Friday, January 23, 2015

Omission to produce CCTV footage raises doubts about prosecution case:SC

The Supreme Court of India in Tomaso Bruno & Anr. Vs. State of U.P. dated 20-01-2015 viewed that "omission to produce CCTV footage which is the best evidence, raises serious doubts about the prosecution case."

A full bench of Justices Anil R. Dave, Kurian Joseph and R. Banumathi held that "to invoke Section 106 of the Evidence Act, the main point to be established by the prosecution is that the accused persons were present in the hotel room at the relevant time.

Hotel Manager stated that CCTV cameras are installed in the boundaries, near the reception, in the kitchen, in the restaurant and all three floors. Since CCTV cameras were installed in the prominent places, CCTV footage would have been best evidence to prove whether the accused remained inside the room and whether or not they have gone out.

CCTV footage is a strong piece of evidence which would have indicated whether the accused remained inside the hotel and whether they were responsible for the commission of a crime. It would have also shown whether or not the accused had gone out of the hotel.

CCTV footage being a crucial piece of evidence, it is for the prosecution to have produced the best evidence which is missing. Omission to produce CCTV footage, in our view, which is the best evidence, raises serious doubts about the prosecution case." Court added.
Allowing the appeal and setting aside the convictions of the accused under Section 302/34 IPC the Court further held that:

With the advancement of information technology, scientific temper in the individual and at the institutional level is to pervade the methods of investigation. With the increasing impact of technology in everyday life and as a result, the production of electronic evidence in cases has become relevant to establish the guilt of the accused or the liability of the defendant.

Electronic documents strictu sensu are admitted as material evidence. With the amendment to the Indian Evidence Act in 2000, Sections 65A and 65B were introduced into Chapter V relating to documentary evidence. Section 65A provides that contents of electronic records may be admitted as evidence if the criteria provided in Section 65B is complied with.

The computer generated electronic records in evidence are admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act. Sub-section (1) of Section 65B makes admissible as a document, paper print out of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfilment of the conditions specified in sub-section (2) of Section 65B.

Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act. PW-13 stated that he saw the full video recording of the fateful night in the CCTV camera, but he has not recorded the same in the case diary as nothing substantial to be adduced as evidence was present in it.

Production of scientific and electronic evidence in court as contemplated under Section 65B of the Evidence Act is of great help to the investigating agency and also to the prosecution.
Relevance of electronic evidence

The trial court in its judgment held that non-collection of CCTV footage, incomplete site plan, non-inclusion of all records and sim details of mobile phones seized from the accused are instances of faulty investigation and the same would not affect the prosecution case. Non-production of CCTV footage, noncollection of call records (details) and sim details of mobile phones seized from the accused cannot be said to be mere instances of faulty investigation but amount to withholding of best evidence. It is not the case of the prosecution that CCTV footage could not be lifted or a CD copy could not be made.

As per Section 114 (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 (g) of the Evidence Act is only a permissible inference and not a necessary inference.

Unlike presumption under Section 139 of Negotiable Instruments Act, where the court has no option but to draw statutory presumption under Section 114 of the Evidence Act.

Under Section 114 of the Evidence Act, the Court has the option; the court may or may not raise presumption on the proof of certain facts. Drawing of presumption under Section 114 (g) of Evidence Act depends upon the nature of fact required to be proved and its importance in the controversy, the usual mode of proving it; the nature, quality and cogency of the evidence which has not been produced and its accessibility to the party concerned, all of which have to be taken into account. It is only when all these matters are duly considered that an adverse inference can be drawn against the party.

The High Court held that even though the appellants alleged that the footage of CCTV is being concealed by the prosecution for the reasons best known to the prosecution, the accused did not invoke Section 233 Cr.P.C. and they did not make any application for production of CCTV camera footage.

The High Court further observed that the accused were not able to discredit the testimony of PW-1, PW-12 and PW-13 qua there being no relevant material in the CCTV camera footage. Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, prosecution in possession of the best evidence–CCTV footage ought to have produced the same.

In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced.

In the present case, the courts below have not properly appreciated the evidence and the gap in the chain of circumstances sought to be established by the prosecution. The courts below have ignored the importance of best evidence i.e. CCTV camera in the instant case and also have not noticed the absence of symptoms of strangulation in the medical reports.

