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WhatsApp Chats have no Evidentiary Value

November 25, 2021

By Vikrant Rana and Anuj Jhawar

Once again, WhatsApp, the intensely popular instant messaging application across countries, finds itself at the center of a legal whirlwind. The Hon’ble Supreme Court of India on July 14, 2021 in A2Z Infraservices Ltd. Versus Quippo Infrastructure Ltd. (Now Known As Viom Infra Ventures Ltd.) SLP(C) No. 8636/2021[1] played a significant part in yet again enlightening us on the question of evidentiary value of WhatsApp chats/conversations. The complexities arises as only the printouts of the conversations may be presented in court, the nature of WhatsApp chats is largely secondary. However, the Indian Evidence Act requires that any “electronic record” be presented in the main form of evidence or that the document is proven by primary evidence before it may be admitted as evidence.The Courts have time and again answered the question of whether WhatsApp Chats have any evidentiary value or not and have emphasized and ruled that WhatsApp chats cannot be used as evidence without a certificate under Section 65B of the Evidence Act.

A bench of Hon’ble Mr. Chief Justice N V Ramana and Hon’ble Mr. Justice A S Bopanna and Hon’ble Mr. Justice Hrishikesh Roy said,

What is the evidential value of WhatsApp messages these days? Anything can be created and deleted on social media these days. We don’t attach any value to the WhatsApp messages.”

“Prima facie we are not satisfied with the HC direction for depositing the money in an escrow account. We are not considering the purported admission in WhatsApp messages. If it is not late, then go before the arbitrator and parties would be bound by the arbitrator’s award.”

Brief Facts  –

  • In 2016, South Delhi Municipal Corporation and a consortium consisting of the Respondents and another business entered into the Concession Agreement which included the collection and transportation of waste items after they had gone through a waste management process.
  • In 2017, the Respondents entered into a Master Service Agreement with the appellant to complete a portion of the project as a subcontractor. The parties and several other entities, including Axis Bank Limited, entered into another arrangement called the Escrow agreement in October, 2017. All funds received by the Respondents under the Concession Agreement would be placed in an Escrow account with Axis Bank serving as the Escrow Agent under this agreement.
  • A2Z entered into a separate agreement with Quippo Infrastructure to complete a portion of the contract work, and it was agreed that the money collected by A2Z would be placed in an escrow account from which the parties would be paid.
  • The Master Service contract with Quippo was cancelled by A2Z in the year 2020. As result of termination of the contract Quippo Infrastructure moved an application to the Calcutta High Court for the appointment of arbitration panel in order to resolve the issue arising of the dispute.
  • The Calcutta High Court in Quippo Infrastructure Ltd vs A2Z Infraservices Ltd & Anr [2] of relied on the WhatsApp communication dated March 19, 2020 wherein the respondent A2Z allegedly admitted due payment of INR 8.18 crore to the Quippo Infrastructure (now Viom Infra ventures). Further the court also relied upon an e-mail dated 2018 where the A2Z infrastructure have agreed to deposit the payments received from South Delhi Municipal to an Escrow Account.
  • The Calcutta High Court relying on the same ordered that the Respondents A2Z Infraservice to deposit the due payment in an escrow account transparently overlooking the fact that the A2Z contended that that e-mail/WhatsApp was falsified and manufactured and therefore should not be considered acceptable in court.
  • Later Aggrieved by the order of the Calcutta High Court A2Z Infra decided to challenge the order and moved an application in the Hon’ble Supreme Court. The Hon’ble Supreme Court of India on July 14, 2021 ruled that the aforementioned communications on the social media network WhatsApp have no evidentiary value and that the source of such messages cannot be identified, particularly in commercial partnerships regulated by agreements.

Conclusion

Despite the modern ubiquity of instant messaging and social media platforms, based on the discussions on point of law and the cases that are coming before the Hon’ble Supreme Court of India and several High Courts have reiterated on several occasions that WhatsApp chat will have no evidentiary value whatsoever if the same are not accompanied by a Certificate under Section 65B of Indian Evidence Act

In the year 2000, the Indian government specifically enacted section 65A of the Evidence Act, which established certain criteria for the validity of secondary evidence before any court of law. The government also established the Information Technology Act in the year 2000, thereby demonstrating the legislature’s favorable attitude toward the concept that “according to the changing requirements and conditions of our world, the legislation regulating it should also adapt.”

[1] A2Z Infraservices Ltd. Versus Quippo Infrastructure Ltd. (Now Known As Viom Infra Ventures Ltd.) SLP(C) No. 8636/2021

[2] Quippo Infrastructure Ltd.Vs. A2Z Infraservices Ltd & Anr.APO 29 of 2021

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