Summary: Electronic evidence relevant to a commercial dispute can disappear through routine corporate processes such as mailbox deletion, device handover, employee offboarding, automated retention policies or reassignment of business communication accounts. Indian law does not provide a single codified “litigation hold” regime determining precisely when businesses must suspend such processes, but existing evidentiary, criminal and procedural provisions can create significant consequences when relevant material within a party’s control is unavailable. Section 119 of the Bharatiya Sakshya Adhiniyam, 2023 continues the evidentiary principle historically associated with Section 114 of the Indian Evidence Act, 1872, under which courts may draw appropriate presumptions from the circumstances, including where relevant evidence is withheld. The Supreme Court’s decision in Gopal Krishnaji Ketkar v. Mohamed Haji Latif is an important authority concerning adverse inference where a party possessing relevant evidence fails to produce it. Separately, Section 241 of the Bharatiya Nyaya Sanhita, 2023 addresses destruction of documents or electronic records intended to prevent their production as evidence. The practical consequence for businesses is that once a dispute is reasonably anticipated, legal, compliance, IT, HR and relevant business teams should coordinate preservation of emails, chats, devices, cloud records and other potentially relevant electronic material, suspend applicable deletion processes and document what has been preserved and by whom.
Introduction
A mid-sized manufacturing company receives a legal notice from a distributor alleging breach of a supply agreement. The company’s response team gathers documents for its reply. Three weeks later, someone in the legal team asks IT to pull the WhatsApp Business chat history with the distributor’s manager, the one where delivery delays were first discussed. IT explains that the number was reassigned to a new employee two months ago, and the old chat history was cleared as part of standard device handover. Nobody had told IT to preserve anything.
This is not a hypothetical situation. The single most common way electronic evidence disappears in Indian commercial disputes is not by means of some dramatic action, but rather by a retention policy, device handover or mailbox cleanup that nobody stopped to consider, because nobody thought to.
This article looks at what Indian law actually says when that happens, and what a business is expected to do differently once a dispute is on the horizon.
The legal issue
For example, if a party fails to produce evidence that was in its control and relevant to the dispute, the court is entitled to infer that the evidence would have gone against that party, one is civil. The other is criminal: if a party destroys a document or electronic record with the specific intent of keeping it out of a legal proceeding, that is a punishable offence in its own right, separate from whatever the underlying dispute is about.
Neither consequence depends on the deleted material actually being damaging. Both depend on what a court concludes about why it is gone.
Applicable legal framework
India does not have a codified “litigation hold” doctrine of the kind found in some common law jurisdictions, where a formal notice freezes a party’s document destruction the moment litigation becomes reasonably anticipated. What India has instead is a set of older, general principles that courts have applied with increasing frequency to electronic records.
Section 119 of the Bharatiya Sakshya Adhiniyam, 2023, empowers a court to presume the existence of any fact it considers likely, having regard to the common course of human conduct. This section carries forward, almost word for word, the illustration under Section 114(g) of the erstwhile Indian Evidence Act, 1872, which is what Indian courts have relied on for decades to draw an adverse inference against a party that withholds evidence within its control.
Separately, Section 241 of the Bharatiya Nyaya Sanhita, 2023, makes it an offence to destroy a document or electronic record with the intention of preventing its production as evidence before a court, once a person has been lawfully summoned or required to produce it, or with that intention more generally. This sits within the chapter of the BNS dealing with offences against public justice, and it applies squarely to digital material: emails, chat logs, cloud-stored files, and device data are all electronic records for this purpose.
On the civil procedure side, Order XI of the Code of Civil Procedure, 1908, governs discovery and interrogatories, and gives a court the power to draw conclusions against a party that fails to produce documents it was directed to produce.
Taken together, these provisions do not create a bright-line rule about when preservation duties begin. What they create is a real cost to guessing wrong.