Upon consideration of the facts and circumstances of the case, we are of the view that the circumstances and the evidence adduced by the prosecution do not form a complete chain pointing to the guilt of the accused and the benefit of doubt is to be given to the accused and the conviction of the appellants is liable to be set aside", the Court Said..

Thursday, January 22, 2015

What if Police Station Doesn't File Your FIR in Cyber Crime/fraud matters?

When A Police Station do not File your FIR in any Cyber Crime Matter what to do ? 
Step 1. Write down the complaint and submit it in the ACP/DCP /SP office and take acknowledgement copy or send the complaint via post.Wait for 10-15 days.
Step 2, If action is not taken yet then send the complaint to Commissioner /IG of Police in the same above manner. Procedure is mentioned under 154(3) of Cr.P.C.
Step 3. You can directly approach to the " CONCERNED" Magistrate of that Police Station with your Written "COMPLAINT".as per section 200 of the Cr.P.C.
The Procedure is very simple:
(i) First you prepare your "PRIVATE COMPLAINT" as per the format for the alleged offences, attach all the documents along with your complaint separately as "LIST OF DOCUMENTS/EXHIBITS", and mention names of the witnesses to the alleged offences in your complaint in  "LIST OF WITNESSES/EXHIBITS", then approaching to the "CONCERNED" Magistrate who is granted with Jurisdiction of that Police Station, file your complaint in the "PRESENCE" of "COMPLAINANT" with the help of an Advocate.
(ii) Then on your Complaint, if and only if  the Magistrate considers, would verify documents and either direct you to produce witnesses  (Complainant/Witnesses as per List) on the same day or any other day  to record the "EVIDENCE".
(iii) After recording of such Evidence, Magistrate may directly "ORDER"  for issuance of "SUMMONS" to the "ACCUSED".  
Step 3(a)
For The Complaints,  If filed Under Section 200  Read With Sec.156 (3) of the Cr.P.c.
(a) Then,  on your Complaint, if and only if  the Magistrate considers, may either direct you to produce witnesses  ( Complainant/Witnesses as per List) on the same day or any other day  to record the "EVIDENCE".
(b) After recording of such Evidence, Or otherwise Magistrate may " REFER/SEND YOUR COMPLAINT TO THE CONCERNED POLICE STATION" with the directions to
(i) Register a "FIR" U/S. 154 of Cr.P.C on this Complaint for the Alleged Offences against Accused 
(ii) Investigate the matter 
(iii) Submit Report.
Note: People or Organisations who had approached me for filing a FIR related to Cyber Crime/fraud, my success rate has remained 95%, but lawyer is not always required as he charges professional legal fees for all services from drafting, consultation to liasoning with police. 
Feedback: | Twitter: @CyberMahaGuru

Communication with Cyber Terrorist

Communication with Cyber Terrorist
Direct messaging techniques use “counter narratives” to directly undermine and refute cyber terrorist 
messages, denigrate messengers, or disturb those within violent extremists’ ranks. Such techniques
include refutation, denigration, condemnation, and agitation. These can be effective when targeting
mobilized audiences by creating confusion, distraction, or paranoia among extremists, as well as
preventing the further spread of extremist narratives by embroiling extremist communicators in
defensive argumentation. They can also prevent the ceding of ground to extremists by offering a
competing response and by reducing the incentive to spread extremist ideas by making them appear
less defensible or appealing. There are risks to such messages, however, which include the possibility
of inadvertently bringing attention to extremist narratives, and forcing cyber terrorist communicators to engage on the latter’s terms. Actually changing the minds of mobilized audiences through counter messaging is difficult, however. Adherents to extremist narratives who have acted upon them tend to be strongly
resistant to counter evidence or direct argumentation, according to narrative theory. Direct
confrontation often creates more resistance to change in individuals with deep-rooted beliefs, which
risks further entrenching extremist beliefs. This is especially the case for mobilized audiences consisting of hard-line extremists who have acted upon their beliefs, thus solidifying and further embedding these attitudes. In contrast, radicalized audiences those who agree with the violent extremist narrative but have not yet engaged in supporting activities may be shakier in their beliefs and possibly more open to counter argumentation. In such cases, direct messaging techniques can be employed to trigger enough uncertainty to deter them from mobilizing to violence.
Often, however, indirect messaging techniques may be more effective in changing the minds of radicalized audiences. Indirect techniques use “alternative narratives,” designed to distract from or supplant the adversary’s narrative without directly referencing it and to galvanize non-participatory audiences against it. These narratives work by indirectly destabilizing the credibility and appeal of extremist arguments, rather than directly challenging them through argumentation. Extremist narratives are oversimplified and reductionist, which serves as both a strength and a weakness. While extremist narratives are simple enough to be easily understood and spread, their simplicity makes them brittle and vulnerable to destabilization in the face of additional details, complexities, and alternate explanations that can inspire curiosity and uncertainty among the
adherents. By introducing complexity into extremist narratives, these techniques gradually deflate
their appeal by fracturing the underlying belief system, triggering doubt among radicalized audiences.
However, doubt and curiosity can only grow in the adherent when they aren’t feeling threatened,
according to narrative theory, implying that alternative narratives which aren’t confrontational, but
rather seek to add new information, could be most effective. Government-directed efforts to employ
indirect messaging are difficult, however. Such messaging requires a deep understanding of the culture, as well as credibility with audiences who may be deeply suspicious of the government. As a result, it may require partnering with local messengers and engaging in capacity building to train credible communicators. Such techniques also tend to require continuous, intensive efforts to build relationships, trust, and the necessary nuance to succeed. They are long-term strategies that seek to cause change through a gradual insertion of doubt, and as such, are less useful for crisis communication immediately following an event. Communications with cyber terrorist are most effective when integrated with complementary policy actions that reinforce and extend the messaging themes, but often matching words to actions can be nonviable. At times, the best course of action may even be “strategic silence” when a communication response could exacerbate matters.

