ADMISSIBILITY OF SECONDARY EVIDENCE IN COMMERCIAL TRANSACTIONS IN COURT OF LAW by -Nikita Mistry
In a commercial transaction matter, which are not of an ordinary civil matter such as ICICI Bank Ltd. (PLAINTIFF) Vs Kapil Dev Sharma (DEFENDANT) was covered under the Bankers Book of Evidence Act, 1891 (BBE Act) which provides with special provisions for giving evidentiary value of the extracts of the banker’s book such as statements of accounts, printouts etc. in relation to the Original Documents i.e., primary evidence when such secondary evidence is produced in the court during the legal proceeding for proving or establishing the validity of O.D. The present case was for suit of recovery, dismissed by the way of appeal in Delhi High court (HC), 31st Jan 2018 by Justice Pratibha M. Singh. The question was whether or not the secondary evidence i.e., printouts of statement of records of the electronic form be admissible as evidence in the court of law? While deciding, it was concluded that as long as the question of doubt does not arise on the authenticity or existence of the O.D and if the proof exists in the Electronic Record that loan has been disbursed and enjoyed and not replayed back then, secondary documents in place of the first are admissible. For that, conditions of Sec 34, 65A read with 65B of IEA,1872 should be also satisfied. Under BBE Act Sec.2(8), conditions of Sec.2A regarding printouts and Sec.4 should be mandatorily complied with as it is rightly pointed out, today primary mode of storing information is electronic and rarely otherwise therefore dynamic approach should be taken while dealing with issues pertaining to technology. Apart from this Reserve Bank of India (RBI) did publish a notification on 24th April 2009 stating banks to comply with the provisions of BBE Act while providing secondary evidence and if not complied then without any further proof court won’t make it admissible and Valid. Therefore, this research paper aims to analyze the evidentiary value of secondary evidence pertaining to the commercial transaction in respect of primary documents.
1 LLM-Financial Regulations, SVKMs NMIMS- Kirit P. Mehta School of Law
Key Words- Admissibility, Secondary evidence, evidentiary value, commercial transaction.
1.2. REVIEW OF LITERATURE
The data relating to this research is based from Various precedents, case analysis, statutes and open internet articles. one case laws explain about the conditions for establishing liability, need for certification of the certified copies for secondary evidence and when objection is needed to be raised of documents in dispute. In one of the Article the authors speak about the importance and relevance of Primary and secondary evidence (S.E) related to Banking Records and evidentiary value of the same. While providing S.E one of the precedents describes the importance and purpose of Sec.65A and 65B of IEA which are to be constructed with BBE Act while dealing with
E.F of Records of the Bankers Book extracts. For the further proof to establish claim it is also required to provide the validity in respect of authenticity of S.E which can be sort from Authorized legal officer statement.
1.3. STATEMENT OF PROBLEM
New mode of communication, transactions and digitalization has revolutionized the way we conduct our business and day to day activity which consists of both advantages and dis- advantages. E-data when stored or regulated through servers, e-magnetic storage devices raise the concerns for their tampering, alteration or disposition which can prove to delay and impair the justice mechanism when admitted their part thereof as evidence in a case of dispute. This research paper Main goal is to examine and analyse the evidentiary value of the records of the banks with respect to primary and secondary mode of evidence as enumerated under IEA Act and BBE Act with legal framework provided thereunder.
1. To analyze the importance of Primary and Secondary evidence for the certified copies/statement of accounts or Records of the Banks books.
2. To examine the admissibility of Secondary documents for evidence in the commercial transactions of banking records before the court of law.
3. To outline the relevant legal provisions pertaining to this case study under BBE,1891 and IEA,1872.
Most of our transactions takes place online or through internet-based application while making payment for n no. of things such as either to banks or from banks. When any technical issue arises for the same it is important to bear in mind the laws laid down and governed for such activity in case of default. Therefore, this research paper is limited to derive the need and relevance of the admissibility of the S.E in commercial transactions of e-platforms when dispute to default so arise out of the statements of accounts of the banking records.
1. The records of banks are legal and sincere source of information for evidence admissibility as long as criteria of their accuracy and reliability is carried out under Sec.2A,2(8), and 4 of BBE Act,1891 along with S.34 and 65B of IEA.
2. If objection to the secondary documents is to be raised it needs to be done while tendering the evidence and not after that, and as to the proof of its mode and not only of admissibility, otherwise it would be rejected without any further proof by the court.
3. Sec.65B of IEA,1872 is similar to that of Sec. 2A BBE Act, but while dealing with banks records the resort of BBE Act has to be complied with and not otherwise.
4. Sec 34 of IEA has to be constructed together with Sec. 2A, 2(8) of BBE Act for establishing liability of defaulter with proof in its respect.
1.7. RESEARCH METHODOLOGY
In respect of objective, doctrinal research method has been adopted. The paper will be based from various readings, and research articles and case study itself. The information will be collected from primary and secondary sources such as judgement/order of the original jurisdiction of the court, books, statutes, precedents, and internet resources. Based purely on theoretical aspects and focuses towards provisions related to admissibility of secondary documents of the records maintained in banker’s books and derives the answers for the research problem related thereof.
RELEVANT ACTS AND NOTIFICATION SPECIFIED
2.1. THE INFORMATION TECHNOLOGY ACT,2000 (IT Act,2000)
The IT Act, 2000 is the primary law dealing with cybercrime and electronic commerce. The information(info.) stored in E.F are cheaper, easier to store and retrieve with faster to communicate because of which more business and consumers are inclined to use the computer to generate, transmit and accumulate data instead of adapting the traditional paper-based mode. Thus, to provide the authenticity, legal recognition to E.R and to digital signature the legal framework was covered under this Act with various amendments over time. Sections of the Acts relevant -Sec. 92 schedule-II which were enumerated but repealed and amended into the IE Act,1872,
Sec.2 (l)- Computer system: collection of devices capable of being used with external files including input/output data devices which performs functions of logic, retrieval, storage and communication control
Sec 2(r) and (t): Electronic Form and Record: Information generated, sent, received, stored in media, microfilm, computer memory thereto and E.R means data recorded/generated, storage of image/sound, received or sent in Electronic Form respectively.2
2.2. NOTIFICATION ISSUED BY RESERVE BANK OF INDIA,2014
The RBI is the central Bank which Manages the main payment system of our country and is also responsible for regulating the banking system of India while simultaneously boosting our economic growth. On the direction from the court of Maharashtra on 24th April 2014 (RBI/2008-09/457) published a notification instructing State and Central Co-operative banks to comply with provisions of Sec. 2A (a), (b) while submitting printouts/ certified copies of e-data under BBE Act,1891 i.e.; accompanied with certification, which without any further proof would be admissible and valid, but failing which court can duly reject it even though marked as exhibit.3
2.3. BANKERS BOOK OF EVIDENCE ACT,1891 (BBE Act,1891)
The BBE Act, 1891 enumerated with special provisions that are to be carried out while producing records of extracts of the banker’s books as evidence in the court of law. It specially deals with bank records i.e. which are in secondary form of documents. Sections of the Acts relevant to this case. Sec. 2(2) -bankers Books: includes ledgers, day/cash/accounts books etc. used in ordinary course of business, either kept in written or stored in mechanical/electronic data retrieval mechanism, either on or off site with backup or recovery site.
2 The Information Technology Act,2000, S.2 (l), S.2(r), S.2(t), No. 21, Acts of Parliament, 2000 (India).
3 Reserve Bank of India, https://www.rbi.org.in/ScriptS/NotificationUser.aspx?Id=4954&Mode=0 ,11th Jan. 2021.
The law provides for- BBE Act,1891; Sec.2(8)-certified copy and Sec .2A -conditions in the printouts. meaning printouts or copy of entry with sec.2(8) shall be accompanied with certificate (Sec.2A) that vouch for its accuracy and reliability.
a. Sec. 2(8): If data is maintained in a written form/ electronic form / mechanical form then, printouts or its copy with certificate should mention it to be true, done in course of business, book still in their custody, and if original are destroyed then certification of same to be submitted with date and proper signature from authorized personnel. In case of E.F- electromagnetic data storage device (floppy, disc), or in case of M.F– mechanical/electronic data retrieval mechanism(micro-film) should be accompanied with certification as per S.2A and will deemed to be certified copy respectively.
