PART 1: WHAT IS DIGITAL EVIDENCE?

As per Sec 2(1)(d) IT Act, 2000 + Sec 2(e) BSA, 2023 - Any information, document, record, email, SMS, WhatsApp chat, UPI transaction log, CCTV footage, call data, server log, mobile app data stored in electronic form.

Digital Evidence = Documentary Evidence under law, but with special rules for admissibility.

4 Legal Standards for Admissibility of Digital Evidence:

1. Authenticity - Is it what it claims to be?
2. Integrity - Has it been tampered? No alteration after collection.
3. Reliability - System was working properly when record was created.
4. Legality - Collected by lawful means, chain of custody maintained.

If any one fails, evidence is inadmissible.

PART 2: STATUTORY FRAMEWORK IN INDIA

A. Under Old Indian Evidence Act, 1872 (Still asked in exams)

Section 65A & 65B - Special provisions for Electronic Records:

Sec 65A: Contents of electronic records may be proved as per Sec 65B.

Sec 65B: Admissibility of Electronic Record - Deemed to be a document if 4 conditions satisfied:
a) Computer output was produced by computer used regularly to store/process information in regular course of activity.
b) Information of kind regularly fed into computer in ordinary course.
c) Computer was operating properly during material period. If not, defect did not affect accuracy.
d) Information reproduced is derived from regular feeding.

Most Important - Sec 65B(4) Certificate:
A certificate identifying the electronic record, describing manner of production, giving particulars of device, signed by person in charge of device. WITHOUT this certificate, electronic record is inadmissible. It is mandatory.

B. Under New Bharatiya Sakshya Adhiniyam, 2023 (BSA) - NEW LAW

Old 65B is now Section 63 BSA, with major changes:

Section 63 BSA, 2023:

1. Scope expanded: Sec 63(1) - Electronic record includes file, email, server log, WhatsApp, locational evidence, etc. explicitly defined.
2. Primary vs Secondary: Electronic records are now considered Primary Evidence under Sec 57 BSA if hash value is preserved. This is new.
3. Certificate - Sec 63(4) BSA: Now has two parts:
   • Part A: To be filled by party producing evidence.
   • Part B: To be given by Expert - Must contain Hash Value (SHA-256) and certificate from Expert under Sec 39(1) - Examiner of Electronic Evidence.
   • Under old law any person could give certificate. Under BSA, certificate by expert is mandatory for secondary electronic evidence.

Section 62 BSA: Presumption that output of a secure system is not altered - If system has access control, it is presumed to be genuine.

Section 61 BSA: Electronic records admissible as documents - No need to prove original if hash matches.

Section 39 BSA: Admissibility of opinion of Examiner of Electronic Evidence (Sec 79A IT Act notified labs - CFSL Hyderabad, etc.)

Other Sections:

• Sec 24 BSA - Admission by electronic form is relevant (e.g., admission in email).
• Sec 41 BSA - Expert opinion on electronic evidence.
• Sec 166 BSA - Presumption as to electronic messages - If email shown to have been sent from a person's account, court presumes it was sent by him.

IT Act, 2000 Support:

• Sec 79A - Central Govt notifies Examiner of Electronic Evidence.
• Sec 65 IT Act - Tampering of computer source documents.

PART 3: PROCEDURE - CHAIN OF CUSTODY

This is tested practically. For mobile banking logs to be admissible:

1. Collection: Use write-blocker, take forensic image with FTK Imager / EnCase. Generate hash (MD5, SHA-256) at time of seizure.
2. Seizure Panchnama: Under Sec 105 BNSS (old 165 CrPC).
3. Certificate: Produce Sec 63(4) BSA certificate with hash at time of producing in court.
4. Examination: By CERT-In empanelled lab.

If bank does not produce certificate for its own server logs, its case fails.

