Article by Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
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Vivekananda Institute of Professional Studies
Relevancy of bank records
Section 34 of the Indian Evidence Act 1872 elucidates that books of accounts, including Bank records, which are maintained in the daily course of business in electronic form or otherwise are relevant1(CENTRAL BUREAU OF INVESTIGATION V/SV.C. SHUKLA & ORS.) to be admissible in a court of law. For establishing liability of a person, however further proof and Evidence relating the same may have to be submitted2(ISHWAR DASS JAIN (DEAD) THR. LRS. V/S SOHAN LAL (DEAD)BY LRS).
Primary and Secondary form of Evidence
Primary and Secondary both form of Evidence is admissible under the law. Sections 61,62,63,64 65 and 65B of the Indian Evidence Act 1872 deal with the concept pertaining to Primary and Secondary form of Evidence. It is a well settled principle of law that Primary Evidence is given priority over the Secondary Evidence, but in the new era of Digital India, it is not a general practice to store data in written form all the time. Most of the data nowadays are stored electronically on big Servers 3(M/S ICICI BANK LIMITED V/S KAPIL DEV SHARMA), Clouds, etc. with the help of computer programs, making it easily accessible and secure. Now when these documents are to be submitted in a court as Evidence, it becomes practically impossible to bring out these Hard-Drives, Servers or data stored on Cloud pertaining to the concerned party, which is stored along with the data of many other people. Hence, courts have recognized this need to adapt with technology and allowed Secondary Evidence to be submitted in cases where Primary Evidence which is in electronic form is impossible to be produced4(M/S ASHOKA CHEMICALS (INDIA) V/S M/S BHARTIYA HINDU SHUDHI SABHA TRUST ( REGD)).
Banker's Book Evidence Act 1891
This Act tends to illustrate the provisions, which provide for the conditions which are to be followed while submitting bank records as Evidence in a court of law. Section 4 of Banker's Book Evidence Act 1891, deals with the mode of proving such bank records. Bank records should be accompanied by a certificate in accordance with section 2(8) and 2A of the Act. The certificate is to ensure the accuracy and reliability of the entry in banking records. The printout of entry or copy of such printout along with the certificate by the branch manager/principal accountant and the person in charge of the computer resource which generated that entry together makes a "certified copy". A certified copy of any entry of banker's book shall be admissible prima facie as Evidence.
Section 65B is pari materiaui5(OM PRAKASH versus CENTRAL BUREAU OF INVESTIGATION (CBI)) to section 2A of the Banker's Book Evidence Act, which means they are to be construed together. Section 65B of the Act lays down conditions to be followed while admitting Secondary Evidence in electronic form. "Generalia specialibus non derogant", a special law will always prevail over the general law6(Anvar P.V Versus P.K. Basheer and others). Hence it can be construed that even though there is a provision under the Evidence Act dealing with the admissibility of electronic records (65B), section 2A of Banker's Book Evidence Act 1891 specifically deals with the admissibility of banking entries in electronic form. So according to the principle of Generalia Specialibus section 2A of the Act is to be referred while dealing with the admissibility of banking records in electronic form and not section 65B.
Admissibility of Bank Records
On April 24th, 2009 RBI published a notification7 advising State and Central Co-operative Banks to comply with the provisions of Banker's Books Evidence Act, 1891 while furnishing certified copies and computer printouts to courts. The notification further says that if such statutory certification is not complied with, the courts will not be obliged to admit the document in Evidence without any further proof.
When we look from the viewpoint of Judiciary relating to the nature of certification under the Bankers' Books Evidence Act, 1891, the decision of different courts helps us understand the concept better. Bombay High Court in one of its judgement8( Radheshyam G. Garg vs. Safiyabai Ibrahim Lightwalla) held that when a certificate is signed by an agent of bank, validating the records to be a true copy of the original entry in records, which were maintained in usual course of business and were kept in custody of the bank, then in such cases the court should not adopt a hyper-technical view and should not focus on all the conditions provided for certification under section 2(8) of the Act because the detailed ingredients mentioned in the definition clause are only of directory in nature and not mandatory.
Objection for Uncertified Banking Records
The nature of the statutory provisions as discussed above, however, the primary question which bursts out is whether or not an objection pertaining to the admissibility of banking records submitted in court without such certification is possible or not? And if possible, then whether the court will accept such Evidence or not?
These questions are not new! Hence there are some case laws answering the same. Hon'ble Supreme Court in some recent judgments held that an objection, if any, has to be raised relating to the admissibility of a banking record, such objection has to be raised at the time when such record is tendered in Evidence and not after that. The objections can be divided of two types, i.e. (i) an objection that the document which is sought to be proved is itself inadmissible in Evidence; and (ii) where the objection does not dispute the admissibility of the document in Evidence but is directed towards the mode of proof alleging 9(R.V.E. Venkatachala Gounder V/S Arulmigu Viswesaraswami & V.P. Temple & AR). Type (i) objection can be raised even at a later stage when the document is marked as "an exhibit", in appeal or revision. Type (ii) objection has to be raised at the time when that record is presented for Evidence and not after such record is admitted as Evidence and marked as an exhibit. This is due to the rule of fair play. Court says that objection of type (ii) dealing with the mode of proving, should be dealt with, at the first instance because then it would give appropriate time to the submitting party to remove such defect and also they won't assume that the opposite party is not serious about the mode of proof.
