• Exhibition of electronic evidences - email and SMS

Dear Learned Lawyers,

I need some legal advice regarding how to establish the authenticity of electronic evidences like emails and SMS that I need to produce in court w.r.t my matrimonial suit in lower court. The opposition lawyer is extremely notorious but equally efficient and is objecting to every footstep of ours, that too citing legal reference and judgements.


My email evidences are printouts taken directly from my office's (a corporate organization) mail-server and one email from ICICI bank’s server. All printouts contain browser url, my corporate User ID, date and time of printout, as well as IP address of the computer from where the printouts have been taken. Ideally they should get accepted as valid evidences. In extreme situation, if the learned judge (due to opposition's pressure) still doubts the authenticity of those emails, we will have to ask for authentication of concerned authorities (here my office and ICICI Bank) from whose server the email contents have been extracted. However, those authorities won’t provide any authentication without court order. 

Question 1: So what is the legal provision and procedure (please cite section & sub-section of law) to request the court to issue an order for authentication from a corporate organization and a private bank to authenticate email printouts taken from their server?
Question 2: If I carry my laptop and router in court and give a live demo by login to respective servers and displaying the email contents, will the court allow that?


Now coming to SMS. Unlike emails, it is not possible to take direct printout of SMS from mobiles with IP address and browser url. My SMS are present in my old Nokia mobile handset (non-smartphone). Unlike nowadays smartphones, there is no option to take direct printscreen from that old model. So the SMS contents have to be transferred from mobile to my laptop via a software called ‘Nokia PC Suite’; then screenshots of each relevant SMS has been captured and pasted in a Word document before taking printouts. As per my understanding, printout of screenshots should NOT be accepted as authentic document in court because there are chances of manipulation of screenshots in the computer. 

Question 3: So what is the legally-acceptable procedure to produce SMS contents as a valid evidence in court? How have you submitted SMS in your similar other litigations in the past? 
Question 4: Is there any legal provision to surrender my physical Nokia mobile handset to court’s custody as an evidence that I have genuinely sent and received those SMS? If yes, please cite the relevant section & sub-section of law. What legal procedure to follow to surrender my mobile handset officially to court?
Asked 7 years ago in Family Law
Religion: Hindu

18 answers received from multiple lawyers

Lawyers are available now to answer your questions.

18 Answers

as per Section 65B of the The Indian Evidence Act, 1872 for such emails to be proved, it has to be proved/established that the computer during the relevant period was in the lawful control of the person proving the email; that information was regularly fed into the computer in the ordinary course of the activities; that the computer was operating properly and the contents printed on paper are derived from the information fed into the computer in the ordinary course of activities and a certificate identifying the electronic record has to be proved.

2) court will not allow you to give live demo by taking your laptop and router and by login to the server

3) SMS are admissible in evidence under provisions of section 65B)(1) of Evidence act

4)Notwithstanding anything contained in this Act, 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 (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be 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 therein of which direct evidence would be admissible.

Ajay Sethi
Advocate, Mumbai
95221 Answers
7612 Consultations

5.0 on 5.0

1. if you take the sms and email print out from your own mobile /computer then you will have to attach a certificate along with the print outs as provided for u/s 65B of evidence act.

2.there is no need to carry the hardware nor seeking any direction is required from the service provider.

3.If you produce the print outs along with certificate then the same is admissible as evidence at the time of your evidence.

Feel free to contact for further assistance in this regard.

Devajyoti Barman
Advocate, Kolkata
22921 Answers
498 Consultations

5.0 on 5.0

1. Take your laptop and router to a cyber cafe and get its manager open the said sites and get the printouts of those documents you wish to submit before the Court.

2. After that get an affidavit notarised by him affirming that he has downloaded the said documents/SMS from the respective servers/cites/phones and got the said printouts. The said affidavit becomes a document which can be served as evidence in your support.

3. If the Court doubts, then only your Advocate can seek order for getting the documents authenticity verified from the appropriate persons.

4. This is how the digital evidences are submitted before the Court.

5. Ensure that the said digital documents are not edited or deleted.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

Dear Querist

My opinion on your queries are as under:

Question 1: So what is the legal provision and procedure (please cite section & sub-section of law) to request the court to issue an order for authentication from a corporate organization and a private bank to authenticate email printouts taken from their server?

Opinion: You have to file an affidavit Under Section 65B of Indian Evidence Act-1872 as amended, all the digital documents are admissible as evidence as per the above section.

Question 2: If I carry my laptop and router in court and give a live demo by login to respective servers and displaying the email contents, will the court allow that?

