WhatsApp Message as An Electronic Evidence
With the advent and widespread use of electronic means to facilitate business transactions, it is vital to understand the enforceability of such transactions in India’s Courts of law, more specifically, the admissibility of electronic records as evidence to establish legality of such transactions.
Many businesses conduct essential meetings and business deals on platforms such as e-mail, and even on instant messaging apps such as WhatsApp and other similar applications. Schedules and minutes of meetings, essential documents, and receipts are all communicated via or on office WhatsApp groups.
However, it is essential to be informed on how electronic records of conversations and documents shared on such platforms should be preserved and protected in the event these are to be produced as evidence in court.
ARE ELECTRONIC RECORDS ADMISSIBLE IN INDIA?
To keep pace with the rapid developments in technology, the legislature enacted the Information Technology (“IT”) Act, 2000 and amended the Indian Evidence Act, 1872 in 2016 to recognize and include electronic records as an admissible evidence.
In accordance to Section 3 of the Indian Evidence Act, 1872 an evidence means and includes all documents including electronic records for the purpose of inspection by the Court. Whereas, Section 2 (1) (t) of the IT Act defines Electronic Evidence as “data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.”
Evidence law in India is categorized into primary and secondary evidence, primary evidence being the original, and secondary evidence being any number of copies or reproductions of the original.
The distinction serves to impose on secondary evidence a higher threshold of authenticity in comparison to primary evidence in order to filter out any wrongdoers who may tamper with evidence. The general rule of law of evidence is that when primary evidence (i.e. the original) is not available, secondary evidence (i.e. copies) is not admissible.
The principle governing primary and secondary evidence is applicable to electronic evidence too. While the device that produces the electronic record is primary evidence, any reproduction of such electronic record (print outs, soft copy) is secondary evidence. However, due to the complexities associated with adducing primary electronic evidence, this general rule that secondary evidence is only admissible when primary evidence is available is relaxed.
All electronic documentation, therefore, falls under the category of secondary evidence. Owing to the nature of electronic records and their susceptibility to tampering, courts have adopted stringent measures while evaluating the authenticity, reliability, and relevance of all forms of electronic records, including chats on social messaging platforms, chat engines, and traditional electronic records such as e-mail. The slightest doubt that such record may have been tampered with is sufficient for courts to reject its admissibility altogether.
Section 65 of the Indian Evidence Act, 1872 provides for situations when a party may lead secondary evidence.
Section 65A, says that the contents of electronic records may be proved in accordance with the provisions of Section 65B. Section 65B prescribes the mode for proof of contents of electronic records.
The primary purpose is to sanctify proof of secondary evidence. This facility of proof by secondary evidence would apply to any computer output, such output being deemed as a document.
Accordingly, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer and to be referred to as computer output, shall also be deemed to a document.
The section lays down certain conditions which have to be satisfied in relation to the information and the computer in question. Where those conditions are satisfied, the electronic record shall become admissible in any proceedings without further proof or production of the original as evidence of any contents of the original or of any fact stated in it.
CONDITIONS FOR CONSIDERING AN ELECTRONIC RECORD
The conditions which have to be satisfied so as to make a computer output as evidence are stated in sub-section (2). They are as follows:
1. The computer output containing the information was produced by the computer during the period over which the computer was used regularly to stores or process the 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;
2. The information contained in the electronic record is of the kind which was regularly fed into the computer in the ordinary course of its activities;
3. The computer should have been operating properly during the periods of the data feeding or if it was not operating properly during that period or was out of operation, that gasp was not such as to affect the electronic record of the accuracy of its contents;
4. The information contained in the electronic record was derived or is reproduced from the information fed into the computer in the ordinary course of its activities.
When a statement has to be produced in evidence under this section, it should be accompanied by a certificate which should identify the electronic record containing the statement and describe the manner in which it was produced, give the particulars of the device involved in the production of the electronic record showing that the same was produced by a computer and showing compliance with the conditions of sub-section (2) of this section.
The statement should be signed by a person occupying a responsible official position in relation to the operating or management of the relevant activities. Such statement shall be evidence of the matter stated in the certificate. It should be sufficient for this purpose that the statement is made to the best knowledge and belief of the person making it.
Despite the mandatory nature of these conditions, the law has been applied inconsistently. For instance, the certificate of authenticity has not always been filed with the electronic records in legal proceedings.
FIRST VIEW OF SC
The Supreme Court in State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 had held that courts could admit electronic records such as printouts and compact discs as prima facie evidence without authentication.
This case dealt with the proof and admissibility of the records of mobile telephone calls. The accused made a submission that no reliance could be placed on the mobile telephone records because the prosecution had failed to produce the relevant certificate under section 65B(4) of the Evidence Act and that the procedure set out in section 65B of the Evidence Act was not followed.
The Supreme Court concluded that a cross examination of the competent witness acquainted with the functioning of the computer during the relevant time and manner in which the printouts of the call records were taken was sufficient to prove the call records. As a result, the printouts and CDs were not compared to the original electronic record or certified at the time of adducing it as evidence.
The Court concluded that the requirement of certificate under Section 65B is not always mandatory and irrespective of the compliance of the requirements of Section 65B, there is no bar to adducing secondary evidence under other provisions of the Evidence Act.
SECOND VIEW OF SC
However, the Supreme Court departed from this opinion in the Anvar P.V. Vs. P.K. Basheer 2014 (9) SC J 1, and redefined the evidentiary admissibility of electronic records to correctly reflect the letter of the Evidence Act by re-interpreting the application of Sections 65 and 65B of the Evidence Act.
The Supreme Court declined to accept the view that the Courts could admit electronic records as prima facie evidence without authentication. It was held that in the case of any electronic record, it should be accompanied by the certificate in terms of section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record is inadmissible.
The Supreme Court held that the purpose of these provisions is to sanctify electronic evidence and the requirement of giving an electronic certificate under Section 65B pertaining to any electronic evidence or electronic record is mandatory for treating such an evidence as admissible in law.
Thereafter the Supreme Court in Shafhi Mohammad v. State of H.P. (2018) 2 SCC 801, held that the requirement of the certificate under Section 65B of the Evidence Act as per the judgment of Anvar P.V. is not required in the following two cases :-
1. A party who is not in possession of device from which the document is produced cannot be required to produce certificate under Section 65-B(4) of the Evidence Act
2. The applicability of requirement of certificate being procedural can be relaxed by the court wherever interest of justice so justifies.
LARGER BENCH OF SC ON CERTIFICATE
In order to settle the two different interpretations between Anvar P.V. and Shafhi Mohammad, the mater was referred to larger Bench of Hon’ble Supreme Court of India in the case of
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors, Civil Appeal Nos. 20825-20826 Of 2017, decided on 14 July 2020.
The Supreme Court held that the certificate required under Section 65B of the Indian Evidence Act, is a condition precedent for the admissibility of any electronic evidence.
We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly “clarified” in Shafhi Mohammed. Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law.
The Court clarified that the certificate under Section 65B(4) is unnecessary if the original document itself is produced. If the owner proves a laptop, computer, computer tablet or a mobile phone owned or operated by him brings the same in the witness-box, on which the original information is first stored, the requirement of the certificate under Section 65B(4) is unnecessary.
It was held that Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. It was held that Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) ineffectual.
The Court held that the following directions shall be followed by the Court dealing with electronics evidence till rules and directions under Section 67C of IT Act and data retention conditions are formulated for compliance by telecom and internet service providers:
…general directions are issued to cellular companies and internet service providers to maintain CDRs and other relevant records for the concerned period (in tune with Section 39 of the Evidence Act) in a segregated and secure manner if a particular CDR or other record is seized during investigation in the said period. Concerned parties can then summon such records at the stage of defence evidence, or in the event such data is required to cross-examine a particular witness.”