b. Sec. 2A (a), (b): from the principal/branch manager or a person in charge of computer system with laying necessary particulates stipulated of the system such as safeguard adopted;
i. Operation performed only by authorized personnel.
ii. To detect and prevent an unauthorized change, tampering with the system and Data retrieval availability mechanism in case of failure.
iii. Mode of transfer of data to removable media like tapes floppies etc. and verification of accuracy of the same with identification mode of the storage devices.
iv. Validating that records so presented are the true copy of original entry kept in the custody and maintained in the ordinary course of business transactions.4
Chandrahdar Goswami Vs. Guhati Bank Ltd. AIR 1967 SC 1058:
Further for establishing liability of a default along with certification mode of existence of payment done have to be satisfied as well therefore, BBE Act The law provides for- Sec. 4 Mode of entries proof.
Sec.4- certified copy will be received as legal and prima facie evidence of existence of such entry in court proceeding in related matter, transactions and accounts connected thereto.5
2.4. INDIAN EVIDENCE ACT,1872(IE Act,1872)
The IE Act of 1872 was originally incorporated during the British rule in India, thereby containing the rules pertaining to the evidence admissibility in the courts of law. However due to the rise in which business are transacted today digitally, by the way of IT Act 2000 necessary changes were brought regarding admissibility of evidence while dealing with E.F of records as a proof of evidence in the court of law. These are the sections of the Acts relevant to this case. Sec 3(2) – Evidence: All and ors. documents of electronic records produced for inspection in court are documentary evidence, Sec.34 – entries in the book of accounts maintained in electronic form (E.F), sec. 45 Opinion of experts, sec.62-
4The Bankers Book of Evidence Act, 1891, S.2(2), S.2(8), S.2A (a), (b), S.4, No.18, Acts of Parliament,1891 (India)
5 Indian Institute of Banking & Finance, Legal & Regulatory Aspects of Banking,297 (3rd ed. 2019).
Primary evidence, Sec.65A special provisions as to E.F or Record, Sec.65B- admissibility of E.R. of IEA,1872.6
CHAPTER-III BACKGROUND OF THE CASE
3.1. PARTIES TO THE CASE
M/S ICICI Bank Limited (plaintiff) Vs. Kapil Dev Sharma (Defendant). (ICICI Vs. KDS) -(RFA- 299/2015)
Matter originally decided by the Trial Court (T.C) and dismissed by the way of Appeal in the Delhi High Court (H.C) under Justice Prathiba M. Singh on 31st Jan 2018.
Commercial Transactions: It can be regard as transactions taking place in exchange of goods and services performed by the mode of payment of money.
3.2. RELAVANT FACTS OF THE CASE
1. Defendant approached Plaintiff Bank (P.B) for loan of sum of Rs.4,18,000/- for purchase of vehicle BEAT Diesel/LT bearing registration No. HR-51AT-4449 and agreed to repay it in 60 Equal Monthly Instalments (EMI) of Rs.9,246/-.
2. On 25th July 2012 the loan was disbursed and sanctioned to the vehicle dealer with all deducting of stamp duty and other fees by the P.B. Hence, the loan was secured by the defendant.
3. In 15 instalments Rs.1,38,690/- was paid by the defendant.
4. As of 5th April 2014, defendant had to repay in total of Rs/3,55,700.70/- and same was constituted in Loan Recall Notice (L.R.N).
5. On10th April, 2014 original L.R.N was given by P.B
6. As of on 24th April 2014, the total liability was amounting to Rs. 3,77,008.04/-.
7. On 21st May, 2014 receiver (Mr. Laxman Gaur) was appointed by the court for taking possession of vehicle with undertaking as not to sell the same without courts permission. The PW-1 was accompanied with the following documents along with the affidavit:
i. Power of Attorney (P.O.A.) authorizing him to depose and irrevocable P.O.A
ii. Original credit facility application form with requisites of the loan.
iii. Unattested deed of hypothecation
iv. Photocopy of L.R.N and Postal Receipt
v. Statement of accounts certified under the BBE Act,1891.
