Legality of whatsapp chats between business partners

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21 August 2023 Does Indian judiciary accept whatsapp chats between business partners as evidence? Recently there was an Apex Court ruling whatsapp chats between business partners governed by agreements are not admissible as evidence in courts.

Asha Kanta Sharma

Asha Kanta Sharma (Expert)
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26 August 2023 WhatsApp messages as evidence
Technology has become an indispensable aspect of our everyday lives. Throughout humankind's existence, we have perceived how web-based services are being utilized in committing a crime and other wrongdoings. On the premises that WhatsApp has become a verb, let's discuss WhatsApp Chats' suitability in a courtroom.

As a means of communication, the utilization of WhatsApp by the organization's employee is quickly expanding. For close collaboration with partners and customers, WhatsApp is viewed as the best reasonable informing stage for the representatives. In the wake of seeing the expanding utilization of online media platforms like WhatsApp, the Court started to admit texts and pictures sent on these platforms as Evidence in criminal and civil issues.

There are some particular principles by which WhatsApp content ought to be referred to as evidence in the Court. In Indian courts, WhatsApp chats are viewed as an electronic record and are permissible as a conventional document.

There are some conditions which should be satisfied for the admissibility of WhatsApp messages as Evidence:
The recipient should have received the messages, i.e. in the context of WhatsApp, double ticks.
The telephone should be in regular use. It ought not to be damaged.
The sender should have the intention to send those messages.

WhatsApp Chats: Primary or Secondary Evidence?
In Girwar Singh v. CBI, electronic evidence was introduced before the Court, for which a committee was appointed to check the authenticity of the electronic evidence. Later, the committee found that the evidence wasn't the original one or the copy of the original. The evidence was copied numerous times in different devices. Consequently, the Delhi H.C. held the electronic evidence was unacceptable in that case.

Here, it should be noticed that the presentation of evidence which has been copied from an original document is known as Secondary Evidence. Section 63 of the Indian Evidence Act, 1872 states different instances when Evidence is viewed as Secondary Evidence. Then again, Section 62 characterizes Primary Evidence as a document introduced in its original form for the inspection in the Court.

It prompts a relevant inquiry, regardless of whether WhatsApp visits will be considered as Primary or Secondary Evidence?
In the case of Vikas Garg and Ors. v. Territory of Haryana (2017), the High Court depended on WhatsApp chats to hold the accused liable for assault, among different offences. Afterward, the Supreme Court remained the High Court's order for bail, and according to the most recent information accessible, the Special Leave Petition is forthcoming before the Court.
Later in 2018, the Delhi High Court's division bench dismissed an appeal against the acquittal of accused by the Trial Court for offences under Section 376 and 506 of the Indian Penal Code, 1850. The bench considered WhatsApp chats between the parties which were properly admitted by the prosecutrix in interrogation. The Court accepted that the chat content exhibit that the prosecutrix has assented for an actual relationship out of her choice and with no incitement.

A substantial and enforceable understanding can be made by means of WhatsApp
In the case of Shamsudin Bin Mohd. Yosuf v. Suhaila Binti Sulaiman the Court held that in any case, when most of the communication between the parties is done in WhatsApp, there was a substantial oral agreement and is enforceable by law.

The importance of Blue tick on WhatsApp in a legitimate suit
The Bombay High Court, in the case of, SBI Cards and Installment Administrations Pvt. Ltd. v. Rohit Jadhav, observed that the defaulter had gotten the notification in WhatsApp as well as opened that notice. At that point, Bombay High Court held that after sending a message through WhatsApp, if a blue tick appears, then the informing application is viewed as factual verification that the Respondent had gotten that notice which is viewed as legitimate Evidence.

Other important case laws
The Delhi High Court in National Lawyers Campaign for Judicial Transparency and Reforms and Ors Versus Union of India and Ors, 2017, held that a WhatsApp post doesn't qualify as legitimate lawful Evidence under the Evidence Act, particularly when neither the original nor a copy of the first document is delivered.

Unexpectedly, the Bombay High Court held SMS/WhatsApp messages to be allowable under the Court of law under Section 65 of Indian Evidence Act, in the case of SBI Cards and Payment Services Pvt Ltd. versus Rohidas Yadav, settled on June 11 2018. The Court held that messages sent through WhatsApp chats are viewed as legitimate Evidence under the law. The blue tick in WhatsApp is legitimate evidence that the Respondent has acknowledged the communication's physical copy.

Email as Evidence
Abdul Rahaman Kunji Vs. The State of West Bengal:
The High Court of Calcutta while deciding the admissibility of email held that an email downloaded and printed from an individual's email record can be proved under Section 65B r/w Section 88A of Evidence Act. The witnesses' declaration to carry out such a strategy to download and print the same is adequate to prove the electronic communication.

In the case of Smt abc v. Sri cyz, the learned judge held that messages go under the definition'electronic record' under section 2(t) Information Technology Act 2000 admissible as Evidence.

The Delhi High court clarified section 65B in detail and held that the computer output, when provisions of section 65-B are fulfilled, is treated as Evidence of the contents of the original or facts in that direct evidence is admissible. It determines that the onus of proving its originality lies in the individual who tried to create it as Evidence. Electronic Evidence should be accompanied by a certificate according to section 65B of the Act.

Conclusion
Most business firms conduct their meetings on online platforms and contents of those meetings are shared among the representatives through texting platforms like WhatsApp, Telegram and much more. The legal system in India is additionally turning into a technologically developed system one step at a time. Internet informing applicationsare conceded by the Court of law as legitimate evidence.

The penultimate step demonstrates the electronic record/evidence by creating the original electronic media as Primary Evidence court or its copy, as optional proof u/s 65A/65B of Evidence Act. Thus, on account of CD, DVD, Memory Cards and so on containing secondary evidence, the same will be joined by the certificate regarding Section 65B acquired at the time of taking the document, without which, the secondary evidence relating to the electronic record, is forbidden.

Notwithstanding, there are different issues which are emerging relating to the authorship of the certificate. Therefore, WhatsApp chats are never to be conceded in the Court as primary evidence, rather; secondary evidence. While the law on electronic evidence is still in its beginning stage, following the Information Technology Act, 2000, we hope to see significant advancements on this topic in the near future.

Guest

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26 August 2023 Thanks for this detailed informative reply 🙏