The Himachal Pradesh High Court has reaffirmed that the certificate under Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023 is not a mere procedural formality but a mandatory precondition for the admissibility of electronic records as secondary evidence. This ruling clarifies the burden of compliance and reinforces the strict evidentiary standards governing digital proof in civil litigation.
Background & Facts
The Dispute
The plaintiff, Nirmal Malakar, a government contractor, filed Civil Suit No. 33 of 2024 seeking recovery of unpaid amounts for construction and repair work carried out at a hotel owned by Larisa Enterprises Pvt. Ltd. The plaintiff claimed that he had issued sixteen original invoices for the work performed, of which ten were subsequently acknowledged by the defendants through partial payments. The plaintiff filed photocopies of ten invoices with the plaint and sought to prove them as secondary evidence after the defendants refused to produce the originals.
Key Facts
- The plaintiff issued invoices on his own letterhead as a contractor based in Lakkar Bazar
- The defendants denied receiving any of the invoices or the associated emails
- The plaintiff served a notice dated 04.10.2024 under Order 12, Rule 8 CPC demanding production of the original invoices and an email dated 01.10.2019 from Kapil Thakur, Assistant Manager Finance/HR of Larisa Resort
- The email (Annexure P-6) was alleged to have been sent to accounts@larisa.com, purchase@larisa.com, and priya@larisa.com
- The defendants filed a reply denying possession of the original documents and asserting that the invoices were generated and retained solely by the plaintiff
- Priya Thakur, a director of the defendant company, deposed on 27.06.2025 that no invoices were ever received by the company and that the email in question was not generated from their systems
- The plaintiff’s invoices were computer-generated and bore his signature
Procedural History
- 04.10.2024: Plaintiff issued notice under Order 12, Rule 8 CPC demanding production of original invoices and email
- 27.03.2025: Court allowed OMP No. 983/2024 under Order 11, Rule 14 CPC directing defendant No. 2 and Hem Raj to appear
- 27.06.2025: Statement of respondent No. 2 recorded before the Court
- 05.08.2025: Next date fixed for examination of Hem Raj
- 22.04.2026: Application under Sections 60, 62, and 63(4) of BSA for secondary evidence reserved for order
- 01.06.2026: Judgment delivered
Relief Sought
The plaintiff sought permission to prove the following as secondary evidence:
- Proforma invoices No. 1 to 4 and invoices No. 6 to 10 (photocopies filed with plaint)
- The electronic email dated 01.10.2019 (Annexure P-6)
- A certificate under Section 63(4) of BSA to be issued by the defendants, who allegedly possessed the original electronic records
The Legal Issue
The central question was whether the defendants, who allegedly never received or generated the electronic records, can be compelled to produce a certificate under Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023 to enable the plaintiff to prove his own computer-generated invoices and emails as secondary evidence.
Arguments Presented
For the Appellant/Petitioner
The plaintiff argued that since the defendants were in possession of the original electronic records (invoices and email), they were obligated under Sections 60, 62, and 63(4) of BSA to produce the originals or a certificate. He relied on the court’s earlier order under Order 11, Rule 14 CPC directing production and contended that the defendants’ refusal to produce the documents justified the use of secondary evidence. He further argued that the certificate could be issued by a responsible official of the defendant company, even if the records were not generated by them, as long as they were in their possession.
For the Respondent/State
The defendants countered that the invoices and email were generated and retained solely by the plaintiff on his own systems and letterhead. They denied ever receiving the documents and asserted that the email was not sent from their servers. They argued that Section 63(4) applies only when the party seeking to prove the electronic record is not the originator and the original is in the possession of another party. They emphasized that the burden of compliance with Section 63(4) lies on the party seeking to introduce the evidence, not the opposing party.
The Court's Analysis
The Court undertook a detailed analysis of the statutory framework under the Bharatiya Sakshya Adhiniyam, 2023, particularly Sections 63(4) and 63(2), which replaced the earlier provisions of Section 65B of the Indian Evidence Act, 1872. The Court noted that the Supreme Court in Anvar P.V. v. P.K. Basheer and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal had unequivocally held that the certificate under Section 65B (now Section 63(4) BSA) is a condition precedent to admissibility of electronic records as secondary evidence.
"The very admissibility of such a document i.e. electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 63(2) [BSA]."
The Court emphasized that the certificate must be issued by a person occupying a responsible official position in relation to the operation of the device from which the electronic record was produced. The Court held that the plaintiff, as the originator of the invoices and the sender of the email, was the sole custodian of the original electronic records. The invoices bore his letterhead and signature, and the email was sent from his system.
"It cannot be said by any stretch of imagination that the same have been generated from the computer system of the defendants as such the plaintiff cannot shift his burden and compel the defendants to furnish certificate under Section 63(4) of BSA."
The Court further clarified that Section 63(4) applies only when the original electronic record is in the possession of a third party. Where the party seeking to introduce the evidence is the originator, the burden to produce the certificate lies squarely on that party. The defendants, having denied possession and generation of the records, could not be compelled to produce a certificate for documents they never received or created.
The Court also distinguished between primary and secondary evidence: if the plaintiff had produced the original device (e.g., his laptop or server) containing the original electronic record and proved ownership, he could have introduced the evidence as primary evidence under Section 62 BSA. However, by choosing to rely on photocopies and printouts, he invoked the secondary evidence regime under Section 63, which required strict compliance with Section 63(4).
The Verdict
The plaintiff’s application was dismissed. The Court held that the plaintiff failed to comply with the mandatory requirement of Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023. No certificate was produced by the plaintiff, nor could one be compelled from the defendants. Consequently, the photocopies of the invoices and the email printout were inadmissible as secondary evidence. The Court declined to impose costs, taking a lenient view, but made clear that the plaintiff’s failure to comply with statutory requirements would be fatal to his claim.
What This Means For Similar Cases
The Burden of Compliance Rests on the Proponent of Electronic Evidence
- Practitioners must obtain and file a Section 63(4) certificate before seeking to introduce any electronic record as secondary evidence
- The certificate must be issued by a person responsible for the operation of the device that generated the record - not by the opposing party
- If the record was created by your client, you cannot shift the burden to the defendant to produce the certificate
Electronic Records Cannot Be Proved by Oral Testimony or Assumption
- Oral testimony about the existence or content of an electronic record is inadmissible if the certificate is missing
- Courts will not infer possession or generation of electronic records from circumstantial evidence
- Denial of receipt by the opposing party does not relieve the proponent of the obligation to comply with Section 63(4)
Strategic Implications for Civil Litigation
- Always preserve the original device or storage medium containing electronic records
- Obtain a Section 63(4) certificate at the earliest stage - ideally before filing suit
- If the opposing party is the source, file a formal notice under Order 12, Rule 8 CPC and seek court direction for certificate production - but only if they are the originators
- Never rely on printouts or screenshots without a certificate - they are legally inadmissible