6 JUSTICE M.R. MALLICK, CRIMINAL MANUAL,1,(Criminal Manual 2019).
8. On 3rd September, 2014 report stated that both vehicle and defendant were untraceable.
9. Suit for recovery based on loan transaction (commercial transaction) was filed by the P.B of Rs.3,77,008.04/-.
5 EMI paid but bounced = Rs. 46,230/- and Late fee + bounce charges= Rs. 7,166/- Hence total of = Rs. 53,396/- to be paid Along with unpaid future instalments of Rs. 3,69,840/- (24th April 2014)
10. On 6th January, 2015, the Defendant was proceeded ex-parte, as repeated attempted were made to serve during the suit also through public notification but was failed to appear.
11. All the necessary steps, dishonoured cheques, original loan documents and others pertaining to the case, and Statement of account was duly accompanied with the certificate (criteria of Sec.2A, 4 BBE Act was met) was placed on record by the P.B and thus prayed for decree in T.C.
12. On 19th February, 2015 on the grounds that P.B failed to produce original L.R.N the case was dismissed by the T.C.
13. Then the case was filed in Delhi High Court and the issues and facts are as follows.7
3.3. QUESTION OF LAW RAISED
3.3.1. Whether the Trial Court was right for dismissing the case on the ground of failure to produce Original Loan Recall Notice (LRN)?
3.3.2. Whether the filing of Original Documents in respect of Secondary Documents as evidence necessary in the Commercial Transaction matter or not?
3.3.3. Whether Secondary Evidence with certification is admissible in court of law pertaining to Electronic Records or not?
ANALYSIS OF THE QUESTION OF LAW
4.1. WHETHER THE TRIAL COURT WAS RIGHT FOR DISMISSING THE CASE ON THE GROUND OF FAILURE TO PRODUCE ORIGINAL LOAN RECALL NOTICE (LRN)? [3.3.1]
From the facts connected to this case, it will be correct to say that TC was not justifiable while dismissing only on the ground that P.B produced the photocopy of the LRN with service receipt and failed to produce it in original. It merely provides closure, takes away the luxury of installments
7 M/S ICICI Bank Limited v. Kapil Dev Sharma 2018 SCC Online Del 6946.
payment and not the default itself as duly noted by HC. The defendant was even proceeded ex-Parte despite of being served through publication and naturally the original LRN resides with the defendant and so not submitted. All the loan documents were with proper signature, print-outs of statement of banks records marking the existence of loan default and are with certification compliance under Sec.2A ,2(8) of BBE Act, PW-1 report proved that defendant with willful negligence tried to escape the proceed of the court, Unattested deed of hypothecation of amount of loan released were filed in original; were on record ignored and failed to be considered. Moreover, even in absence of L.R.N the suit is maintainable -correctness of the records were validated by P.B. Thus, all these ‘facts in issue’ itself speak of its evidence that loan was disbursed, availed, enjoyed and defaulted by the defendant.8
4.2. WHETHER THE FILING OF ORIGINAL DOCUMENTS IN RESPECT OF SECONDARY DOCUMENTS AS EVIDENCE IS NECESSARY IN THE COMMERCIAL TRANSACTION MATTER OR NOT? – [3.2.2]
The law provides for IEA,1872: Sec.61- proof of contents of the documents which can either be proved by the primary or secondary mode of evidence. Further, Sec.62 of the O.D itself can be constituted as primary evidence during the inspection but not the copies arising out of the same.9 In most civil disputes the sec.62 has to be complied with because the interpretation of O.D is itself in dispute and not otherwise but in the commercial transaction it can only arise when the argument is related to their authenticity, genuinity or existence as a whole and raised by the parties themselves which is not as in this case. Here the printouts are adequate in nature with respect to the O.D i.e., Primary documents.10
4.3. WHETHER SECONDARY EVIDENCE WITH CERTIFICATION IS ADMISSIBLE IN COURT OF LAW PERTAINING TO ELECTRONIC RECORDS OR NOT? – [3.3.3]
Central Bureau of Investigation Vs. V.C Shukla & Ors, AIR 1998 SC
In IEA,1872 the law provides for- Sec.34 of the relevancy of entries in the books of accounts maintained in electronic form (E.F) conducted in the business hours. It alone cannot establish liability further proof has to be sort for existence of payment been done.11
9 M.R MALLICK, Supra Note 4, at 31
10 Supra Note 6
11 Vijay Pal Dalmia, India: Evidentiary Value of Bank Records (July 9, 2019), https://www.mondaq.com/india/financial- services/823596/evidentiary-value-of-bank-records
Anvar P.V. v. P.K. Basheer AIR 2015 SC 180 HC relying for further in the claim and which was also followed under Harpal Singh v. State of Punjab AIR 2016 SC 5389 and Kundan Singh v. State I (2016) CCR1 (Del.).
