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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

OMP No. 1084/2025

in Civil Suit No. 33 of 2024

Reserved on: 22.04.2026

Decided on: 01.06.2026

Date of Uploading on Website:

01.06.2026

________________________________________________

Nirmal Malakar ....Applicant/plaintiff

Versus

Larisa Enterprises Pvt. Ltd. & Anr.

…Non-applicants/defendants

Coram

The Hon’ble Mr. Justice Sushil Kukreja, Judge.

Whether approved for reporting?

1

Yes.

For the applicant/plaintiff :Mr. B.S. Chauhan, Senior

Advocate with Ms. Aditi Rana,

Advocate.

For the non-applicants/ : Mr. Mohinder Verma, Advocate.

defendants:

Sushil Kukreja, Judge

This order shall dispose of an application filed by

the applicant/plaintiff under Section 60, 62 and 63(4) of

Bharatiya Sakshya Adhiniyam, 2023 (for short “BSA”) for

secondary evidence relating to documents in original in

possession of the defendants. As per the applicant, he has

1

Whether reporters of Local Papers may be allowed to see the judgment?

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filed a Civil Suit for recovery of amount against the

defendants. Before filing the suit, the defendants did make

part payments on different dates to the plaintiff with respect

to construction and repair work carried in the Hotel premises

owned by the defendants. The plaintiff submitted sixteen

invoices in original to the defendants, out of which, photo

copies of ten invoices were filed with the plaint. After going

through the said invoices, the defendants made part

payments to the plaintiff on different dates and year. The

plaintiff realizing the restriction/constraint in proving

photocopies of ten invoices in the Court, the plaintiff issued

notice dated 04.10.2024 under Order 12, Rule 8 CPC to the

defendants through registered post to produce ten invoices

in original and E-mail which was duly served upon the

defendants. However, the defendants, despite having been

duly served with the notice, did not produce those original

invoices and original E-mail. The defendants knowing fully

well that documents are in their possession in original, i.e.

ten invoices and E-mail (Annexure P-6) consciously did not

produce all such documents before the Court, hence, an

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application, i.e. OMP No. 983 of 2024, under Order 11, Rule

14 CPC came to be filed in this Court, which was allowed

vide order dated 27.03.2025 with a direction to defendant

No. 2 and Hem Raj to be present in the Court on the next

date i.e. on 08.05.2025. The statement of respondent No. 2

was recorded on 27.06.2025 and next date in the case was

fixed for 05.08.2025 for examination of Hem Raj. The

applicant has given his best efforts by issuing notice to the

defendants, however, despite that they failed to produce

documents mentioned in the notice. It is therefore prayed

that the documents/proforma invoices No. 1 to 4 and

invoices No. 6 to 10 may be ordered to be proved by

secondary evidence being part of Annexure P-1 filed with the

plaint and original electronic document of Annexure P-6 and

original of E-mail message dated 01.10.2019 generated by

Kapil Thakur, Assistant Manager Finance/HR, Larisa Resort,

Shimla regarding Nirmal Malakar invoice sent to accounts

Larisa, purchase Larisa and Priya Larisa through their

respective E-mails may be ordered to be placed on record

for secondary evidence contained in the computer or

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requisite certificate under Section 63 (4) of the Act may be

ordered to be issued by the competent authority by stepping

into the witness box.

2. Reply to the application has been filed, wherein,

it has been averred that the present application is wholly

misconceived and not maintainable and has been filed

merely to fill up material lacunae in the case. The plaintiff has

suppressed material facts and has deliberately withheld the

originals of the alleged invoices, being his own documents. It

has been further averred that the applicant seeks to misuse

the provisions of BSA, whereas the settled position of law is

that the party relying upon electronic evidence must itself

comply with the mandatory requirement of certificate under

Section 65-B(4) of the Act. It has also been further averred

that issues are yet to be framed and the suit has not been

fixed for evidence. Hence, prayer for dismissal of the

application has been made.

3. I have heard learned Senior Counsel for the

applicants/plaintiff, learned counsel for the non-

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applicants/defendants and also gone through the material

available on record.

4. The Indian Evidence Act, 1872 which is now

replaced by Bhartiya Sakshya Adhiniyam,2023 (hereinafter

referred to as BSA)recognizes electronically stored

information as secondary evidence. Section 65 (B) of the

Indian Evidence Act 1872which is now replaced bySection

63 BSA provides that any information contained in the form

of electronic records shall be admissible as evidence

provided the conditions specified in the section are satisfied.

