July 2, 2011
Now we move on to the questions of admission of electronic records and transmissions in the law of evidence. Law presumes paper-based documents as proof of transactions. Difficulties arise when records are kept in the electronic forms. Law of Evidence has to ensure that electronic transmissions and electronic records will have the same value as paper based documents and digital signature would be equally legal as a manual signature. The Indian Evidence Act,1872 revolves around two types of evidence – oral evidence and documentary evidence. Documentary evidence is of two types – primary evidence and secondary evidence. Primary evidence is where the original self is available. Secondary evidence is where the contents of the original will have to be proved by leading in further evidence. Electronic records challenge this very assumption since every electronic record is an original as well as in duplicate. In other words it is primary as well as secondary evidence at the same time. To get over this complex situation special provisions (Sections 65A and 65 B) have been incorporated in the India Evidence Act, 1872 through the Second Schedule of the Information Technology Act, 2000. The said Sections provide for proving the contents of electronic records. It is pertinent to note that the MCA has inserted section 610C, 610D and 610E in the Companies Act, 1956 so as to make provision for electronic filing system and for payment of fees through electronic form The substance of the above discussion is that if the Companies Act, 1956 do not provide expressly for maintenance of electronic register & records by the Companies, the Companies would be automatically entitled to maintain the records electronically subject to the conditions laid down in section 7(1) of the IT Act, 2000. Now we move on to the question of maintaining the registers at the place other than the registered office of the company. Attention is invited to Section 163 of the Companies Act which provides for maintenance of Register and Index of members / Register and Index of Debenture holder at the registered office of the company. However the said section permits the company to keep the aforesaid registers at the place other than the registered office of the company within the same city or town provided the same is authorizes by a special resolution of members. The strict legal interpretation of the above suggest that though the company can maintain the registers in the electronic format but not all registers can be kept at the place other the registered office of the company.