Law provides for- Sec. 65A- special provisions for the proof of contents of E.R, Sec.65B – conditions for admissibility of E.R of IEA,1872 and are to read together. The main purpose of 65B is to provide approval to the S.E and upon satisfying the conditions of the 65B (2) the very admissibility nature of S.E is proved with keeping in view of the provisions of Sec 65 B (4) being satisfied as well. And if the question of authenticity of E.R is disputed then condition laid down in Sec.45A-Experts Opinion should be duly referred to. Also, it is specified that – (Generalia special bus non derogant) special law will always prevail over the general law.12
In ELI Lilly v. Maiden Pharmaceuticals 2017 (161) DRJ 65 relying upon the Anvar Vs. Basheer(supra) held that:
Position of the person under 65B (4) to certify the terms and conditions of the E.R which are duly in accordance with the 65B (2) should be stated importantly and necessarily.13
Civil Evidence Act, 1995 of United Kingdom as duly noted by the HC.
the law provides for- Chapter 38-(8) and (9) that, copies of documents belonging to be the part of business or public authority are to be authenticated as per the discretion of the court and are admissible in court without further proof along with due certification from responsible officer of the same can be filed consisting a proper signature of him as well.
Thus, it can be stated that from the observation that S.E are admissible in court of law as long the above- mentioned sections are satisfied with assertion under certificate of its correctness are needed to be accompanied in printouts, CD’s, VCD, pen-drive etc. when such copy/records is sought to be given in evidence.14
Om Prakash v. Central Bureau of Investigation 2017 VII AD (Del) 649 it was held that:
While establishing liability beyond reasonable doubt; proving and linking those of the entries of banker’s books with other evidence is required, and to be place on record. Criteria of Sec.2A has to be duly complied with. While at the time of presenting the documents objection can and if raised then it should be of its modes and not of the admissibility itself. Along with that Sec.34 of IEA Act and 2(8), 4 of BBE Act to be considered while dealing with certified copies/ printouts etc. of the
12 Anvar P.V. v. P.K. Basheer AIR 2015 SC 180 (Supreme Court of India).
13 ELI Lilly v. Maiden Pharmaceuticals 2017 (161) DRJ 65
book of banks thus, making the secondary documents admissible as evidence in court of law.15 Similar stance was taken in (Chandrahdar Goswami V. Guhati Bank) (supra).
In Arjun Panditrao Khotkar Vs. Kailashkushanrao Gorantyal And Others (2020) 7 SCC 1 it was held that certificate under Sec.65B(4) of IEA, is a condition precedent for the admissibility of evidence related to E.R16
Thus, It is evident from the observation made from this case , that primary evidence is given priority above secondary but due to digitalization it is stored in servers, hard -drives of the computer system keeping it intact and secure though physically making it impossible to be movable for presentation each time hence, rational approach needs to be computed when dealing with technology and under such cases secondary evidence i.e., printouts of statements as in this case are valid as evidence. certification of its authenticity and validity from certified official responsible as were duly complied with under Sec34, 65B of the IEA by the P.B.
However, as noted under (Anvar V. Basheer) (supra) that Sec.65B is very similar to Sec.2A and special law prevails over general one it can be inferred as while dealing with especially copies of entries of banks books, the BBE Act,1891 should be constructed with 65B of IEA,1872.17 To support this claim, RBI did publish a notification instructing banks to comply while submitting certified copies and printouts; [mentioned herein in chapter-II- 2.4]
After thorough review and analysis of this case study it can be concluded that the P.B duly complied with all the necessary legal requisites of the law while proving its claim in suit of recovery and was awarded decree of sum of Rs.3,77,008.04/- with interest @8% P.A from filing date by the HC. T.C made an error in judgement, the absence of original L.R.N does not take away the right of claim and existence of default. From Sec.61 and 62 of the IEA it is derived that original documents in respect of secondary as evidence are needed to be provided only when dispute to its very genuinity occurs and not otherwise in commercial transactions. The records of banks are legal and sincere source of information
15 Om Prakash v. Central Bureau of Investigation 2017 VII AD (Del) 649
16 Livelaw news network,whatsapp message has no evidentiary value without certificate ,Livelaw.in, Jan 17th 2020 9:59AM, https://www.livelaw.in/news-updates/whatsapp-message-has-no-evidentiary-value-without-certificate-under-section-65b4- evidence-act-punjab-haryana-high-court-168488 ,Jan.11th 2021.