This section prescribes the mode for proof of contents of

electronic records as secondary evidence. The facility of

proof by secondary evidence would apply to any computer

output which is deemed as a document. According to this

section, when a statement is produced in evidence under this

section, it should be accompanied by a certificate which

should identify the electronic record containing the statement

and describe the manner in which it was produced. Thus, the

application of the best evidence rule in relation to electronic

records has been modified by the statutory provision in

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Section 63 BSA which provides that computer output

whether printed or copied shall be admissible without the

need to adduce further proof by production of the original

document if the conditions mentioned in the Section 63 BSA

are satisfied in relation to the information and computer in

question. Thus for proof of any electronic evidence, the

conditions mentioned in Section 63 BSA are to be duly

complied with.

5. The position of law in respect of the requirement

of Sec.65B certificate is no longer res integra. In Anvar P.V.

vs. P.K. Basheer & ors., (2014) 10 SCC,473 it has been held

that Section 65B of the Indian Evidence Act is a complete

code and being a special provision, would prevail over the

general provisions of that Act in respect of admissibility of

secondary evidence. Hon’ble Supreme Court has held

thatIndian Evidence Act, 1872 does not contemplate or

permit the proof of an electronic record by oral evidence if

requirements Under Section 65B of the Evidence Act are not

complied with. The court discussed the law relating to

admissibility of electronic evidence and held that Sections 63

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and 65 of Indian Evidence Act,1872 have no application in

the case of secondary evidence by way of electronic record;

the same is wholly governed by Sections 65A and 65Bof the

Evidence Act. Some of the paragraphs of the said judgment

are reproduced as under:

"14. Any documentary evidence by way of an electronic

record under the Evidence Act, in view of Sections 59

and 65-A, can be proved only in accordance with the

procedure prescribed under Section 65-B. Section 65-B

deals with the admissibility of the electronic record. The

purpose of these provisions is to sanctify secondary

evidence in electronic form, generated by a computer. It

may be noted that the section starts with a non obstante

clause. Thus, notwithstanding anything contained in the

Evidence Act, any information contained in an electronic

record which is printed on a paper, stored, recorded or

copied in optical or magnetic media produced by a

computer shall be deemed to be a document only if the

conditions mentioned under sub- section (2) are satisfied,

without further proof or production of the original. 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 65-

B(2). Following are the specified conditions under

Section 65-B(2) of the Evidence Act:

(i) The electronic record containing the information

should have been produced by the computer

during the period over which the same was

regularly used to store or process information for

the purpose of any activity regularly carried on

over that period by the person having lawful

control over the use of that computer;

(ii) The information of the kind contained in

electronic record or of the kind from which the

information is derived was regularly fed into the

computer in the ordinary course of the said

activity;

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(iii) During the material part of the said period, the

computer was operating properly and that even if it

was not operating properly for some time, the

break or breaks had not affected either the record

or the accuracy of its contents; and

(iv) The information contained in the record should

be a reproduction or derivation from the

information fed into the computer in the ordinary

course of the said activity.

15. Under Section 65-B(4) of the Evidence Act, if it is

desired to give a statement in any proceedings pertaining

to an electronic record, it is permissible provided the

following conditions are satisfied:

(a) There must be a certificate which identifies the

electronic record containing the statement;

(b) The certificate must describe the manner in

which the electronic record was produced;

(c) The certificate must furnish the particulars of

the device involved in the production of that

record;

(d) The certificate must deal with the applicable

conditions mentioned under Section 65-B(2) of the

Evidence Act; and

(e) The certificate must be signed by a person

occupying a responsible official position in relation

to the operation of the relevant device.

16. It is further clarified that the person need only to state in

the certificate that the same is to the best of his knowledge

and belief. Most importantly, such a certificate must

accompany the electronic record like computer printout,

compact disc (CD), video compact disc (VCD), pen drive,

etc., pertaining to which a statement is sought to be given in

evidence, when the same is produced in evidence. All these

safeguards are taken to ensure the source and authenticity,

which are the two hallmarks pertaining to electronic record

sought to be used as evidence. Electronic records being

more susceptible to tampering, alteration, transposition,

excision, etc. without such safeguards, the whole trial based

on proof of electronic records can lead to travesty of justice.

17. Only if the electronic record is duly produced in terms of

Section 65B of the Evidence Act, the question would arise as

to the genuineness thereof and in that situation, resort can be

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made to Section 45A - opinion of examiner of electronic

evidence.