Taxation of E-Commerce

The Taxation of E-Commerce will depend on the business model adopted by the Company.Let me try to explain 2 types of E-Commerce transition and taxation for the same.

1.   Business to Customer 
In this type of business model, the E-Commerce Company sells goods directly to customer. In this case Sales Tax is charged on sale of goods. 

How goods taxed and what is Sales Tax?
Sales tax is a tax which is levied on sale of goods, constitution of India empowers state to levy tax on sale or purchase of goods.

Type of Sales

a)    Interstate Sale 

When sale or purchase is made from one state to another it is governed by Central Sales Tax Act 1956, the rate applicable for particular goods will be taxed according. (i.e 1%, 2%, 4%, 12.5%)
Note: Industrial inputs are taxed at moderate rate & Luxury goods are usually taxed at higher percent 
b)   Intrastate Sale

If buyer and seller are situated in the same state, the taxation will be as per the Local Sales tax as per the state law.( Ex. In Karnataka the tax rates are 1%, 2%, 5.5%, 14.5%)
c)    Export Sale

Any export sale made is exempt from Sales tax.

Suppose a customer orders a goods from Bangalore, and the E-Commerce company is having a place of business in Delhi, one the sale of goods CST is charged as per Central Sale Tax Act 1956( i.e 1%, 2%, 4%, 12.5%) 
2.   Customer to Customer 
In this case websites doesn't sell goods directly but they bring buyer and seller together and in turn charges commission. This commission in turn is a service fee and service tax has to be collected from the E-commerce company. Hence there is no concept of Sales Tax in this type of transaction.