for evidence admissibility as long as criteria of their accuracy and reliability is carried out under Sec.2A,2(8), and 4 of BBE Act,1891 pertaining to banking and commercial sector transactions and marks the benchmark for E-records. As special law prevails over the general one Sec.34, Sec.65B are to be constructed and read together with the provisions of the BBE Act for establishing the liability with further proof. Electronic documents are difficult to present in court as they are stored in computer system such as hard-drives, CPUs, cameras etc. and physically can’t be movable for evidence presentation, under such situations secondary evidence in respect of same are valid, hence to be admitted and it is the duty of the court to establish justice for the same. Apart from that RBI notification dated 24th April 2014 directs the bank to instruct all it branches to stay in tune with respect of submission of certified copies and printouts as evidence in compliance with BBE Act, upon failure to which it is to be rejected by court even if marked as exhibit for the same.
With every and most of the aspects of our life being controlled through digitalization it is also necessary to keep a track on the very authenticity of its efficacy because as it is rightly pointed by HC anything which is in form of electronic are susceptible to be tamper with, misuse, hacking etc which can cause a great difficulty in imparting justice to cases where the question of its wrongful nature does not even exist so until and unless a greater challenge does not arises of the same secondary documents are to be made admissible. However, resort can be taken via cross-examination under sec. 45A (opinion of examiner) which provides 79A of IT,2000 that Central government needs to notify the examiner for the same purpose as well.18 Under Sec.3(2) of IEA it establishes that any document provided in relation of electronic records for inspection are considered to be documentary evidence. Therefore, while dealingwith electronic related matter sheer care is to taken to avoid any injustice as the medium for storing information in this 21st century is technological based and that is ever increasing and never decreasing.
CHPATER-VI BIBLIOGRAPHY AND REFERENCES
• JUSTICE M.R. MALLICK, CRIMINAL MANUAL, 1, (Criminal Manual 2019).
• Indian Institute of Banking & Finance, Legal & Regulatory Aspects of Banking,297 (3rd ed. 2019).
18 The Information Technology Act,2000, S,79A, No.21, Acts of Parliamnet(India).
• Anvar P.V. v. P.K. Basheer 2015 SC 180
• Arjun Panditrao Khotkar Vs. Kailashkushanrao Gorantyal And Others (2020) 7 SCC 1
• Central Bureau of Investigation Vs. V.C Shukla & Ors 1998 SC
• Chandrahdar Goswami Vs. Guhati Bank Ltd. 1967 SC 1058.
• ELI Lilly v. Maiden Pharmaceuticals 2017 (161) DRJ 65
• Harpal Singh v. State of Punjab 2016 SC 5389
• ICICI v. Kapil Dev Sharma 2018 HC RFA 299
• Kundan Singh v. State I 2016 CCR1 (Del.)
• Om Prakash v. Central Bureau of Investigation 2017 VII AD (Del) 649
• The Information Technology Act,2000.
• The Bankers Book of Evidence Act, 1891.
INTERNET SOURCES (WEBSITES):
• Reserve Bank of India, https://www.rbi.org.in/ScriptS/NotificationUser.aspx?Id=4954&Mode=0 ,11th Jan. 2021.
• Vijay Pal Dalmia, India: Evidentiary Value of Bank Records (July 9, 2019), https://www.mondaq.com/india/financial-services/823596/evidentiary-value-of-bank-records.
• Livelaw news network, whatsapp message has no evidentiary value without certificate
,Livelaw.in, Jan 17th 2020 9:59AM, https://www.livelaw.in/news-updates/whatsapp-message- has-no-evidentiary-value-without-certificate-under-section-65b4-evidence-act-punjab-