Proving – an “e -doc”

What they don’t teach you in law school is how to prove a document and more particularly how to “prove” a “digital document” ?

Traditionally, proving a document is well understood if it’s proved by the author of the document or by someone familiar with the writing /signature of the author .However the digital document which does not have writing or a signature has caused disruption in set rules of “proving “ a document.

The expression ‘document’ is defined under Section 3(18) as one which include any matter written, expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used, for the purpose of recording that matter. Strangely the archaic definition has not been amended to include an “electronic document”, though an Electronic Document is defined separately under I.T. Act.

An analysis of this issue requires specific references to :-
- Section 3 of Evidence Act for the definition of expression “document”, “proved” ”Disproved”
- Section 2(t) of I.T Act.
- Section 64 & 65B of Evidence Act

Unlike a normal written down document, an electronic document is admissible in proceedings without further proof or production of the original. In other words, once a party in proceedings furnishes a certificate under Section 65B(4) of the Evidence Act, for an electronic record, such records would be accepted as an original document. This has often been accepted as if it requires no further proof, which is not correct. An electronic record still needs to be proved.

To prove an electronic record, same guidelines which are required to prove a written document needs to be followed, albeit with little bit of variation. The primary evidence to prove a document is to identify through the author of the document. To prove an electronic mail (email), besides the certificate under Section 65B, an email ID of author from which e mail is emanating is to be treated at the same pedestal as if the signature on a written document. If an email ID is proved to be not of the author of the email, the presumption under Section 65B must fail.

True, as with a written document, there would be instances of fabrication of electronic record too. A contesting party may fabricate and/or place a false document along with the certification under Section 65B. It is, thus, of extreme importance that the genuineness of an electronic record be always tested and the certification under Section 65B be not taken as sacroscent.

In other words, a contesting party can challenge/disprove electronic documents by oral testimony, written or electronic documents and cross-examining the witness producing an electronic record.

Rajiv Talwar