18. The Evidence Act does not contemplate or permit the

proof of an electronic record by oral evidence if requirements

under Section 65B of the Evidence Act are not complied with,

as the law now stands in India.

…… … … … … … … … …

20. Proof of electronic record is a special provision

introduced by the IT Act amending various provisions under

the Evidence Act. The very caption of Section 65A of the

Evidence Act, read with Sections 59 and 65B is sufficient to

hold that the special provisions on evidence relating to

electronic record shall be governed by the procedure

prescribed under Section 65B of the Evidence Act. That is a

complete code in itself. Being a special law, the general law

under Sections 63 and 65 has to yield.

…… … … … … … … … …

22. The evidence relating to electronic record, as noted

herein before, being a special provision, the general law on

secondary evidence under Section 63 read with Section 65 of

the Evidence Act shall yield to the same.

Generaliaspecialibus non derogant, special law will always

prevail over the general law. It appears, the court omitted to

take note of Sections 59 and 65A dealing with the

admissibility of electronic record. Sections 63 and 65 have no

application in the case of secondary evidence by way of

electronic record; the same is wholly governed by Sections

65A and 65B. To that extent, the statement of law on

admissibility of secondary evidence pertaining to electronic

record, as stated by this court in Navjot Sandhu case (supra),

does not lay down the correct legal position. It requires to be

overruled and we do so. An electronic record by way of

secondary evidence shall not be admitted in evidence unless

the requirements under Section 65B are satisfied. Thus, in

the case of CD, VCD, chip, etc., the same shall be

accompanied by the certificate in terms of Section 65B

obtained at the time of taking the document, without which,

the secondary evidence pertaining to that electronic record, is

inadmissible."

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7. The aforesaid judgment was duly affirmed and

clarified in the case of Arjun Panditrao Khotkar Vs. Kailash

Kushanrao Gorantyal and others'” reported in (2020) 7

Supreme Court Cases 1 wherein it has been held that

certificate required under section 65B (4) of the Evidence Act

is a condition precedent to admissibility of evidence by way of

electronic record. It has been held as follows:

"26. It is now appropriate to examine the manner in which

Section 65B was interpreted by this Court. In Anvar P.V.

(supra), a three Judge Bench of this Court, after setting

out Sections 65A and 65B of the Evidence Act, held:

“14. Any documentary evidence by way of an

electronic record under the Evidence Act, in view

of Sections 59 and 65-A, can be proved only in

accordance with the procedure prescribed under

Section 65-B. Section 65-B deals with the

admissibility of the electronic record. The purpose

of these provisions is to sanctify secondary

evidence in electronic form, generated by a

computer. It may be noted that the section starts

with a non obstante clause. Thus, notwithstanding

anything contained in the Evidence Act, any

information contained in an electronic record

which is printed on a paper, stored, recorded or

copied in optical or magnetic media produced by a

computer shall be deemed to be a document only

if the conditions mentioned under sub-section (2)

are satisfied, without further proof or production of

the original.”… … … …

… … … … … … … …

32. Coming back to Section 65-B of the Evidence

Act, sub-section (1) needs to be analysed. The

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sub-section begins with a non obstante clause,

and then goes on to mention information

contained in an electronic record produced by a

computer, which is, by a deeming fiction, then

made a “document”. This deeming fiction only

takes effect if the further conditions mentioned in

the section are satisfied in relation to both the

information and the computer in question; and if

such conditions are met, the “document” shall then

be admissible in any proceedings. The words “…

without further proof or production of the original

…” make it clear that once the deeming fiction is

given effect by the fulfilment of the conditions

mentioned in the section, the “deemed document”

now becomes admissible in evidence without

further proof or production of the original as

evidence of any contents of the original, or of any

fact stated therein of which direct evidence would

be admissible.

33. The non obstante clause in sub-section (1)

makes it clear that when it comes to information

contained in an electronic record, admissibility and

proof thereof must follow the drill of Section 65-B,

which is a special provision in this behalf —

Sections 62 to 65 being irrelevant for this purpose.

However, Section 65-B(1) clearly differentiates

between the “original” document — which would

be the original “electronic record” contained in the

“computer” in which the original information is first

stored — and the computer output containing such

information, which then may be treated as

evidence of the contents of the “original”

document. All this necessarily shows that Section

65-B differentiates between the original

information contained in the “computer” itself and

copies made therefrom — the former being

primary evidence, and the latter being secondary

evidence.

