How to rely on & prove an email, whatsapp message, blog or facebook chat in a court case ?

Are you in a fix as to how to rely on and prove in evidence an electronic contract – email/whatsapp message or a facebook chat ? ….Read on
lawemail

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)

Affidavit

 

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.

How good is the ‘security cheque’ defence in 138/cheque bounce cases ?

Q. I had given the cheque as security, however, the same has been filled-in and presented by my friend/partner. How do I defend this ? 

This is still a grey area as per law. The Supreme Court has in a number of cases ruled that if the cheque is given in anticipation of receipt of goods and the goods are not delivered. The security cheque cannot be presented since it is not given for an existing liability, but a liability that is to arise in future. However, in other cases of deferred payment, or where goods are merely not upto specification, this defence has not been too successful. The Delhi High Court in a recent case has held that, in such cases, the liability is to be seen on the date of presentation of cheque and not the handing over of the cheque. However, even in those cases, there might be valid defences like goods being not upto specification (provided prompt notice is given in this regard), and liability being less than the security cheque amount.

Over implication of all the directors in the company/partners in a firm 

Q. I was a partner/director in a company, but had no role to play in the discharge of it’s functions, can I be held liable if a cheque issued by the company is dishonoured ?

A. The answer is no. If you are not the Managing director/partner of the company/firm and had no role to play in the day to day functioning of the company at the time of dishonour of the cheque, you cannot be prosecuted. 

The cliched defence of ‘Blank cheque’ in cheque dishonor cases ?

Q.  I had given a blank signed cheque to my friend/partner who is now misusing the cheque against me. Is this a good defence ? 

Ans. The answer is yes and no both. The general position is that a person who has given a blank cheque can be attributed to having given the authority to the person to whom the cheque is given (in legal parlance called ‘payee’) to fill the amount on the cheque. Having said that, the accused can always argue and prove that the authority was only upto a certain amount and not beyond. This can be proved by leading own evidence or cross examination of the complainant or otherwise throwing doubt on the liability. The accused can demonstrate to the court that the amount filled-in on the cheque cannot be the amount owed by the accused by any stretch of imagination. This can be done by demonstrating the financial incapacity of the complainant etc.

How to fight a false 498A, 406, dowry case?

This article endeavours to educate the sufferers of a false 498a/dowry case on how to defend a false case, it also tries to help thousands of families in and around India  who are on the brink of facing such false cases on successfully pre-empting or guarding against such false cases. 

“For men in India marriage is a lottery but you can’t tear up your ticket even if you lose” and it’s not just you who would have to live with the lost lottery but your entire family may have to suffer at the hands of a system so grossly skewed in favour of women.

Marriages may fall apart for a lot of reasons, temperamental issues, compatibility problems, but does that make you an offender in the eyes of law? Yes it does, your estranged wife in order to have her way in arm-twisting you may implicate you and your family in end number of false cases, 498A being the foremost.

498A penalizes cruelty for dowry, almost always comes along with S.406 Allegations which basically penalize the criminal breach of trust, when your wife’s articles are entrusted to you and you fail to return them back – misappropriate them or convert them to own use – you are criminally liable !. By aid of S.34 of the Indian Penal Code – your family/relatives can be held liable for the same if they share the common intention with you.

Now if you think that you have a wife who can potentially do this for money or the kicks that her ego gets out of the same or pure vengeance then you are my friend in a vulnerable situation, but there is a silver lining to this, there are legal strategies that may help minimize, if not completely rule out, the damage or mischief that may occur to you.

Being a Supreme Court Advocate, I speak from experience, the following things may(if done correctly) help in a lot of cases :-

1. Insist on a dowry-less marriage – Preparing of list of articles received at the time of marriage, countersigned by both the families, would help rule out exaggerated claims later !

2. Digging the well before the fire starts; when trouble starts at home you apprise all concerned of the problems that you are facing, not for the purposes of any action but information;

If you see things going awry in near future, then it would be good idea to seperate from parents to a rented house with sufficient public notices;

3. As per the prevailing law atleast here in Delhi, if your wife approaches a Police Station with her complaint, she is to be forwarded CAW CELL instituted to try and reconcile and investigate and act as buffers so that penal actions are not initiated right away. Once the matter goes to CAW Cell – apply for an anticipatory bail , you are sure to get notice bail atleast – this would help in two ways :-

a) Give you greater confidence, level playing field in the CAW Cell talks;

b) Prevent any hasty arrest on failure of conciliation;

All in all nothing to lose in this and in this step 1. Would help a great deal.

4. Seek a copy of complaint via RTI ASAP, since they deny at the first instance you’d have to appeal there from which may take some time. There are CIC Decisions that would help you here.

5. In the event of an FIR being registered apply for AB again, and quashing of FIR (not always depends on the kind of allegations leveled)

6. Filing Restitution of Conjugal Rights (case that you want her back) may help in some cases, but not in all. Sometimes it helps in defending maintenance cases, and showing your bona fides.

7. Keep a check on your wife’s finances. Would come handy defending maintenance cases.

8. Prosecution (S.340 CrpC) for perjury in cases of false & exaggerated claims in maintenance petitions.

9. Tax Evasion Petitions once you get the List of Istridhan may also help put pressure.

10. Dowry Prohibition Act – penalizes giving of dowry so in case there is a clear admission of DOWRY (not Istridhan) then in that case your in laws are also liable to be prosecuted. Think on these lines !

11. With a marital property law on the anvil, don’t buy property in your name, much less jointly with spouse.

The above may go a great deal helping you defend correctly, my advise would be to stand your ground, don’t give in to their extortionate tactics, once you’d get an AB the worst would already be over and after that the judicial system with it’s endemic delays won’t treat your wife differently, sooner or later she would realize that frivolous litigation doesn’t pay !