Apar Gupta
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;
© 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;
© 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.