Section 138 of the Bharatiya Sakshya Adhiniyam, (BSA), 2023
Section 138 of the Bharatiya Sakshya Adhiniyam, 2023
The Bharatiya Sakshya Adhiniyam, 2023 (BSA, 2023) is India’s law governing evidence in legal proceedings, replacing the older Evidence Act provisions in certain contexts. Section 138 deals specifically with the presumption about electronic records.
Textual Meaning of Section 138 (Simplified)
Section 138 states that:
If an electronic record is produced by a computer, digital device, or electronic system, and it is shown that the record has been regularly maintained or generated in the normal course of business or official duty, then the record shall be presumed to be authentic unless proven otherwise.
Breakdown of Key Terms
Electronic record:
Includes any data, file, message, or document stored, received, or transmitted in electronic form. Examples: emails, digital invoices, e-health records, or government databases.
Regularly maintained/produced:
The record must be part of the normal course of business.
For example, a company’s accounting software generating invoices every day, or a hospital maintaining patient records digitally.
Presumption of authenticity:
Courts assume the record is genuine and correct.
The burden shifts to the opposite party to prove the record is altered, fabricated, or unreliable.
Burden of proof:
Normally, proving authenticity of electronic records required technical evidence.
Section 138 simplifies this by creating a legal presumption if proper procedures are followed.
Practical Implications
Facilitates faster litigation:
Electronic records can be admitted without lengthy proof of origin or genuineness if maintained properly.
Encourages proper record-keeping:
Companies, banks, and government offices must maintain accurate electronic records, as these are presumed authentic in court.
Shifts evidentiary burden:
Once authenticity is presumed, the party challenging the record must prove manipulation or forgery.
Illustration / Example
Bank Statement Case:
A person files a case for loan default.
The bank produces an e-bank statement generated from its system.
Section 138 allows the court to presume the statement is authentic if it is shown that the bank regularly maintains such records.
Hospital Records Case:
A patient claims medical negligence.
The hospital produces digital patient records maintained daily.
Section 138 allows the court to accept these records as authentic unless the patient proves tampering.
Key Takeaways
Section 138 is about presumption of authenticity of electronic records.
It reduces the burden on institutions to prove every step of record creation.
It shifts the challenge to the opposing party to prove falsification.
Applies to all digital and electronic evidence used in civil or criminal proceedings.
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