record was admissible as a document only if the conditions of Section 65B were met, including a certificate identifying the record, describing how it was produced and signed by a person occupying a responsible position in relation to the device. The Supreme Court held in Anvar P.V. v. P.K. Basheer (2014) that the certificate was a condition of admissibility, and confirmed in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) that it is required, although the court may in some circumstances direct that it be produced at a later stage.
The Bharatiya Sakshya Adhiniyam, 2023, which replaced the Evidence Act with effect from 1 July 2024, treats electronic and digital records as documents (Section 61) and provides for their admissibility in Section 63, the successor of Section 65B. The certificate is prescribed in a schedule to the Act in two parts: one by the person in charge of the computer or communication device, and the other by an expert, and it includes the hash value of the record. For proceedings in which the old law applies, the earlier cases remain relevant, and a party should check which law governs its case.
What to preserve
- Emails. Preserve the message in its original electronic form, with the full header, the attachments and the server information, not only a printout or a forwarded copy.
- Messaging applications. Export the conversation, with the date and time stamps and the phone numbers, and preserve the device on which it was received.
- Accounting records. Keep the ledger in the software in which it was kept, with the audit trail, and retain the backup. A printout from the system will need the certificate to explain how it was generated.
- Bank statements. A copy certified under the Bankers' Books Evidence Act, 1891, with the certificate of the bank under Section 2A, is admissible without the further steps for an electronic record.
- Website and portal records. Capture the page with the date, the address and the capture method.
The certificate
The certificate should identify the electronic record, state the manner in which it was produced, describe the device and its operation, and certify that the device was working properly and that the information was regularly fed in the ordinary course of the activity. It should be signed by the person who has charge of the computer or the system, or the person who manages the relevant activity. Where the party relying on a record does not have the device, for example an email held by the other side, the party may need to ask the court to direct production.
Preparing for the case
- When a dispute arises, stop the automatic deletion of emails and messages that relate to it.
- Copy the records to a secure location and note who made the copy, and when.
- Obtain the certificate at the time, from a person who can speak to the system, and keep it with the record.
- Index the records by date and subject, so that the relevant ones can be produced with the plaint, as Order XI of the commercial court rules requires.
- For an important record, consider a forensic copy of the device that holds it, with a hash value.
Weight and authenticity
Admissibility is different from weight. The court will ask whether the record is genuine and whether it has been altered. A party that can show where the record was kept, who had access, and that it matches the other side's own documents has the stronger case. Records that match a bank statement, a delivery receipt or an admission in a letter carry far more than an isolated message.
The rules are technical and are applied strictly. The creditor who builds the evidence while the business is still operating, and not afterwards, loses fewer claims on procedure.
This note is general information on the law at the date of publication. It is not legal advice, and it should not be relied on without advice on the facts of a particular matter.