PART 4: LANDMARK CASE LAWS - YOU MUST WRITE THESE 7

1. Anvar P.V. vs P.K. Basheer (2014) 10 SCC 473 - THE FOUNDATION
Facts: Election petition, CD containing video of speech.
Held by Supreme Court (3 judges): Sec 65B certificate is mandatory. Without certificate, electronic record is inadmissible, even if oral evidence proves it. Overruled earlier State (NCT of Delhi) vs Navjot Sandhu (2005) which said certificate not mandatory if original produced.
Ratio: 65B is a special law, it overrides general law of secondary evidence (Sec 65).

2. Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal (2020) 7 SCC 1 - LATEST & MOST IMPORTANT
Facts: Election case, video evidence without certificate.
Held by SC (3 judges bench, overruled Shafhi Mohammad):

• Certificate under 65B(4) is mandatory even if original computer is produced.
• If person in charge of device refuses to give certificate, party can summon him under Sec 91 CrPC / Sec 94 BNSS and court can compel.
• For bank records where system is with bank, customer can apply to court to direct bank to give certificate.
• Clarified that certificate can be produced at any stage, not necessarily with chargesheet.

This judgment is now codified in Sec 63 BSA - Court can call for certificate.

3. Tomaso Bruno & Anr vs State of UP (2015) 7 SCC 178
Facts: Murder case, CCTV footage not produced by prosecution.
Held: Prosecution's failure to produce CCTV footage which was best evidence - Adverse inference under Sec 114(g) Evidence Act. Prosecution must produce electronic evidence if available. Used heavily in digital banking fraud - If bank does not produce server logs/CCTV of ATM, adverse inference against bank.

4. State vs Navjot Sandhu @ Afsan Guru (Parliament Attack Case) (2005)
Facts: Call data records, intercepted calls.
Held: Though pre-Anvar, court accepted secondary electronic evidence without certificate if original device produced. This view was overruled by Anvar, but still important to show evolution.

5. Shafhi Mohammad vs State of HP (2018) 2 SCC 801 - Overruled but asked
Facts: SC said if person not in possession of device (e.g., victim of mobile fraud), certificate not mandatory and court can relax.
Held in Khotkar (2020): This judgment is overruled. Certificate is always mandatory. Party must try to get certificate from person in possession.

6. Ravinder Singh @ Kaku vs State of Punjab (2022) - Mobile Banking Fraud
Facts: Accused did mobile banking fraud via phone. CDR and tower location relied.
Held: CDR without 65B certificate inadmissible. Police produced certificate from Nodal Officer of Airtel but did not prove system was regularly used. Conviction set aside.

7. William Stephen vs State (Delhi HC 2023) - WhatsApp & UPI Evidence
Facts: UPI transaction screenshot and WhatsApp chat produced without hash.
Held: Screenshot is secondary electronic evidence. Without Sec 63 BSA certificate with hash, inadmissible. Court acquitted accused in digital payment fraud.

Bonus - Banking Specific:
Smruti Tukaram Badade vs State of Maharashtra (2022) on Video Conferencing: SC held evidence recorded via video conferencing under Sec 167 is valid electronic record if 65B certificate complied.

PART 5: HOW TO PROVE MOBILE BANKING EVIDENCE IN COURT - PRACTICAL CHECKLIST

If you are a bank lawyer/customer lawyer:

For Bank Server Log / UPI Log / IMPS Log:

1. Take printout + produce certificate under Sec 63(4) BSA Part B from Bank's IT Head stating: "Server XYZ was under my control, working properly, hash is ABC"
2. Preserve hash value.

For Customer's Mobile Phone / Screenshot:

1. Seize phone, generate hash.
2. Produce certificate from forensic examiner + owner of phone.

For WhatsApp/Email:

1. Sec 63(4) certificate + Sec 166 presumption - If shown from person's ID, presumes he sent it unless rebutted.

Failure Consequence:
Anvar + Khotkar rule: No certificate = Document cannot be looked into at all. It is not a curable defect.

Quick Table for Exam: