Late e-evidence certificate allowed, but at a cost

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He filed the digital evidence first. The certificate came later. The court allowed it—but with a warning that could make the whole thing useless.

The courtroom fell silent as the certificate was produced. Eli Lilly and Co had sued Maiden Pharmaceuticals Ltd, and the case turned on electronic records—emails, digital contracts, server logs—that now dominate commercial litigation. But there was a problem the plaintiff had created for itself.

Under Section 65B of the Indian Evidence Act, any electronic record (a document stored on a computer, phone, or server) is not admissible unless accompanied by a certificate signed by someone who can explain how the device produced that record. Think of it as a passport for your digital evidence: without it, the document cannot enter the courtroom.

The plaintiffs filed the electronic records first. The certificate came later. The opposing side objected: you cannot bring the passport after the traveller has already crossed the border.

When the passport arrived after the traveller

Eli Lilly and Co had sued Maiden Pharmaceuticals Ltd. The case turned on electronic records—the kind of evidence that now dominates commercial litigation. But the plaintiffs had filed the records before filing the Section 65B certificate. The defendant pounced.

Indian courts had been split on this question. Some benches held that a Section 65B certificate must accompany the electronic record at the time of filing—no exceptions. Others took a more flexible view, saying the certificate could be filed later if the court allowed it. The court had to pick a side, and it did so by applying principles from the case of Kundan Singh v State—a decision that had grappled with the same tension between procedural form and substantive justice.

What each side argued

The plaintiffs said: procedural defects should not shut out relevant evidence. The law, they argued, was meant to ensure authenticity, not to create technical traps. The court listened, but the defendant had a sharp counter.

The defendant countered: the certificate is not a mere formality. It is the foundation on which the entire electronic record rests. File it late, and you undermine the very purpose of the requirement—to verify that the record is genuine before the court sees it. The certificate, they insisted, is the lock and key; without it, the record is a closed box that should never be opened.

The court's answer—and its warning

The court held that subsequent filing is possible, applying principles from the case of Kundan Singh v State. A party can file the Section 65B certificate after the electronic record, provided they make a case for why the delay should be excused. The judge did not shut the door.

But then came the warning. The judge's tone sharpened as he issued the caution. The court said that belated filing exposes the proponent to a serious risk: the person who can identify the device or give particulars about how the record was generated might not be available by the time the certificate is filed. Even if they are available, the certificate may "not withstand the cross-examination by the opposing counsel." If the party fails to satisfy the court about the delay, or if the deponent (the person signing the certificate) is found incompetent under cross-examination, the electronic record "shall also not be read."

The court did not stop there. It went further, declaring that the proof of a belated certificate is deemed to be "much more stringent" than other documents. This is not a minor procedural note—it is a substantive burden that shifts the entire weight of proof onto the party seeking to admit the evidence.

The much more stringent test

Here is the critical point the court declared: the proof of a belated certificate is deemed to be "much more stringent" than other documents. This is not just a procedural hurdle—it is a substantive burden. When you file the certificate late, you are not just asking the court to overlook a delay. You are asking the court to trust that the electronic record is genuine, even though you did not provide the foundational proof at the right time. The court will now scrutinise the certificate—and the person who signed it—with far greater intensity.

What does this mean in practice? Imagine you are a company that has exchanged hundreds of emails with a business partner. You file those emails in court. Months later, you realise you forgot the Section 65B certificate. You rush to get it signed by your IT manager. But by then, the IT manager has left the company. Or his memory has faded. The opposing lawyer, during cross-examination, picks apart his testimony about which server stored the emails and who had access to it. The IT manager hesitates on the stand, unable to recall the exact server configuration. If the court finds the certificate unreliable, the emails vanish from the record—even though they are the heart of your case.

The court's logic rests on a simple principle: the certificate is the key that unlocks the electronic record. Without it, the record is a locked box. File the certificate late, and you force the court to examine the key under a magnifying glass. The deponent—the person who signed the certificate—must now satisfy the court that the delay was justified, that the device was properly identified, and that the record has not been tampered with. Cross-examination becomes the crucible. If the deponent falters, the record falls.

Consider the practical burden. The deponent must explain the functioning of the computer or server that produced the record. They must describe the software, the access logs, the chain of custody. When the certificate is filed late, the deponent's memory may have faded. The server logs may have been overwritten. The IT manager may have moved to another job. The court will weigh all these factors against the party seeking to admit the record.

The warning from the court is not theoretical. It is a direct instruction to every litigant: file the certificate on time, or risk losing your evidence entirely. The court may allow a late filing, but it will not lower the bar for proof. On the contrary, it raises the bar significantly.

The principles from Kundan Singh v State

The court's reasoning drew heavily on Kundan Singh v State, a case that had examined the same tension between procedural flexibility and the integrity of electronic evidence. In that case, the court had held that while belated filing is not automatically barred, it triggers a heightened scrutiny. The deponent must explain not only the delay but also the continued reliability of the electronic record. The court in the present case adopted that logic wholesale, making it clear that Kundan Singh v State provides the framework for assessing belated certificates.

What does Kundan Singh v State add? It establishes that the court must examine three things when a certificate is filed late: first, whether the delay is adequately explained; second, whether the deponent is still competent to identify the device and the record; and third, whether the record itself has remained untainted during the gap. If any of these three elements fails, the electronic record cannot be read. The present court applied these very principles, reinforcing that the burden is on the party seeking admission.

The cross-examination crucible

Let us walk through a cross-examination scenario. The deponent—say, the IT manager—takes the stand. The opposing counsel begins: "When did you last access this server?" The IT manager pauses. "Six months ago," he says. "And you signed this certificate last week?" "Yes." "So you are relying on memory from six months ago to certify a record that was generated two years ago?" The IT manager shifts in his seat. "I have notes," he says. "But the notes are not part of the certificate, are they?" The counsel presses. The court watches. Every hesitation, every vague answer chips away at the certificate's credibility. If the deponent cannot recall the exact server, the software version, or the access logs, the court may find the certificate unreliable. And then the electronic record—the emails, the contracts, the logs—disappears from the case.

This is the risk the court warned about. The certificate may "not withstand the cross-examination by the opposing counsel." The phrase is not a throwaway line—it is a direct prediction of what happens when the deponent is unprepared or unavailable. The court has seen it happen. It is telling every litigant: do not let this be you.

The message for every litigant

For lawyers and parties dealing with electronic evidence, the message is clear: file the Section 65B certificate at the same time as the electronic record. Do not wait. Do not assume you can fix it later. The court may allow a late filing, but the cost is a much tougher battle to prove authenticity.

The case of Eli Lilly and Co v Maiden Pharmaceuticals Ltd is a civil trial, but the principles apply broadly to any proceeding involving electronic evidence. Whether you are in a commercial dispute, a criminal trial, or a family law matter, the same rule applies: the certificate must accompany the record, or you face an uphill battle.

The court ended where it began: with a passport that arrived too late, and a judge who let it through—but only after making the traveller prove, under the harshest light, that the document was real. The courtroom, once silent when the certificate was produced, now echoed with the weight of that warning.

THE PLAY: File the Section 65B certificate simultaneously with every electronic record—a belated certificate shifts the burden of proof onto you and exposes your evidence to fatal cross-examination.

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