Forensic Audit and Indian Evidence Law: formula sheet

Key formulas

Scope of the Adhiniyam (Section 1)

Applies to: all judicial proceedings in or before any Court, including Courts-martial. Does not apply to: affidavits; proceedings before an arbitrator.

In force from 1 July 2024. Remember the two exclusions.

Evidence (Section 2(1)(e))

Evidence = oral evidence (statements, including electronic) + documentary evidence (documents, including electronic or digital records, produced for inspection of the Court)

Two kinds only. A forensic report is not itself a third kind; its supporting records and the auditor's testimony are.

Document (Section 2(1)(d))

Document = any matter recorded on any substance by letters, figures, marks or other means, intended to be or capable of being used to record that matter; includes electronic and digital records

Emails, server logs, messages, websites, location data and voice mail are named in the illustration.

Proved, disproved, not proved (Section 2(1))

Proved: Court believes it exists, or considers it so probable that a prudent man would act on it. Disproved: the opposite. Not proved: neither proved nor disproved.

The test is a prudent man acting on the supposition, not absolute certainty.

May presume and shall presume

May presume: regard as proved unless and until disproved, or call for proof. Shall presume: regard as proved unless and until disproved.

Conclusive proof is stronger: the Court shall not allow evidence to disprove it.

Terms reduced to a document (Section 94)

Where terms of a contract, grant or disposition of property are in a document, give no evidence of the terms except the document itself or admissible secondary evidence.

A statement in the document of some other fact does not bar oral evidence of that fact (Explanation 3).

Secondary evidence (Section 60)

Allowed when the original is: with the opposite party or a person beyond the Court's process or legally bound to produce it, and does not produce it after notice; admitted in writing; lost or destroyed; not easily movable; a public document; a document of which a certified copy is permitted; or numerous accounts, to prove the general result.

For some clauses any secondary evidence is admissible; for public documents and certified-copy cases only a certified copy is.

Electronic records (Section 61)

Admissibility cannot be denied only because a record is electronic or digital; subject to Section 63, it has the same legal effect, validity and enforceability as other documents.

Section 63 sets the further conditions; study it with Digital Evidence.

Production of documents (Section 165)

A witness summoned to produce a document in his possession or power must bring it to Court despite any objection; the Court decides the objection.

The Court may inspect it unless it relates to matters of State. Communications between Ministers and the President of India cannot be required.

Repeal rule

Section 170(1): the Indian Evidence Act, 1872 is repealed

The old Act is removed from the statute book, subject to the saving in sub-section (2).

Savings rule

Pending immediately before commencement → governed by the 1872 Act as then in force

Covers any application, trial, inquiry, investigation, proceeding or appeal. Treated as if the Adhiniyam had not come into force.

Commencement

Section 1(3): date appointed by notification; notified as 1st July, 2024

The date is from the official footnote (S.O. 849(E), 23rd February, 2024). Use it as the cut-off for the pending test.

Scope of application

Section 1(2): all judicial proceedings in or before any Court, including Courts-martial; not affidavits; not proceedings before an arbitrator

Useful when asked where the Adhiniyam applies at all.

Section 79 trigger

Document produced before Court + purports to be a record of evidence (or statement/confession of accused, taken in accordance with law) + purports to be signed by Judge, Magistrate or authorised officer → Court shall presume

All three parts must be present. The words 'purporting to be' mean the document needs to appear so on its face.

The three presumptions

(i) genuine; (ii) statements by the signer about the circumstances of taking are true; (iii) evidence, statement or confession duly taken

Learn these in order. Examiners often ask you to list all three.

Meaning of 'shall presume' (section 2(1)(l))

Court shall regard the fact as proved, unless and until it is disproved

The presumption is mandatory but rebuttable.

Meaning of 'may presume' (section 2(1)(h))

Court may regard the fact as proved unless disproved, or may call for proof

Use this to contrast with section 79, which is not discretionary.

Meaning of 'proved' (section 2(1)(j))

Court believes the fact exists, or considers its existence so probable that a prudent man ought to act on the supposition that it exists

Tells you the standard the Court applies when a presumption is rebutted.

Scope of the Adhiniyam (section 1(2))

Applies to all judicial proceedings in or before any Court, including Courts-martial; not to affidavits, nor to proceedings before an arbitrator

Useful limit: the Adhiniyam does not bind an arbitrator.

Main rule (Section 67)

Document required by law to be attested → call at least one attesting witness before using it as evidence

Applies only if an attesting witness is alive, subject to the Court's process and capable of giving evidence.

Proviso to Section 67

Registered document (not a will) → no attesting witness needed, unless execution is specifically denied

Wills are never exempt under the proviso, even if registered.

Section 68

No attesting witness can be found → prove (1) one attesting witness's attestation is in his handwriting and (2) the executant's signature is in the executant's handwriting

Both limbs must be proved.

