This document summarizes key points about electronic evidence in India from a presentation given by Adv. Prashant Mali. It discusses a case where electronic evidence was relied upon to convict someone of a crime. It also outlines the conditions for admissibility of electronic records as evidence under Section 65-B of Indian law. Additionally, it discusses various forensic labs where electronic records can be examined, precedents around email and call records as evidence, and requirements for electronic records from banks to be admitted as evidence.

1. Fraud Investigation & Control Summit 2012
Electronic Evidence
in India
Adv. Prashant Mali [BSc.(Phy.), MS(Comp. Sci.), CNA, LLB]
Speaker, Author & Expert
President – Cyber Law Consulting
Cyber Law & Cyber Security Expert

2. Electronic Evidence
• Mohinder Sharma, a resident of Budhpur in
northwest Delhi was Sent to 20 years of
Imprisonment and 1.02 Lakhs Penalty was
charged.”Electronic Evidence was Relied upon”
• Mohinder Sharma V/S State Delhi HC
• Surveillance with the help of its unique
international mobile equipment identity (IMEI)
number and was found being used by Sharma
with a different SIM. He had destroyed the
original SIM.

3. Admissibility of Electronic Records
• Section 65-B (Admissibility of Electronic Records)
–any information contained in an electronic record which is printed on a paper,
stored, recorded or copies in optical or magnetic media produced by a computer
(hereinafter referred to as the computer output) shall be deemed to be also a
document
– Conditions for admissibility
• the computer output containing the information was produced by the computer
during the period over which the computer was used regularly to store or
process information for the purposes of any activities regularly carried on over
that periodby the person having lawful control over the use of the computer;
• during the said period, information of the kind contained in the electronic record
or of the kind from which the information so contained is derived was regularly
fedinto the computer in the ordinary course of the said activities;
• throughout the material part of the said period, the computer was operating
properly or, if not; then in respect of any period in which it was not operating
properly or was out of operation during that part of the period, was not such as to
affect the electronic record or the accuracy of its contents;
• the information contained in the electronic record reproduces oris derived from
such information fed into the computer in the ordinary course of the said
activities.

4. Admissibility of Electronic Records
• Section 65-B (Admissibility of Electronic Records)
–Making statements:
In any proceedings where it is desired to give a statement in evidence
by virtue of this section, a certificate doing any of the following things,
that is to say-
(a)identifying the electronic record containing the statement and
describing the manner in which it was produced;
(b)giving such particulars of any device involved in the production of that
electronic record as may be appropriate for the purpose of showing
that the electronic record was produced by a computer;
(c)dealing with any of the matters to which the conditions mentioned in
sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official
position in relation to the operation of the relevant device or the
management of the relevant activities (whichever is appropriate)
shall be evidence of any matter sufficient for a matter to be stated to the
best of knowledge and belief of the person stating it.

5. Forensics Labs
• Cyber Forensics Labs where electronic
records can be taken for obtaining
certificate:
• –3 Labs at Hyderabad
• –1 Lab at Trivandrum
• –1 Lab at CBI, Delhi
• –1 Lab at Himachal
• –1 Lab at Ahmadabad
• –1 Lab at Mumbai

6. Computer Printouts Admissible
• State (NCT of Delhi) v. NavjotSandhu, SAR Gilani& Ors.
(AIR 2005 SUPREME COURT 3820)
• It is not in dispute that the information contained in the call records is
stored in huge servers which cannot be easily moved and produced in the
Court. That is what the High Court has also observed at para 276. Hence,
printouts taken from the computers/servers by mechanical process and
certified by a responsible official of the service providing Company can be
led into evidence through a witness who can identify the signatures of the
certifying officer or otherwise speak to the facts based on his personal
knowledge. Irrespective of the compliance of the requirements of Section
65B which is a provision dealing with admissibility of electronic records,
there is no bar to adducing secondary evidence under the other provisions
of the Evidence Act, namely Sections 63 and 65.
• Above all, the printouts pertaining to the call details exhibited by the
prosecution are of such regularity and continuity that it would be legitimate
to draw a presumption that the system was functional and the output was
produced by the computer in regular use, whether this fact was specifically
deposed to by the witness or not.

7. Case Law on Email as evidence
M/s. P. R. Transport Agency v. Union of India
(AIR 2006 ALLAHABAD 23)
Thus, the acceptance of the tender,
communicated by the respondents to the
petitioner by e-mail, will be deemed to be
received by the petitioner at Varanasi or
Chandauli, which are the only two places where
the petitioner has his place of business

8. Case Law – Electronic Record
Dharambir vs CBI (pronounced on 11thMarch 2008)
• Certain data (i.e. call records) were copied from Hard Disk
to a CD.
• Cyber Forensics Lab in Hyderabad confirmed that the
recorded data (i.e. call conversation) on CD were true
copies of the originals and that the Hard Disk was in
working condition.
• A question came: difference between “electronic device”
and “electronic record”.. It was held that if the electronic
device has ever recorded any data which is relevant for a
case, such “electronic device” shall be treated as
“electronic record” for the purpose of evidence.
• Scope of definition of the word “data” was contended and
was held that “data” would include active memory as well
as subcutaneous memory

9. Evidence –Bankers’ Books Evidence Act, 1891
• What is permissible as evidence?A “certified copy”of any
entry in a banker's book shall in all legal proceedings be
received as prima facie evidence of the original entry itself.
{Section 4}
• What are banker’s book in electronic form?Any record
stored in a micro film, magnetic tape or in any other form of
mechanical or electronic data retrieval mechanism, either onsite
or at any offsite location including a back-up or disaster
recovery site of both. {Section 2(3)}
• How a certified copy of electronic record be obtained?
{Section 2(8)}
–A copy obtained through mechanical process can be certified
if acertificate of the principal accountant or the manager of the
bank.
–A printout containing a certificate in accordance with Section
2A.

10. Evidence –Bankers’ Books Evidence Act, 1891
• Nature of certificate for a copy obtained through mechanical
process:
A certificate from principal accountant or manager of the branch that the
mechanical or other process adopted to obtain the copy has ensured the
accuracy of the copy.
• Nature of certificate for a copy obtained through mechanical
process:
Authenticity certificate from principal accountant or branch manager, AND
Certificate from person in-charge of computer system regarding
•Details of computer system
•Process of data storage
•Safeguard to protect computer system and data
• A further certificate from the person in-charge of the computer system to
the effect that to the best of his knowledge and behalf, such computer
system operated properly at the material time, he was provided with all
the relevant data and the printout in question represents correctly, or is
appropriately derived from, the relevant data.

11. Evidence –Bankers’ Books Evidence Act, 1891
State Bank of India vs. Rizvi Exports Ltd (DRT, Allahabad)
• State Bank of India (SBI) had filed a case to recover
money from some persons who had taken various loans
from it.
• As part of the evidence, SBI submitted printouts of
statement of accounts maintained in SBI’s computer
systems.
• The relevant certificates as mandated by the Bankers
Books of Evidence Act (as amended by Information
Technology Act) had not been attached to these printouts.
• The Court held that these documents were not admissible
as evidence.

12. THANKYOU
Adv. Prashant Mali [BSc.(Phy.), MSc.(Computer Sci.),LLB]
President - Cyber Law Consulting
Author, Speaker & Expert
Mob: 09821763157
facebook.com/cyberlawconsultant
Web : www.prashantmali.com
www.cyberlawconsulting.com