Wednesday, January 21, 2015

Electronic Evidence / Digital Evidence Case Laws and Cyber Law in India

Electronic Evidence/Digital Evidence & Cyber Law with case laws in India                                            By Adv. Prashant Mali [MSc.(Computer Science),LLB, LLM], Cyber Law & Cyber Security Expert. Email
The proliferation of computers and the influence of information technology on society as whole, coupled with the ability to store and amass information in digital form have all necessitated amendments in Indian law, to incorporate the provisions on the appreciation of digital evidence. The Information Technology Act, 2000 and its amendment is based on the United Nations Commission on International Trade Law (UNCITRAL) model Law on Electronic Commerce. The Information Technology (IT) Act 2000, was amended to allow for the admissibility of digital evidence. An amendment to the Indian Evidence Act 1872, the Indian Penal Code 1860 and the Banker's Book Evidence Act 1891 provides the legislative framework for transactions in electronic world. Digital evidence or electronic evidence is any probative information stored or transmitted in digital form that a party to a court case may use at trial. Before accepting digital evidence it is vital that the determination of its relevance, veracity and authenticity be ascertained by the court and to establish if the fact is hearsay or a copy is preferred to the original. Digital Evidence is “information of probative value that is stored or transmitted in binary form”. Evidence is not only limited to that found on computers but may also extend to include evidence on digital devices such as telecommunication or electronic multimedia devices. The e-EVIDENCE can be found in e-mails, digital photographs, ATM transaction logs, word processing, documents, instant message histories, files saved from accounting programs, spreadsheets, internet browser histories databases, Contents of computer memory, Computer backups, Computer printouts, Global Positioning System tracks, Logs from a hotel’s electronic door locks, Digital video or audio files. Digital Evidence tends to be more voluminous, more difficult to destroy, easily modified, easily duplicated, potentially more expressive and more readily available.
Computer forensics is a branch of forensic science pertaining to legal evidence found in computers and digital storage mediums. Computer forensics is also known as digital forensics. The goal of computer forensics is to explain the current state of a digital artifact. The term digital artifact can include: A computer system storage medium (hard disk or CD-ROM) an electronic document (e.g. an email message or JPEG image) or even a sequence of packets moving over a computer network.
The definition of 'evidence' has been amended to include electronic records. The definition of 'documentary evidence' has been amended to include all documents, including electronic records produced for inspection by the court. Section 3 of the Evidence Act, 1872 defines evidence as under: "Evidence" - Evidence means and includes:- 1) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; 2) all documents including electronic records produced for the inspection of the court. Such documents are called documentary evidence.
The term 'electronic records' has been given the same meaning as that assigned to it under the IT Act. IT Act provides for "data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche". The definition of 'admission' (Section 17 of the Evidence Act) has been changed to include a statement in oral, documentary or electronic form which suggests an inference to any fact at issue or of relevance. New Section 22-A has been inserted into Evidence Act, to provide for the relevancy of oral evidence regarding the contents of electronic records. It provides that oral admissions regarding the contents of electronic records are not relevant unless the genuineness of the electronic records produced is in question. The definition of 'evidence' has been amended to include electronic records. The definition of 'documentary evidence' has been amended to include all documents, including electronic records produced for inspection by the court. New sections 65-A and 65-B are introduced to the Evidence Act, under the Second Schedule to the IT Act. Section 65-A provides that the contents of electronic records may be proved in accordance with the provisions of Section 65-B. Section 65-B provides that notwithstanding anything contained in the Evidence Act, any information contained in an electronic, is deemed to be a document and is admissible in evidence without further proof of the original's production, provided that the conditions set out in Section 65-B are satisfied. The conditions specified in Section 65-B (2) are:
  1. Firstly, the computer output containing the information should have been produced by the computer during the period over which the computer was used regularly to store or process information for the purpose of any activities regularly carried on over that period by the person having lawful control over the use of the computer.
  2. The second requirement is that it must be shown that during the said period the information of the kind contained in electronic record or of the kind from which the information contained is derived was 'regularly fed into the computer in the ordinary course of the said activity'.
  3. A third requirement is that 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 that break did not affect either the record or the accuracy of its contents.
  4. The fourth requirement is that the information contained in the record should be a reproduction or derived from the information fed into the computer in the ordinary course of the said activity.
Under Section 65-B(4) the certificate which identifies the electronic record containing the statement and describes the manner in which it was produced giving the particulars of the device involved in the production of that record and deals with the conditions mentioned in Section 65-B(2) and is signed by a person occupying a responsible official position in relation to the operation of the relevant device 'shall be evidence of any matter stated in the certificate’.
Section 65-B(1) states that if any information contained in an electronic record produced from a computer (known as computer output) has been copied on to a optical or magnetic media, then such electronic record that has been copied 'shall be deemed to be also a document' subject to conditions set out in Section 65-B(2) being satisfied. Both in relation to the information as well as the computer in question such document 'shall be admissible in any proceedings when 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.'
  1. Ignatius Topy Pereira Vs. Travel Corporation (India) Pvt. Ltd and another, 2016 SCC Online Bom 97 (Hon. Shri Justice S.B. Shukre). Fresh Certificate S.65B, Evidence Act: If the certificate under S.65B, Evidence Act which was produced was rejected as not compliance with the Section, fresh certificate may be produced.