Section 69

Party admits own execution → sufficient proof against that party

Applies even if the document is required by law to be attested. It binds only the admitting party.

Section 70

Attesting witness denies or does not recollect execution → execution may be proved by other evidence

Failure of the witness does not end the matter.

Section 71

Attested document not required by law to be attested → prove as if unattested

Attestation done voluntarily does not trigger Section 67.

Saving of Succession Act (Section 103)

Chapter provisions do not affect Indian Succession Act, 1925 on construction of wills

Covers construction (interpretation) of wills. It is a saving clause, not a rule of proof.

Attested document proof (Section 67)

Attested document → call at least 1 attesting witness, if alive, subject to process of Court and capable of giving evidence

The document cannot be used as evidence until this is done.

Registered document proviso (Section 67)

Registered document, not being a will → attesting witness not needed unless execution is specifically denied

Wills are excluded. A registered will still needs an attesting witness.

Attesting witness denies (Section 70)

Witness denies or does not recollect → execution may be proved by other evidence

Gives a fallback route to prove execution.

Admission by party (Section 69)

Party's admission of own execution of an attested document is sufficient proof against him

Applies even if the document is required by law to be attested.

Quick revision

• The Bharatiya Sakshya Adhiniyam, 2023 came into force on 1 July 2024 and repealed the Indian Evidence Act, 1872 (Section 170(1)).
• Proceedings pending before commencement are dealt with under the 1872 Act as in force immediately before commencement (Section 170(2)).
• The Adhiniyam applies to judicial proceedings before any Court, including Courts-martial, but not to affidavits or proceedings before an arbitrator.
• 'Document' includes electronic and digital records such as emails, server logs, messages and voice mail.
• 'Shall presume' means the Court must regard the fact as proved unless and until it is disproved; 'may presume' lets it treat the fact as proved or call for proof.
• Section 79: the Court shall presume a record of evidence, or a statement or confession of an accused, signed by a Judge, Magistrate or authorised officer is genuine, truly described and duly taken.
• Section 79 applies to documents that purport to be taken in accordance with law and purport to be signed by the Judge, Magistrate or authorised officer.
• Section 67: an attested document required by law to be attested needs at least one attesting witness called to prove execution, if one is alive, subject to the Court's process and capable of giving evidence.
• Section 67 proviso: a registered document, other than a will, needs no attesting witness unless its execution is specifically denied by the person who purportedly executed it.
• Section 103: the Evidence chapter does not affect the Indian Succession Act, 1925 provisions on the construction of wills.
• Section 67 deals with proof of execution; Section 103 deals with construction of wills. Do not mix them up.

Common mistakes

• Saying the Adhiniyam applies to arbitration proceedings. Fix: Quote Section 1(2): it does not apply to affidavits or proceedings before an arbitrator.
• Treating the forensic audit report as a separate kind of evidence. Fix: The Adhiniyam recognises only oral and documentary evidence. Show the report's supporting records as documents and the auditor's statement as oral evidence.
• Saying the 1872 Act is repealed so it never applies again. Fix: Always read sub-section (2). The repeal is subject to the saving for pending matters.
• Applying the Adhiniyam to a trial pending before commencement. Fix: Ask whether the trial was pending immediately before commencement. If yes, the 1872 Act governs.
• Applying section 79 to any document a forensic auditor collects, such as invoices or ledgers. Fix: Remember it covers only records of evidence and statements or confessions signed by a Judge, Magistrate or authorised officer.
• Writing that the presumption is 'may presume'. Fix: Section 79 says 'the Court shall presume'. Quote it and add that under section 2(1)(l) the fact is regarded as proved unless and until disproved.
• Saying every attested document needs an attesting witness. Fix: First check whether the law requires attestation. If it does not, Section 71 lets you prove it as if unattested.
• Saying a registered document never needs a witness. Fix: Add both conditions: it must not be a will, and the executant must not specifically deny execution.
• Saying Section 103 governs how a will is proved. Fix: Section 103 only saves the Succession Act on construction of wills. Proof of execution comes from Section 67 and Section 70.
• Writing that the BSA fully replaces the Succession Act for wills. Fix: State that Section 103 preserves the Succession Act's provisions on construction.

Exam tips

• Begin answers with the scope in Section 1 and a one-line link between forensic audit and evidence law. It sets up the rest.
• Use the exact definitions of evidence, document, fact and proved. Short quotations of key words earn marks.
• In case questions follow provision, analysis, conclusion. Name the section, apply the facts, then state the result.
• Add a practical drafting or compliance point, such as preserving originals, serving notice or documenting chain of custody.
• Cite a section number only when sure. If unsure, state the rule in words.
• Write both sub-sections: repeal first, then the saving. Examiners expect the pair.
• In case questions, always extract the date and compare it with 1st July, 2024 before concluding.
• Quote the key phrase "as if this Adhiniyam had not come into force" in your answer.