WhatsApp Chats, Emails From Owner's Personal Device Can Be Proved Through His Own S.65B Evidence Act Certificate: Telangana High Court
The Telangana High Court has held that a party seeking to rely on emails and WhatsApp chats originating from their own personal device is not required to obtain a Section 65B certificate from an external or official authority. It held that the owner and manager of the device can furnish the certificate contemplated under Section 65B(4) of the Indian Evidence Act, 1872. It thus set aside a...
The Telangana High Court has held that a party seeking to rely on emails and WhatsApp chats originating from their own personal device is not required to obtain a Section 65B certificate from an external or official authority.
It held that the owner and manager of the device can furnish the certificate contemplated under Section 65B(4) of the Indian Evidence Act, 1872. It thus set aside a trial court's refusal to receive such electronic evidence.
Allowing the revision petition, Justice Renuka Yara observed:
"Section 65B (4) of the Evidence Act clearly gives alternative course of action for receiving the documents. One is certificate from the official person and the other is the manager, who is in-charge of activities of the object. In the instant case... the options available for the petitioner for receiving the evidence was either to produce the blackberry itself or to produce a certificate certified by him about the origination of the electronic messages and chats from his blackberry instrument, to the best of his knowledge."
Holding that the trial court had misapplied the Supreme Court's decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, the Court further observed:
"The petitioner has followed the second option available i.e. filing his own certificate, to the best of his knowledge, about said WhatsApp chats and emails originating from the blackberry owned by him and managed by him on a daily basis. Therefore, this Court is of the considered opinion that there was an error in application of the legal ratio laid down in Arjun Panditrao Khotkar... resulting in erroneous dismissal of the interlocutory application."
The revision arose from a money recovery suit filed by the respondent, who sought recovery of ₹8 lakh allegedly invested in the petitioner's business under a partnership arrangement, along with profits and interest.
During the stage of the defendant's evidence, the petitioner sought leave under Order VIII Rule 1A(3) CPC to place on record emails exchanged between the parties, emails exchanged with their tax consultant regarding a draft business agreement, WhatsApp conversations between the petitioner and the respondent, and chats exchanged with the respondent's son. To support the electronic records, the petitioner furnished a self-certification under Section 65B of the Evidence Act.
The respondent opposed the application, contending that there were no pleadings regarding the emails or WhatsApp messages in the written statement, that many of the messages were allegedly self-created after institution of the suit, and that the petitioner could not rely on a self-issued Section 65B certificate without certification from a competent authority.
Accepting these objections, the trial court refused to receive the documents, holding that the petitioner had neither produced the original device nor obtained a Section 65B(4) certificate from the concerned authority.
Before the High Court, the petitioner argued that the trial court had misinterpreted Section 65B(4) and the Supreme Court's decision in Arjun Panditrao Khotkar. It was contended that the provision permits certification either by a person occupying a responsible official position or by the person managing the relevant device or activities. Since the emails and WhatsApp chats originated from his own Blackberry mobile phone, his own certificate was legally sufficient.
The High Court first rejected the respondent's contention that there were no pleadings to support the electronic evidence. It noted that paragraph 7 of the written statement specifically referred to emails and SMS communications exchanged between the parties and that the list of documents accompanying the written statement already included screenshots of text messages, WhatsApp chats and copies of emails. It therefore held that there was adequate factual foundation in the pleadings.
The Court also rejected the contention that the documents had been created after institution of the suit. Examining the proposed electronic records, it found that the emails and WhatsApp messages substantially related to November and December 2016, with only a few chats extending into early January 2017, and therefore could not be dismissed as subsequently created documents.
On the objection regarding delay, the Court accepted the petitioner's explanation that he initially expected to confront the respondent with the documents during cross-examination and approached the Court only after the respondent denied the electronic communications. It held that such an explanation could not be regarded as lacking substance.
The High Court concluded that where the electronic records originate from a person's own device, Section 65B(4) permits either production of the original device or production of a certificate by the person managing that device. Since the petitioner had chosen the latter course by certifying that the emails and WhatsApp chats originated from his own Blackberry phone, the trial court had committed an error in rejecting the application.
Accordingly, the High Court allowed the revision petition, set aside the trial court's order dated August 17, 2023, and allowed the application for receiving the emails and WhatsApp chats in evidence.
Case Title: Md. Khalid v. Mohammed Khaja Aijaz Ali
Case No.: Civil Revision Petition No. 3890 of 2024
Appearance: Sri Baglekar Akash Kumar for the petitioner; Sri M.A. Basith for the respondent.