Opinion: yes, the court may allow you to do.

Question 3: So what is the legally-acceptable procedure to produce SMS contents as a valid evidence in court? How have you submitted SMS in your similar other litigations in the past?

Opinion: Get the certified copy of the same and filed before the court in which the matter is pending and also you have to file an affidavit cum certificate U/s 65B of Indian Evidence Act-1872 as amended.

Question 4: Is there any legal provision to surrender my physical Nokia mobile handset to court’s custody as an evidence that I have genuinely sent and received those SMS? If yes, please cite the relevant section & sub-section of law. What legal procedure to follow to surrender my mobile handset officially to court?

Opinion: if the opposite party raised any objection on the genuineness of those sms then the court may pass an order for the FSL report of the original device and then you have to deposit the same before the court or before the Investigation Officer if matter is related to crime.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6307 Answers
302 Consultations

4.9 on 5.0

according to Section 2(1) (t) of the IT Act, an electronic record is “data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche”.

2) SMS/WhatsApp message would be admissible under the court of law for the documents are admissible under the Section 65 of Indian Evidence Act, 1872.

3)In State of Delhi v. Mohd. Afzal & Others, it was held that electronic records are admissible.

4) In   the   matter   of  Ark   Shipping   Co.   Ltd.

Vs. GRT Shipmanagement Pvt. Ltd.   2007(5) ALLMR 516.  Hon'ble

Bombay   High   Court   has   discussed   the   necessity   of   certificate  under

section 65B of Evidence Act and provided the  sample of certificate

which is reproduced 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

7

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 charter­party concluded between the petitioners

and respondents, above named.

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.

Ajay Sethi
Advocate, Mumbai
95221 Answers
7612 Consultations

5.0 on 5.0

1.My clients have arranged for such affidavits affirmed by cyber cafe managers of their locality in Kolkata. If such person can not be arranged by you, you shall have to submit the said affidavit in place of the said cyber cafe manager.

2. If the Court cast any doubt in authenticity of the document laced by you you can seek holding of scientific, technical or expert investigation as per section 75 (e) of C.P.C.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

I provide formats in lieu of-professional fees only for which you ca conact me in private.

Devajyoti Barman
Advocate, Kolkata
22921 Answers
498 Consultations

5.0 on 5.0

Part of some observations made in a case decided by supreme court on admissibility of electronic evidences is given below:

The Evidence Act has been amended from time to

time, especially to provide for the admissibility of

electronic records along with paper based documents

as evidence in the Indian courts. Some of the

significant amendments include granting electronic

records the status of documents for the purpose of

adducing evidence.5 The definition of ‘admission’6 was

changed to include a statement, oral or documentary,

or contained in electronic form, which suggests any

inference as to any fact in issue or relevant fact, while

section 22A was inserted to provide for the relevancy

of oral evidence as to the contents of electronic

records. It provides that oral admissions as to the

contents of electronic records are not relevant, unless

the genuineness of the electronic records that are

produced is in question.

Perhaps the most important amendment to the

Evidence Act has been the introduction of sections

65A and 65B under the second schedule of the IT Act,7

which provides for a special procedure for adducing

evidence in relation to electronic records. Section 65B

provides that notwithstanding anything contained in

the Evidence Act, any information contained in an

electronic record (whether it be the contents of a

document or communication printed on a paper, or

stored, recorded, copied in optical or magnetic media

produced by a computer), is deemed to be a

document and is admissible in evidence without

further proof of the production of the original,

providing the conditions set out in section 65B for the

admissibility of evidence are satisfied, which have

been set out as under:

1. At the time of creation of the electronic

record, the computer output containing the

information was produced from a computer

that 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.

2. During the period, the kind of information

contained in the electronic record was

regularly fed in to the computer in the

ordinary course of the activities

The full procedure to be followed in this regard is given in Section 65B of Indian evidence act, which you may peruse fully.

Indian Evidence ACT Section 65A and Section 65B. Section 65B of the Indian Evidence Act relates to admissibility of electronic records as evidence in a Court of law. The computer holding the original evidence does not need to be produced in court.

T Kalaiselvan
Advocate, Vellore
85422 Answers
2239 Consultations

5.0 on 5.0

1. You told to get a certified copy of the SMS apart from filing affidavit u/s 65B of Indian Evidence Act. Now, how and from where can I get a certified copy of the contents of SMS sent and received?

It is called as expert's opinion to the genuineness. A certified or qualified engineer in this field may certify the authenticity and genuineness of the contents of the SMS to be produced before court, the burden lies on the person who relies on such evidence to prove.