  2. Rajesh Dhannalal Daware Vs. State of Maharashtra {Bombay High Court, 5 May 2016}Evidence Act, 1872 - Section 65-B - Footage of CCTV Camera - Under S. 65B(4) 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 65B(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.
  3. Raj Kumar v. State, CRL.A. 232/16, 19.4.16 DHC
    S.65-B of Evidence Act, 1872: Mobile Phone- Since the mobile phone of witness (containing the photograph) itself was produced in the Court and exhibited, there was no need of a certificate under Section 65-B Indian Evidence Act- The evidence is admissible. 
  4. Amitabh Bagchi Vs. Ena Bagchi (AIR 2005 Cal 11) [Sections 65-A and 65-B of Evidence Act, 1872 were analyzed.] The court held that the physical presence of person in Court may not be required for purpose of adducing evidence and the same can be done through medium like video conferencing. Sections 65-A and 65-B provide provisions for evidences relating to electronic records and admissibility of electronic records, and that definition of electronic records includes video conferencing.
  5. State of Maharashtra vs. Dr Praful B Desai (AIR 2003 SC 2053) [The question involved whether a witness can be examined by means of a video conference.] The Supreme Court observed that video conferencing is an advancement of science and technology which permits seeing, hearing and talking with someone who is not physically present with the same facility and ease as if they were physically present. The legal requirement for the presence of the witness does not mean actual physical presence. The court allowed the examination of a witness through video conferencing and concluded that there is no reason why the examination of a witness by video conferencing should not be an essential part of electronic evidence.
  6. BODALA MURALI KRISHNA VS. SMT. BODALA PRATHIMA (2007 (2) ALD 72) The court held that, “…the amendments carried to the Evidence Act by introduction of Sections 65-A and 65-B are in relation to the electronic record. Sections 67-A and 73-A were introduced as regards proof and verification of digital signatures. As regards presumption to be drawn about such records, Sections 85-A, 85-B, 85-C, 88-A and 90-A were added. These provisions are referred only to demonstrate that the emphasis, at present, is to recognize the electronic records and digital signatures, as admissible pieces of evidence.”
  7. DHARAMBIR Vs. CENTRAL BUREAU OF INVESTIGATION (148 (2008) DLT 289).The court arrived at the conclusion that when Section 65-B talks of an electronic record produced by a computer referred to as the computer output) it would also include a hard disc in which information was stored or was earlier stored or continues to be stored. It distinguished as there being two levels of an electronic record. One is the hard disc which once used itself becomes an electronic record in relation to the information regarding the changes the hard disc has been subject to and which information is retrievable from the hard disc by using a software program. The other level of electronic record is the active accessible information recorded in the hard disc in the form of a text file, or sound file or a video file etc. Such information that is accessible can be converted or copied as such to another magnetic or electronic device like a CD, pen drive etc. Even a blank hard disc which contains no information but was once used for recording information can also be copied by producing a cloned had or a mirror image.
  8. STATE (NCT OF DELHI) Vs. NAVJOT SANDHU (AIR 2005 SC 3820) There was an appeal against conviction following the attack on Parliament on December 13 2001. This case dealt with the proof and admissibility of mobile telephone call records. While considering the appeal against the accused for attacking Parliament, a submission was made on behalf of the accused that no reliance could be placed on the mobile telephone call records, because the prosecution had failed to produce the relevant certificate under Section 65-B(4) of the Evidence Act. The Supreme Court concluded that a cross-examination of the competent witness acquainted with the functioning of the computer during the relevant time and the manner in which the printouts of the call records were taken was sufficient to prove the call records.
  9. JAGJIT SINGH Vs. STATE OF HARYANA ((2006) 11 SCC 1) The speaker of the Legislative Assembly of the State of Haryana disqualified a member for defection. When hearing the matter, the Supreme Court considered the digital evidence in the form of interview transcripts from the Zee News television channel, the Aaj Tak television channel and the Haryana News of Punjab Today television channel. The court determined that the electronic evidence placed on record was admissible and upheld the reliance placed by the speaker on the recorded interview when reaching the conclusion that the voices recorded on the CD were those of the persons taking action. The Supreme Court found no infirmity in the speaker's reliance on the digital evidence and the conclusions reached by him. The comments in this case indicate a trend emerging in Indian courts: judges are beginning to recognize and appreciate the importance of digital evidence in legal proceedings.
  10. TWENTIETH CENTURY FOX FILM CORPORATION Vs. NRI FILM PRODUCTION ASSOCIATES (P) LTD. (AIR 2003 KANT 148) In this case certain conditions have been laid down for video-recording of evidence:
  • Before a witness is examined in terms of the Audio-Video Link, witness is to file an affidavit or an undertaking duly verified before a notary or a Judge that the person who is shown as the witness is the same person as who is going to depose on the screen. A copy is to be made available to the other side. (Identification Affidavit).
  • The person who examines the witness on the screen is also to file an affidavit/undertaking before examining the witness with a copy to the other side with regard to identification.
  • The witness has to be examined during working hours of Indian Courts. Oath is to be administered through the media.
  • The witness should not plead any inconvenience on account of time different between India and USA.
  • Before examination of the witness, a set of plaint, written statement and other documents must be sent to the witness so that the witness has acquaintance with the documents and an acknowledgement is to be filed before the Court in this regard.
  • Learned Judge is to record such remarks as is material regarding the demur of the witness while on the screen.
  • Learned Judge must note the objections raised during recording of witness and to decide the same at the time of arguments.
  • After recording the evidence, the same is to be sent to the witness and his signature is to be obtained in the presence of a Notary Public and thereafter it forms part of the record of the suit proceedings.
  • The visual is to be recorded and the record would be at both ends. The witness also is to be alone at the time of visual conference and notary is to certificate to this effect.
  • The learned Judge may also impose such other conditions as are necessary in a given set of facts.
  • The expenses and the arrangements are to be borne by the applicant who wants this facility. 

