Most of our communication (commercial/professional or personal) these days is carried out in electronic form, either through email, whatsapp, BBM. A record of these chats/messages is called in legal parlance an ‘electronic record’. This electronic record may be required to be used in legal cases as evidence. Most apt illustrations would be :-
i) a contract entered into on the internet through email exchanges in a contractual suit or accounts/ledger statement prepared in an electronic form;
ii) Abusive/defamatory messages posted on the internet in a defamation suit;
iii) Spouse messages in a divorce/cruelty/adultery suit; and many more.
Since the computer systems in which this information is stored or generated cannot be brought before the court, a printout is usually led in evidence in cases. Now such a printout per se is not documentary evidence of the electronic record and is inadmissible unless accompanied with a certificate u/s 65B of the Indian Evidence Act. This certificate is normally given in the form of an affidavit by the person who operates the computer in question and basically contains statements to the effect that the computer was used by only authorised person and there has been no tampering/manipulation of the information and the printout corresponds to the electronic record and nothing has been added or subtracted therefrom.
A standard affidavit, which contains all the basic pre-requisites of Section 65B Indian Evidence Act, may be as follows :- (taken from a Bombay High Court case)
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.
These is what a standard Certificate u/s 65B should contain, in order to render the electronic record admissible in a court of law. However the worth of the evidence and it’s value in the decision of the case would be examined by the court in the specific light of the facts of the case. It has to be remembered that the affidavit is nothing but an attempt to preserve the integrity of the electronic record and to rule out manipulation. Therefore if in a case even if the affidavit is not led in evidence, still if the conditions of Section 65B viz as to the proper use of computer and non tampering is proved, the evidence can still be admissible. However while proving a printout/message/email/chat – one should file an affidavit in the above terms in order to render it admissible in court.