What is a FSL (Forecast Systems Laboratory) report? What is validated while doing the FSL report of a mobile phone?

FSL means forensic sciences laboratory.

The experts of that department may certify the authenticity of the evidence which you rely upon and would like to produce it before court to prove your case.

Your advocate has to file a petition under section 45 of Indian evidence act seeking permission of court to send the evidence to the FSL to prove its genuineness.

T Kalaiselvan
Advocate, Vellore
85422 Answers
2239 Consultations

5.0 on 5.0

1) court would mark the documents as exhibits after being satisfied by evidence on record that emails were exchanged between the parties

2) affidavit executed under section 65 B should suffice for admitting the said documents as exhibits

Ajay Sethi
Advocate, Mumbai
95221 Answers
7612 Consultations

5.0 on 5.0

The court will go by the prescribed law in this regard and not by your opinion

You may be having lot of evidence which you may consider them to be vital but may not consider them as primary evidence owing to the lack in procedures that was followed.

You may corroborate them during trial proceedings.

What is your own lawyer's opinion

T Kalaiselvan
Advocate, Vellore
85422 Answers
2239 Consultations

5.0 on 5.0

1. This is an orthodox Judgement/Order passed by the said Judge..

2. File an appeal challenging the said Judgement/Order before the Appellate Court. praying for including those documents/records as evidence.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1) original purchase bills submitted by you for furniture and jewellery is sufficient . you dont need to produce counterparts retained by shop keeper

2)you dont need to submit any declaration under section 65 B for Vodafone call list . you have not generated the call lists

3)as far as emails and sms is concerned there has to be separate declaration and cannot be merged with affidavit in chief

Ajay Sethi
Advocate, Mumbai
95221 Answers
7612 Consultations

5.0 on 5.0

Dear Querist

My opinion on your queries are as under:-

@Nadeem Qureshi,

1. You told to get a certified copy of the SMS apart from filing affidavit u/s 65B of Indian Evidence Act. Now, how and from where can I get a certified copy of the contents of SMS sent and received?

Opinion:- certified copy of those SMS is not possible as those SMS is not a part of any judicial proceedings. Certificate u/s 65B of Indian Evidence Act-1872 will be better.

2. What is a FSL (Forecast Systems Laboratory) report? What is validated while doing the FSL report of a mobile phone? Who does it and from where? I guess my advocate has to appeal for FSL report of my mobile handset if the opposition objects to my SMS. What is the section and sub-section of law under which my advocate has to appeal for it?

(BTW, it is a matrimonial/civil suit, not criminal. But the opposition lawyer is very notorious.)

Opinion:- FSL (Forensic Science Laboratory), this is govt. Body and admissible as per evidence Act-1872.

Nadeem Qureshi
Advocate, New Delhi
6307 Answers
302 Consultations

4.9 on 5.0

1. It is a valid objection and well within law.

Why have you not taken proper precaution to produce the electronic form evidences observing the procedure as prescribed in section65b of

Indian evidence act.

Did your own advocate not advice you properly on this.

Ignorance of law cannot be claimed as an excuse.

2. Your understanding is not law.

They are not legally valid unless certified by its author.

3. You prefer an appeal on this grievance.

T Kalaiselvan
Advocate, Vellore
85422 Answers
2239 Consultations

5.0 on 5.0

1. Your opposite side lawyer has raised only a technical objection i.e. electronic evidences should be submitted with a separate and exclusive affidavit affirming about those evidence only and not affirming in the affidavit in chief. I do not agree with this observation. I have recently submitted such electronic evidences in evidence in chief before the Howrah court in connection with a Mat suit and those emails. SMS copies have been admitted as exhibits. You shall have to challenge his said order before appellate court praying to set aside the same.

2. Call list records sent by service providers are not electronic evidence at all. Challenge the said order as advised above.

3. This is surprising. It is not your duty to collect shop keepers counter part from him with out court order. Moreover there are debit card entries which can be found from the bank's statement of accounts duly stamped and signed by the Branch Manager of the concerned Bank. Appeal against the said order as advised above and also in my earlier post.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

witness summons can be issued to jewellery shop to prove that original purchase bills were issued by them

2) similarly for vodafone summons can be issued to vodafone to appear in court to prove the bills raised by them

Ajay Sethi
Advocate, Mumbai
95221 Answers
7612 Consultations

5.0 on 5.0

Your family lawyer is right in stating that the private parties are required to be Summoned by the Court for deposing and submitting evidence before it.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer