Section 94

Section 94 of IT Act 2000. Amendment of Act 2 of 1834. The Reserve Bank of India Act, 1934 shall be amended in the manner specified in the Fourth Schedule to this Act.

Amendment of Act 2 of 1834. The Reserve Bank of India Act, 1934 shall be amended in the manner specified in the Fourth Schedule to this Act. THE FIRST SCHEDULE (See section 91) AMENDMENTS TO THE INDIAN PENAL CODE (45 OF 1860) 1. After section 29, the following section shall be inserted, namely :- Electronic record. "29A. The words "electronic record" shall have the meaning assigned to them in clause (t) of sub-section (1) of section 2 of the Information Technology Act, 2000.". 2. In section 167, for the words "such public servant, charged with the preparation or translation of any document, frames or translates that document", the words "such public servant, charged with the preparation or translation of any document or electronic record, frames, prepares or translates that document or electronic record" shall be substituted. Mera Mente Han 3. In section 172, for the words "produce a document in a Court of Justice", the words "produce a document or an electronic record in a Court of Justice" shall be substituted. 4. In section 173, for the words "to produce a document in a Court of Justice", the words "to produce a document or electronic record in a Court of Justice" shall be substituted. 5. In section 175, for the word "document" at both the places where it occurs, the words "document or electronic record" shall be substituted. 6. In section 192, for the words "makes any false entry in any book or record, or makes any document containing a false statement", the words "makes any false entry in any book or record, or electronic record or makes any document or electronic record containing a false statement" shall be substituted. 7. In section 204, for the word "document" at both the places where it occurs, the words "document or electronic record" shall be substituted. 8. In section 463, for the words "Whoever makes any false documents or part of a document with intent to cause damage or injury", the words "Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury" shall be substituted. 9. In section 464,- (a) for the portion beginning with the words "A person is said to make a false document" and ending with the words "by reason of deception practised upon him, he does not know the contents of the document or the nature of the alteration", the following shall be substituted, namely :- "A person is said to make a false document or false electronic record- First-Who dishonestly or fraudulently- cument or part of a document;

(b) makes or transmits any electronic record or part of any electronic record;

(c) affixes any digital signature on any electronic record;

(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly-Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly-Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration. ";

(b) after Explanation 2, the following Explanation shall be inserted at the end, namely :- 'Explanation 3 .- For the purposes of this section, the expression "affixing digital signature" shall have the meaning assigned to it in clause (d) of subsection (1) of section 2 of the Information Technology Act, 2000.'. SEC. 1] 10. In section 466,- (a) for the words "Whoever forges a document", the words "Whoever forges a document or an electronic record" shall be substituted;

(b) the following Explanation shall be inserted at the end, namely :- 'Explanation .- For the purposes of this section, "register" includes any list, data or record of any entries maintained in the electronic form as defined in clause (r) of sub-section (1) of section 2 of the Information Technology Act, 2000.'. 11. In section 468, for the words "document forged", the words "document or electronic record forged" shall be substituted. 12. In section 469, for the words "intending that the document forged", the words "intending that the document or electronic record forged" shall be substituted. 13. In section 470, for the word "document" in both the places where it occurs, the words "document or electronic record" shall be substituted. 14. In section 471, for the word "document" wherever it occurs, the words "document or electronic record" shall be substituted. 15. In section 474, for the portion beginning with the words "Whoever has in his possession any document" and ending with the words "if the document is one of the description mentioned in section 466 of this Code", the following shall be substituted, namely: - "Whoever has in his possession any document or electronic record, knowing the same to be forged and intending that the same shall fraudulently or dishonestly be used as a genuine, shall, if the document or electronic record is one of the description mentioned in section 466 of this Code.". 16. In section 476, for the words "any document", the words "any document or electronic record" shall be substituted. 17. In section 477A, for the words "book, paper, writing" at both the places where they occur, the words "book, electronic record, paper, writing" shall be substituted. THE SECOND SCHEDULE (See section 92) AMENDMENTS TO THE INDIAN EVIDENCE ACT, 1872 (1 OF 1872) 1. In section 3,- (a) in the definition of "Evidence", for the words "all documents produced for the inspection of the Court", the words "all documents including electronic records produced for the inspection of the Court" shall be substituted;

(b) after the definition of "India", the following shall be inserted, namely :- 'the expressions "Certifying Authority", "digital signature", "Digital Signature Certificate", "electronic form", "electronic records", "information", "secure electronic record", "secure digital signature" and "subscriber" shall have the meanings respectively assigned to them in the Information Technology Act, 2000.'. 2. In section 17, for the words "oral or documentary,", the words "oral or documentary or contained in electronic form" shall be substituted. 2. After section 22, the following section shall be inserted, namely: - When oral admission as to contents of electronic records are relevant. "22A. Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.". 4. In section 34, for the words "Entries in the books of account", the words "Entries in the books of account, including those maintained in an electronic form" shall be substituted. 5. In section 35, for the word "record", in both the places where it occurs, the words "record or an electronic record" shall be substituted. 6. For section 39, the following section shall be substituted, namely: - What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers. "39. When any statement of which evidence is given forms part of a longer statement, or of a conversation or pan of an isolated document, or is contained in a document which forms part of a book, or is contained in part of electronic record or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, electronic record, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.". 7. After section 47, the following section shall be inserted, namely: - Opinion as to digital signature where relevant. "47A. When the Court has 10 form an opinion as to the digital signature of any person, the opinion of the Certifying Authority which has issued the Digital Signature Certificate is a relevant fact.". 8. In section 59, for the words "contents of documents" the words "contents of documents or electronic records" shall be substituted. 9. After section 65, the following sections shall be inserted, namely: Special provisions as to evidence relating to electronic record. '65A. The contents of electronic records may be proved in accordance with the provisions of section 65B. Be Čka Quecefar Admissibility of electronic records. 65B.

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without 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.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: - (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. SEC. 1] (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether- (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, - (a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section, (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation .- For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process. 10. After section 67, the following section shall be inserted, namely: - Proof as to digital signature. "67A. Except in the case of a secure digital signature, if the digital signature of any subscriber is alleged to have been affixed to an electronic record the fact that such digital signature is the digital signature of the subscriber must be proved.". 11. After section 73, the following section shall be inserted, namely: - Proof as to verification of digital signature. '73A. In order to ascertain whether a digital signature is that of the person by whom it purports to have been affixed, the Court may direct- (a) that person or the Controller or the Certifying Authority to produce the Digital Signature Certificate;

(b) any other person to apply the public key listed in the Digital Signature Certificate and verify the digital signature purported to have been affixed by that person.

Explanation .- For the purposes of this section, "Controller" means the Controller appointed under sub-section (1) of section 17 of the Information Technology Act, 2000'. 12. Presumption as to Gazettes in electronic forms. After section 81, the following section shall be inserted, namely: - "81 A. The Court shall presume the genuineness of every electronic record purporting to be the Official Gazette, or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody.". 13. Presumption as to electronic aggrements. After section 85, the following sections shall be inserted, namely: - "85A. The Court shall presume that every electronic record purporting to be an agreement containing the digital signatures of the parties was so concluded by affixing the digital signature of the parties. Presumption as to electronic records and digital signatures. 85B.

(1) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.

(2) In any proceedings, involving secure digital signature, the Court shall presume unless the contrary is proved that- (a) the secure digital signature is affixed by subscriber with the intention of signing or approving the electronic record;

(b) except in the case of a secure electronic record or a secure digital signature, nothing in this section shall create any presumption relating to authenticity and integrity of the electronic record or any digital signature. Presumption as to Digital Signature Certificates. 85C. The Court shall presume, unless contrary is proved, that the information listed in a Digital Signature Certificate is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber.". 14. Presumption as to electronic messages. After section 88, the following section shall be inserted, namely: - '88A. The Court may presume that an electronic message forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.

Explanation .- For the purposes of this section, the expressions "addressee" and "originator" shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2 of the Information Technology Act, 2000.'. 15. Presumption as to electronic records five years old. After section 90, the following section shall be inserted, namely: - "90A. 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 digital signature which purports to be the digital 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.". 16. For section 131, the following section shall be substituted, namely: - SEc. 1] Production of documents or electronic records which another person, having possession, could refuse to produce. "131. No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession or control, unless such last-mentioned person consents to their production.". THE THIRD SCHEDULE (See section 93) AMENDMENTS TO THE BANKERS' BOOKS EVIDENCE ACT ' 891 (18 OF 1891) 1. In section 2- (a) for clause (3), the following clause shall be substituted, namely :- '(3) "bankers' books" include ledgers, day-books, cash-books, account-books and all other books used in the ordinary business of a bank whether kept in the written form or as printouts of data stored in a floppy, disc, tape or any other form of electro-magnetic data storage device;

(b) for clause (8), the following clause shall be substituted, namely: - '(8) "certified copy" means when the books of a bank,- (a) are maintained in written form, a copy of any entry in such books together with a certificate written ;:: the foot of such copy that it is a true copy of such entry, that such entry is contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business and that such book is still in the custody of the bank, and where the copy was obtained by a mechanical or other process which in itself ensured the accuracy of the copy, a further certificate to that effect, but where the book from which such copy was prepared has been destroyed in the usual course of the bank's business after the date on which the copy had been so prepared, a further certificate to that effect, each such certificate being dated and subscribed by the principal accountant or manager of the bank with his name and official title; and (b) consist of printouts of data stored in a floppy, disc, tape or any other electro-magnetic data storage device, a printout of such entry or a copy of such printout together with such statements certified in accordance with the provisions of section 2A.'. 2. After section 2, the following section shall be inserted, namely: - Conditions in the printout. "2A. A printout of entry or a copy of printout referred to in sub-section (8) of section 2 shall be accompanied by the following, namely: - (a) a certificate to the effect that it is a printout of such entry or a copy of such printout by the principal accountant or branch manager; and (b) a certificate by a person in-charge of computer system containing a brief description of the computer system and the particulars of- (A) the safeguards adopted by the system to ensure that data is entered or any other operation performed only by authorised persons; (B) the safeguards adopted to prevent and detect unauthorised change of data; (C) the safeguards available to retrieve data that is lost due to systemic failure or any other reasons; (D) the manner in which data is transferred from the system to removable media like floppies, discs, tapes or other electro-magnetic data storage devices; (E) the mode of verification in order to ensure that data has been accurately transferred to such removable media; (F} the mode of identification of such data storage devices; (G) the arrangements for the storage and custody of such storage devices; (H) the safeguards to prevent and detect any tampering with the system; and (I) any other factor which will vouch for the integrity and accuracy of the system.

(c) a further certificate from the person in-charge of the computer system to the effect that to the best of his knowledge and belief, such computer system operated properly at the material time, he was provided with all the relevant data and the printout in question represents correctly, or is appropriately derived from, the relevant data.". THE FOURTH SCHEDULE (See section 94) AMENDMENT TO THE RESERVE BANK OF INDIA ACT, 1934 (2 OF 1934) In the Reserve Bank of IndiaAct, 1934, in section 58, in sub-section (2), after clause (p), the following clause shall be inserted, namely :- "(pp) the regulation of fund transfer through electronic means between the banks or between the banks and other financial institutions referred to in clause (c) of section 45-1, including the laying down of the conditions subject to which banks and other financial institutions shall participate in such fund transfers, the manner of such fund transfers and the rights and obligations of the participants in such fund transfers;". SUBHASH C. JAIN, Secy. to the Govt. of India. PRINTED BY THE MANAGER, GOVERNMENT OF INDIA PRESS (PLU), MINTO ROAD, NEW DELHI AND PUBLISHED BY THE CONTROLLER OF PUBLICATIONS, DELHI, 2000. MGIP(PLU)MRND-1359G1-14-6-2000.

Section 94, IT Act 2000 (Act 21 of 2000).