Section 90A IEA: Presumption as to electronic records five years old

Indian Evidence Act, 1872

Section 90A IEA at a Glance

Section 90A IEA deals with presumption as to electronic records five years old. From 1 July 2024 it is replaced by Section 93 BSA.

Now BSA

Section 93 →

Section 90A IEA Bare Act Text

90A. Presumption as to electronic records five years old

Where any electronic record, purporting or proved to be five years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the electronic signature which purports to be the electronic signature of any particular person was so affixed by him or any person authorised by him in this behalf.

Explanation

Electronic records are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probable.

This Explanation applies also to section 81A.

Source: Section 90A, Indian Evidence Act, 1872

Section 90A IEA in Simple Words

Section 90A of the Indian Evidence Act, 1872 deals with old electronic records produced as evidence. It lets a court presume (take as true without separate proof) that an electronic signature on a five-year-old electronic record is genuine. The court can treat the signature as affixed by the named person or by someone authorised by that person. Because the law uses the words may presume, the court has a choice and is not forced to accept the signature.

To use Section 90A IEA, the electronic record has to be claimed or proved to have reached five years of age. It must also be produced from custody that the court considers proper for the case.

Custody is proper when the record is in the place where, and under the care of the person with whom, it would naturally be. Custody is also valid if a legitimate origin is proved or if the case facts make a legitimate origin probable. This proper custody rule also applies to Section 81A IEA. Under Section 81A IEA, a court must presume that electronic Official Gazettes and electronic records required by law are genuine when they follow the legal form and come from proper custody.

When Section 90A IEA Applies

  • A party produces an electronic record in court that is claimed or proved to have reached five years of age.
  • The electronic record comes from custody that the court considers proper for the case.
  • Custody is proper if the record was kept in the natural place and under the care of the natural custodian, or if a legitimate origin is proved or probable.
  • When these conditions are met, the court may presume that the electronic signature was affixed by the named person or by an authorised person.

Example of Section 90A IEA

In 2022, a court in Pune hears a contract dispute over an electronic supply agreement bearing the electronic signature of Anita. The agreement was created five years earlier and comes from the archive of Ramesh, the company secretary who naturally keeps such files. The court is satisfied that this archive is proper custody for the file. Under Section 90A IEA, the court may presume that the electronic signature on the electronic supply agreement was affixed by Anita or by an authorised person.

Section 90A IEA in the BSA

Section 90A IEA is now covered under Section 93 BSA.

Section 90A of the Indian Evidence Act, 1872 became Section 93 of the Bharatiya Sakshya Adhiniyam, 2023 on 1 July 2024. The rule is the same. The Explanation on "proper custody" is no longer spelled out here and now refers to the Explanation to Section 81, which tests where a record is "required to be kept".

View detailed comparison (IEA 90A vs BSA 93) →

FAQs on Section 90A IEA

What is Section 90A IEA?▼

Section 90A of the Indian Evidence Act, 1872 is a rule on electronic records that have reached five years of age. When such a record comes from proper custody, the court may presume that the electronic signature on it was affixed by the named person or an authorised person.

Must the court presume that the electronic signature is genuine under Section 90A IEA?▼

No. Section 90A IEA says that the court may presume the electronic signature was properly affixed. This gives the court a choice either to make the presumption or to ask for proof.

Is custody improper under Section 90A IEA if the electronic record was not with its natural keeper?▼

No. Even if an electronic record is not in its natural place, custody is not improper when a legitimate origin is proved. It is also valid when the facts of the case make a legitimate origin probable.

What is Section 90A IEA in BSA?▼

Section 93 BSA. It replaced Section 90A IEA on 1 July 2024 and keeps the same rule for electronic records that are five years old. Instead of writing out the meaning of proper custody, Section 93 BSA applies the Explanation to Section 81 BSA. That Explanation looks at where the record is required to be kept, not where it would naturally be.

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Disclaimer: This is for informational purposes only. Always consult a qualified advocate for legal advice.

Sources: Bare Act Text, Indian Evidence Act, 1872 ·