Judicial position
The foundational authority here predates the electronic evidence era entirely, but Indian courts continue to apply it directly to digital records. In Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413, the Supreme Court held that a party in possession of the best evidence on a disputed fact must produce it, and that withholding such evidence entitles the court to draw an adverse inference against that party, even where the burden of proof did not originally rest on them. The Court was explicit that it is not sound practice for a litigant to rely on the technical doctrine of burden of proof while sitting on material that could clarify the dispute.
That reasoning has since been extended, in numerous High Court and Supreme Court decisions, to any category of evidence a party controls and fails to produce, and there is no principled reason it stops at paper. A company that cannot produce an email thread, a WhatsApp exchange, or a call log it plainly once had, and offers no credible explanation beyond routine deletion, exposes itself to exactly the inference Ketkar describes.
On the criminal side, prosecutions under Section 241 BNS (and its predecessor, Section 204 of the Indian Penal Code, 1860) have traditionally involved physical documents, but the section’s language covers electronic records without qualification, and its logic applies with equal force to a deleted mailbox or a wiped device once the intent element is met.
Practical examples
Consider three situations that come up regularly in corporate practice.
An employee resigns during an ongoing performance dispute, and IT wipes the laptop as part of standard offboarding before the exit interview notes are reviewed by legal. If the employee later alleges wrongful termination, the company may struggle to explain why device data relevant to the dispute was cleared during the very week the dispute was live.
A vendor sends a legal notice over a payment disagreement. The company’s finance team, unaware of the notice, continues its usual practice of archiving and then deleting emails older than twelve months. Two years later, in litigation, the vendor’s counsel asks why correspondence from the relevant period cannot be produced.
A distributor’s WhatsApp Business number is reassigned after a routine staff transfer, and the chat history is cleared as part of the device reset, without anyone checking whether that thread touches a live commercial disagreement.
None of these involve anyone acting in bad faith at the point of deletion. That is precisely the risk. The law does not require proof of a deliberate cover-up for an adverse inference to follow; it only requires that relevant material within a party’s control is missing when it matters.
Common mistakes
Companies routinely let automated retention and deletion policies run unchanged even after a dispute has surfaced internally, on the assumption that “standard practice” is a defence in itself. It is not, once a dispute is reasonably in view.
Legal teams often fail to communicate a preservation instruction to IT, HR, and business teams promptly after a notice or complaint is received, so routine housekeeping continues in departments that were never told to pause it.
Businesses also tend to assume that data on an employee’s personal device or personal WhatsApp account is outside their control and therefore outside their preservation obligation, even where the underlying communications were conducted for company business and the company had a practical ability to request their retention.
Finally, many businesses treat “we don’t have it” as a complete answer in correspondence or pleadings, without documenting why the material is unavailable, which leaves them unable to rebut an adverse inference argument later.
Practical steps
When a dispute is reasonably anticipated, whether through a legal notice, an internal complaint, a regulatory inquiry, or a clear escalation, legal or compliance should issue a written preservation instruction to every relevant custodian and department, identifying the subject matter and the record types involved (email, chat, call logs, device data, cloud storage).
Any automated retention or auto-delete settings touching the relevant custodians or systems should be suspended for the duration of the dispute, with the suspension documented in writing.
Where a departing employee, transferred device, or reassigned number may hold relevant material, that device or account should be imaged or backed up before any handover or reset, rather than relying on memory to flag it later.
A simple custodian and record log, noting what was preserved, when, and by whom, is worth maintaining from the outset; it becomes the company’s own evidence that it acted responsibly if the question is ever raised in court.
Conclusion
The provisions discussed here do not impose an indefinite duty to keep every record forever. They impose a narrower and more practical duty: once a dispute is genuinely on the horizon, routine housekeeping stops being routine, and a company’s ordinary IT and retention practices need a deliberate, documented pause. The businesses that get caught out are rarely the ones that destroyed evidence to hide something. They are the ones that never told anyone to stop deleting.