Hence, strict compliance with section 65B is now mandatory for persons who intend to rely any electronic record before the courts in India.
WHATSAPP MESSAGES AS AN EVIDENCE
DELHI HIGH COURT
The Delhi High Court in National Lawyers Campaign For Judicial Transparency And Reforms & Ors Versus Union Of India & Ors, W.P. (C) 447/2017, decided on 22 May 2017 held that a WhatsApp post does not qualify as valid legal evidence under the Evidence Act, especially when neither the original nor a copy of the original document is produced.
MUMBAI HIGH COURT
On the contrary, the Bombay High Court held SMS/WhatsApp messages to be admissible under the Court of law under Section 65 of Indian Evidence Act in the case of SBI Cards & Payment Services Pvt Ltd. vs. Rohidas Yadav, Execution Application No. 1196 of 2015, decided on 11 June 2018. The Court held that legal notice or messages sent though WhatsApp messenger are to be considered as legal evidence under the law and the blue tick in WhatsApp is a valid proof that the Respondent has accepted the physical copy of communication.
The NCLAT in the matter of Bhandari Hosiery Exports Ltd. & Ors vs. In-Time Garments Pvt. Ltd., Company Appeal (AT) (Insolvency) No. 143 of 2019, decided on 1 March 2019, took on record a text message sent over WhatsApp messenger by a corporate debtor to an operational creditor complaining about the quality of goods supplied. On basis of this WhatsApp message, the Court held that there was a ‘pre-existing dispute’ under Section 9 of the Code and accordingly Insolvency Application could not be admitted on account of a pre-existence dispute.
Further, the NCLT, Chennai Bench in Val-Met Engineering Pvt. Ltd. vs. Trusted Aerspace Engineering Pvt. Ltd., CP/922/IB/2018, decided on 21 June 2019, relied on the decision of the NCLAT in Bhandari Hoseiry Exports and held that there is no bar on relying on WhatsApp messages exchanges between the parties as the same are admissible under Section 65 B of the Evidence Act. The Tribunal concluded that the WhatsApp messages exchanges between the parties amounted to an acknowledgement of debt.
On the contrary, recently, the Allahabad NCLT Bench in GP Capt Atul Jain vs Tripathi Hospital Pvt. Ltd., CP No. (IB) 457/ALD/2019, decided on 25 June 2020, sympathised with the Petitioner for the loss but rejected to admit its claim on the ground that the he did not furnish any supporting documents.
The Tribunal held that WhatsApp messages between the parties that were attached as a proof to establish the debt cannot be considered as an evidence to establish existence of debt.
This outlook of the Supreme Court of India is to ensure that the credibility and evidentiary value of electronic evidence is provided for, since the electronic record is more susceptible to tampering and alteration.
The progressive and disciplined approach of the Indian courts in ensuring compliance of the safeguards for relying on digital evidence is a result of a proper recognition and appreciation of the nature of electronic records itself.
Arjun Panditrao Khotkar is a landmark decision for India in the methods of taking evidence, as it will not only save the courts time wasted in parties attempting to prove the electronic records through secondary oral evidence in form of cross examinations, but also discourage the admission of fudged and tampered electronic records from being relied upon, although certain precautions for authenticity of the electronic records will continue to be necessary.
Therefore, the computer generated electronic record cannot be solely relied upon, because there is a possibility of it being hampered and should be used as a corroborative evidence.
Current law relating to the admissibility of electronic documentation of different kinds, specially through instant messengers, still has a few issues that remain unresolved. Questions relating to the procedure for preserving and adducing more modern forms of electronic documentation in court are being debated, and an authoritative precedent on these grey areas is awaited.
Nonetheless, the general rule is that since a mobile phone is a computer as envisaged under the Information Technology Act, 2000, a printout of screenshots of messages on a mobile phone will be considered as a secondary evidence and admissible in court of law subject to compliance of Section 65B.