34. Quite obviously, the requisite certificate in sub-

section (4) is unnecessary if the original document

itself is produced. This can be done by the owner

of a laptop computer, a computer tablet or even a

mobile phone, by stepping into the witness box

and proving that the device concerned, on which

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the original information is first stored, is owned

and/or operated by him. In cases where “the

computer”, as defined, happens to be a part of a

“computer system” or “computer network” (as

defined in the Information Technology Act, 2000)

and it becomes impossible to physically bring such

network or system to the court, then the only

means of proving information contained in such

electronic record can be in accordance with

Section 65-B(1), together with the requisite

certificate under Section 65-B(4). This being the

case, it is necessary to clarify what is contained in

the last sentence in para 24 of Anvar P.V. [Anvar

P.V. v. P.K. Basheer, (2014) 10 SCC 473 which

reads as “… if an electronic record as such is used

as primary evidence under Section 62 of the

Evidence Act …”. This may more appropriately be

read without the words “under Section 62 of the

Evidence Act,…”. With this minor clarification, the

law stated in para 24 of Anvar P.V. does not need

to be revisited.

9. The above discussion would make it clear that

requirement of certificate u/s Sec. 63 of BSA is not a mere

procedural requirement concerning the mode of proof. It is a

strict legal requirement which is a precondition for

admissibility of secondary evidence of information contained

in an electronic record. In the absence of a certificate u/s

Sec. 63(4) of BSA, the information contained in an electronic

record would not fall within the definition of "document" under

Section 2(1)d of that Act and would be inherently

inadmissible as evidence. The only exception envisaged to

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this proposition is when the electronic record contained in the

computer/device on which the original information is first

stored, is itself is produced before the Court by the owner

thereof who proves that the said computer/device is owned

and/or operated by him.

10. In the instant case,admittedly the invoices have

been issued by the plaintiff in favour of the defendant No.1

company, whereas, the case of the defendants is that they

had never received any such invoices. It has specifically

been averred by the applicant-plaintiff in para-2 of the plaint

that ‘the plaintiff had issued invoices for the works executed

on different dates in favour of defendant No.1-company,

which were duly received and acknowledged by the project

supervisor as per the detail given in the plaint’. The

defendants, in their written statement, have specifically

denied the issuance of invoices referred to by the plaintiff in

para-2 of the plaint, or having been shared with the

defendants prior to the filing of the present suit. In pursuance

to the directions of this Court, Priya Thakur, one of the

Directors of the defendants-company, appeared and

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specifically deposed on oath before this Court that no

invoices were issued by the plaintiff to them for the civil

construction works carried by him. She also deposed that the

invoices mentioned in para-2 of the plaint were neither sent

to them by the plaintiff, nor they had received any such

invoices. The defendants have denied that data in question

has been generated in their computer system. The

defendants have also denied that they were ever in the

possession of the original invoices or E-mails.

11. The applicant-plaintiff has also produced on

record invoices, perusal of which shows that these are

computer generated documents and the same have been

issued by the plaintiff, namely, Nirmal Malakar, Government

Contractor, Lakkar Bazar on his own letter head and have

also been signed by him. Since the invoices have admittedly

been issued by the plaintiff on his own letter head and the

same are his own documents, therefore, 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

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defendants to furnish certificate under Section 63(4) of BSA.

Hence, no direction can be issued to the defendants to

furnish necessary certificate with respect to the invoices and

email in question, as prayed by the applicant/plaintiff.

12. In the light of the above-said dictums of the

Hon’ble Supreme Court, it is manifest that the invoices being

secondary evidence of the electronic record, requires

certification under Section 63(4) of BSA in order to admit the

same in evidence. In other words, without Section 63(4) of

BSA certification, there is no question of the invoices being

admitted in evidence and relied upon. Hence, in the absence

of Section 63(4) certification, prayer made by the

applicant/plaintiff for leading secondary evidence is

misconceived and cannot be allowed, as the applicant, who

is relying upon the proforma invoices No. 1 to 4 and invoices

No. 6 to 10, has to comply with the mandatory requirements

of Section 63(4) of BSA which is a specific statutory

requirement to make a secondary electronic record

admissible as evidence.

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13. Consequently, the present application, being

devoid of any merits deserves dismissal and the same is

dismissed accordingly. Though, in the opinion of this Court,

the application deserves to be dismissed with costs,

however, taking a lenient view, no costs are being imposed

at this stage.

( Sushil Kukreja )

Judge

1

st

June, 2026

(raman)