There are two more reasons why a prompt objection won't be prejudicial to the party tendering Evidence:
- Enables the court to apply its mind on the question of admissibility then and there.
- The party leading Evidence can ask the court to remove such objection or allow a suitable method of proof.
Test -The crucial test 10(SONU @ AMAR V/S STATE OF HARYANA) to find out whether an objection should be allowed or not depends on the fact that the defect in question could have been cured at the stage of marking the document and the party tendering Evidence could have opted for a regular mode of proof or not?11(R.V.E. Venkatachala Gounder V/S Arulmigu Viswesaraswami & V.P. Temple & AR)
What if the Evidence is inadmissible?
Hon'ble Supreme Court in Om Prakash v. Central Bureau of Investigation12 held that inadmissible Evidence would remain inadmissible even if marked as an exhibit or no objection relating to the admissibility was raised.
Banking records are a valid and reliable source of Evidence. However, for ensuring there accuracy, certification method under the provisions of Banker's Books Evidence Act, 1891 is to be complied with. While certification process, this should be kept in mind that the ingredients under section 2(8) of the Act are the only directory and not mandatory, hence a rigid and highly technical attitude will not be of much use while complying with the provision. If an objection regarding the mode of proof has to be made, it should be at the very stage when such document is tendered in Evidence, before it is marked as an exhibit, and not after that13( M/S ICICI BANK LIMITED V/S KAPIL DEV SHARMA). If a record submitted is inadmissible, it will remain inadmissible whether an objection was raised or not, or whether it was marked as an exhibit.
1. https://www.sci.gov.in/jonew/judis/13380.pdf CENTRAL BUREAU OF INVESTIGATION V/S V.C. SHUKLA & ORS. (Supreme Court of India)
2. https://www.sci.gov.in/jonew/judis/16604.pdf ISHWAR DASS JAIN (DEAD) THR. LRS. V/S SOHAN LAL (DEAD)BY LRS(Supreme Court of India)
3. http://lobis.nic.in/ddir/dhc/PMS/judgement/03-02-2018/PMS31012018RFA2992015.pdf M/S ICICI BANK LIMITED V/S KAPIL DEV SHARMA RFA 299/2015 (HIGH COURT OF DELHI)
4. http://lobis.nic.in/ddir/dhc/RKG/judgement/27-02-2018/RKG19022018CMM1932018.pdf M/S ASHOKA CHEMICALS (INDIA) V/S M/S BHARTIYA HINDU SHUDHI SABHA TRUST ( REGD) CM(M) 193/2018 & CM Nos.6332-6334/2018(HIGH COURT OF DELHI)
5. http://lobis.nic.in/ddir/dhc/MUG/judgement/05-09-2017/MUG05092017CRLA1342016.pdf OM PRAKASH versus CENTRAL BUREAU OF INVESTIGATION (CBI) CRL.A. 134/2016 (HIGH COURT OF DELHI)
6. https://www.sci.gov.in/jonew/judis/41931.pdf Anvar P.V Versus P.K. Basheer and others. CIVIL APPEAL NO. 4226 OF 2012 (Supreme Court of India)
8. Radheshyam G. Garg vs. Safiyabai Ibrahim Lightwalla (19.01.1987 - BOMHC) : MANU/MH/0368/1988 , 1987 SCC OnLine Bom 22 : 1987 Mah LJ 725 : (1987) 3 Bom CR 459 : AIR 1988 Bom 361
9. https://www.sci.gov.in/jonew/judis/19401.pdf R.V.E. Venkatachala Gounder V/S Arulmigu Viswesaraswami & V.P. Temple & AR (Appeal (civil) 10585 of 1996) (Supreme Court of India)
10. https://www.sci.gov.in/supremecourt/2013/2036/2036_2013_Judgement_18-Jul-2017.pdf (Supreme Court of India) CRIMINAL APPEAL No. 1418 of 2013 SONU @ AMAR V/S STATE OF HARYANA
11. https://www.sci.gov.in/jonew/judis/19401.pdf (Supreme Court of India) Appeal (civil) 10585 of 1996 R.V.E. Venkatachala Gounder V/S Arulmigu Viswesaraswami & V.P. Temple & AR
12. http://lobis.nic.in/ddir/dhc/MUG/judgement/05-09-2017/MUG05092017CRLA1342016.pdf (HIGH COURT OF DELHI) CRL.A. 134/2016 OM PRAKASH versus CENTRAL BUREAU OF INVESTIGATION (CBI)
13. http://lobis.nic.in/ddir/dhc/PMS/judgement/03-02-2018/PMS31012018RFA2992015.pdf M/S ICICI BANK LIMITED V/S KAPIL DEV SHARMA RFA 299/2015 (HIGH COURT OF DELHI)
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