9.  ANVAR P.V. VERSUS, P.K. BASHEER AND OTHERS, in CIVIL APPEAL NO. 4226 OF 2012 decided on Sept., 18, 2014, That Computer Output is not admissible without Compliance of 65B,EA overrules the judgment laid down in the State (NCT of Delhi) v. Navjot Sandhu alias Afzal Guru[(2005) 11 SCC 600 by the two judge Bench of the Supreme Court. The court specifically observed that the Judgment of Navjot Sandhu supra, to the extent, the statement of the law on admissibility of electronic evidence pertaining to electronic record of this court, does not lay down correct position and is required to be overruled. This judgment has put to rest the controversies arising from the various conflicting judgments and thereby provided a guideline regarding the practices being followed in the various High Courts and the Trial Court as to the admissibility of the Electronic Evidences. The legal interpretation by the court of the following Sections 22A, 45A, 59, 65A & 65B of the Evidence Act has confirmed that the stored data in CD/DVD/Pen Drive is not admissible without a certificate u/s 65 B(4) of Evidence Act and further clarified that in absence of such a certificate, the oral evidence to prove existence of such electronic evidence and the expert view under section 45A Evidence Act cannot be availed to prove authenticity thereof.

In the Judgment, the Hon’ble Supreme Court has held that Section 65B of the Evidence Act being a ‘not obstante clause’ would override the general law on secondary evidence under Section 63 and 65 of the Evidence Act. The section 63 and section 65 of the Evidence Act have no application to the secondary evidence of the electronic evidence and same shall be wholly governed by the Section 65A and 65B of the Evidence Act.
The only alternative to prove the electronic record/evidence is by producing the original electronic media as Primary Evidence to the court or it’s copy by way secondary evidence u/s 65A/65B of Evidence Act. 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. In the present case, the court observed that:
“The appellant admittedly has not produced any certificate in terms of Section 65B in respect of the CDs, Exhibits-P4, P8, P9, P10, P12, P13, P15, P20 and P22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and speeches fall to the ground.”
This judgment will have severe implications in all the cases where the prosecution relies heavily on the electronic data specially those cases where the audio-video recordings are produced in the form of CD/DVD before the court. The anticorruption cases are generally based on a lot of electronic / digital evidence and the CD/DVD forwarded to the courts are without a certificate and shall therefore not be admissible as evidence u/s 65B Evidence Act, which makes it mandatory to produce a certificate u/s 65 B(4). The failure to provide the certificate u/s 65 B(4). further occludes the judicial process as the expert view in that matter cannot be availed of till the preceding condition is fulfilled. It has been specified in the judgment that Genuineness, Veracity or Reliability of the evidence is looked into by the court subsequently only after the relevance and admissibility is fulfilled. The requirement to ensure the source and authenticity, pertaining to electronic records is because it is more vulnerable to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to mockery of justice.
The original recording in Digital Voice Recorders/mobile phones need to be preserved as they may get destroyed, in such a case the issuance of certificate under section 65B(4) of the Evidence Act cannot be given. Therefore such CD/DVD is inadmissible and cannot be exhibited as evidence, the oral testimony or expert opinion is also barred and the recording/data in the CD/DVD’s do not serve any purpose for the conviction.
CONCLUSION: The progression of the Indian evidence law is apparent as it has withstood the pressures and challenges of technology and the cyber world. The appropriate amendments in Evidence Law, incorporated by our judiciary show pro-activism. In my opinion the law enforcement agencies and investigating officers have to update themselves about the authentication process prescribed by the court regarding the admissibility of electronic/digital evidences so that impediments in trial procedures can be successfully overcome. Proper training of law enforcement agencies in handling cyber related evidence and correct application of procedure and sections of Evidence Law while presenting such evidence in court is the primary need of recent times. Common man in the role of a complainant should be now aware that while submitting evidence to police or courts, he should submit it with a certificate under section 65B(4) of The Indian Evidence Act so the court takes cognizance and reads it as a primary evidence.

Landmark 6 cases won by Advocate Prashant Mali of Online Banking Fraud and Credit card frauds

Thursday, January 15, 2015

Mobile Phone SIM Swap or SIM Exchange fraud and how to protect your selves?

Mobile Phone SIM Swap or SIM Exchange fraud and how to protect your selves? By Prashant Mali

I have clients who have lost Rs. 1,25 Crores to Rs. 30,000/- in SIM Exchange/Swap fraud and mind it no one was computer illiterate. As the name suggests, someone may buy a new SIM from the same network provider and start to operate all your banking transactions. The bank will not differentiate between you and the fraudster. Because the account is operating from the same number. Even mobile operator are also unable to track such frauds and sometimes abet the crime by faulty KYC Checking.

SIM Swap Fraud
Let us see each step one by one.
1) Fraudsters gather your information-The first step they do is to gather your personal information. Usually, they try to access your personal information by way of phishing, Vishing, Smishing or any through the Trojans / Malware. They try to gather your banking details.
2) Fraudsters visit mobile operator to block your SIM-They approach mobile operator with genuine customer fake ID proof and request operator to block the SIM. They provide the reason as loss of handset or SIM damage.
3) Issuance of new SIM to fraudster-After due verification, a mobile operator issues a new SIM with the same number to a fraudster. Because even for a mobile operator it is hard to find a genuine customer. They issue the duplicate SIM to a fraudster. Once this new duplicate SIM is issued, then the genuine customer mobile phone will be without a network. Therefore, a genuine customer stopped to receive the SMS alerts on the phone.
4) Fraudster accesses your bank account with new SIM-Fraudster then initiates financial transactions (from the banking details which he has already stolen) by generating a one-time password (OTP). This new password will be sent to the fraudster’s new SIM but not to a genuine customer. Hence, a genuine customer kept in dark.
How the fraudsters get bank details?
SIM swapping/exchange is usually phase two of a fraud attack. Initially, they send a phishing email (or other similar phishing attempts) to get all your banking details. These details can also be stolen using Trojans/Malware. They also work towards getting the victim’s personal information and may even go as far as stealing identity and creating fraudulent ID documents. In order to use all of this gathered information, they need access to the victim's mobile messages – hence the SIM swap. In some countries, notably India and Nigeria the fraudster will have to convince the victim to approve the SIM swap by pressing some keys.
Once this happens the victim's phone will lose connection to the network and the fraudster will receive all the SMS and voice calls intended for the victim. This allows the fraudster to intercept any one-time passwords sent via SMS or telephone calls sent to the victim; and thus to circumvent any security features of accounts (be they bank accounts, social media accounts etc.) that rely on SMS or telephone calls.

How to protect from such frauds?

If your phone is out of network continuously for a few hours specifically on weekends, then you have to take it seriously and be alert and complain the same to a mobile operator.
Never switch off your mobile for long periods to avoid unwanted calls. Instead, try not to pick them. Otherwise, activate DND (Do Not Disturb) facility for your SIM.
Regularly check your bank account statement.
Register for both email as well as SMS alerts.
Do not share your 20 digits SIM number mentioned on the back of your SIM with anyone
Do not display your mobile number on social media websites.

Advocate Prashant Mali handles these kinds of cases and is instrumental to win many cases against banks and telecom operators . 

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