What are pre-conditions for leading secondary evidence?

What are pre-conditions for leading secondary evidence?

 In so far as the question of law formulated by this Court i.e. 'whether under Section 65 of the Indian Evidence Act, 1872, secondary evidence in the form of oral evidence can be led or considered to prove the contents of the document allegedly lost' is concerned, in my view, before allowing production of secondary evidence, it must be established that the original document is lost or destroyed or is being deliberately withheld by the party. Supreme Court in the case of Rakesh Mohindra Vs.Anita Beri and Ors., reported in 2016 ALL SCR 1 has held that the party who seeks to lead secondary evidence has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is held that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispenses with its proof, which is otherwise required to be done in accordance with law.

79. It is held by the Supreme Court that the pre-conditions for leading secondary evidence are that such original documents could not be produced by the party relying upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party who seeks to produce secondary evidence must establish for  the non-production of primary evidence. Unless, it is established that the original document is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot be accepted. In the facts of this case, the plaintiffs could not prove before the learned trial Judge that any of the alleged divorce deed was executed and lost and could not have produced and thus they were entitled to lead secondary evidence under Section 65 of the Indian Evidence Act, 1872.

In my view, the party who seeks to lead secondary evidence has to establish that such party is not able to produce the primary document which beyond his control or that the same is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used. Unless these mandatory conditions of Section 65 of the Indian Evidence Act, 1872 are complied with, such party cannot be allowed to lead secondary evidence. The substantial question of law no.(i) is accordingly answered in negative in the facts of this case.

Bombay High Court

Smt. Kashibai Namdeo Jadhav And ... vs Smt. Yamunabai Namdeo Jadhav And ... on 25 February, 2016

Bench: R.D. Dhanuka

 SECOND APPEAL NO.108 OF 1993

Citation:AIR 2016 (NOC)387 Bom           

 By this second appeal filed under Section 100 of the Code

Rights of accused in Cyber Crime Cases in India

RIGHTS OF THE ACCUSED WHO IS ARRESTED In CYBER CRIME MATTER 

1. Protection against arbitrary or unlawful arrest (Article 22 of the Constitution and Section 41, 55 and 151 of Cr.P.C.)

2. Protection against arbitrary or unlawful searches (Sees. 93, 94, 97, 100(4) to (8). and 165 of Cr.P.C.)

3. Protection against “Double Jeopardy” (Article 20(2) of the Constitution and Section 300 of Cr.P.C.)

4. Protection against conviction or enhanced punishment under ex-past facto law (Article 20(1) of the Constitution)

5. Protection against arbitrary or illegal detention in custody (Article 22 of the Constitution and Sees. 56, 57 and 76 of Cr.P.C.)

6. Right to be informed of the grounds, immediately after the arrest (Article 71(1) of the Constitution and Section 50 of Cr.P.C. as also Sees. 55 and 75 of Cr.P.C.)

7. Right of the arrested person not to be subjected to unnecessary restraint (Section 49 of Cr.P.C.)

8. Right to consult a lawyer of his own choice (Article 22(1) of the Constitution and Section 303 of Cr.P.C.)

9. Right to be produced before a Magistrate within 24 hours of his arrest (Article 22(1) of the Constitution and Sees. 57 and 76 of Cr.P.C.)

10. Right to be released on bail, if arrested (Sees. 436, 437 and 439 of Cr.P.C., also Sees. 50, 20 and 167 of Cr.P.C.)

11. Right not to be a witness against himself (Article 20(3) of the Constitution)

12. Right to get copies of the documents and statements of witnesses on which the prosecution relies (Sees. 173(7), 207, 208 and 238 of Cr.P.C.)

13. Right to have the benefit of the presumption of innocence till guilt is proved beyond reasonable doubt (Sees. 101-104 of Evidence Act)

14. Right to insist that evidence be recorded in his presence except in some special circumstances (Section 273 of Cr.P.C., also Section 317 Cr.P.C.)

15. Right to have due notice of the charges (Sees. 218, 228(2), 240(2), etc. of Cr.P.C.)

16. Right to test the evidence by cross-examination (Section 138 of Evidence Act)

17. Right to have an opportunity for explaining the circumstances appearing in evidence against him at the trial (Section 313 of Cr.P.C.)

18. Right to have himself medically examined for evidence to disprove the commission of offence by him or for establishing commission of offence against his body by any other person (Section 54 of Cr.P.C.)

19. Right to produce defence witnesses (Section 243 of Cr.P.C.)

20. Right to be tried by an independent and impartial Judge (The Scheme of Separate of Judiciary as envisaged in Cr.P.C., also Sees. 479, 327, 191, etc. of Cr.P.C.)

21. Right to submit written arguments at conclusion of the trial in addition to oral submission (Section 314 of Cr.P.C.)

22. Right to be heard about the sentence upon conviction (Sees. 235(2) and 248(2) of Cr.P.C.)

23. Right to fair and speedy investigation and trial (Section 309 of Cr.P.C.)

24. Right to appeal in case of conviction (Sees. 351, 374, 379, 380 of Cr.P.C. and Arts. 132(1), 134(1) and 136(1) of the Constitution)

25. Right not to be imprisoned upon conviction in certain circumstances (Section 360 of Cr.P.C., and Section 6 of the Probation of Offenders Act)

26. Right to restrain police from intrusion on his privacy (Article 31 of the Constitution)

27. Right to release of a convicted person on bail pending appeal (Section 380 of Cr.P.C.)

28. Right to get copy of the judgment when sentenced to imprisonment (Sec.363 of Cr.P.C.)

21 Months Jail & $77000 fine for Sabotaging CITI Bank Network(Cyber Crime) in 2013

21 Months Jail & $77,000 Fine for Sabotaging CITI Bank Network in 2013

Ex staff of Citibank named Lennon Ray Brown was sentenced to Jail for 21 months along with a $77,000 fine by a Texas court (U.S. District C. Godbey ) for sabotaging the bank’s internal network, The Register reports. Lennon Ray Brown, who worked at the bank’s Irving office, said he wanted to get back at management for "firing" him after he was called out for poor job performance.

Brown had been working at Citibank's Irving, Texas, corporate office since 2012, first as a contractor and later as a staff employee, when he was called in by a manager and reprimanded for poor performance.Brown, 38, admitted that on December 23, 2013, he issued commands to wipe the configuration files on 10 core routers within Citibank's internal network.Brown deliberately uploaded commands to the bank's Global Control Center routers that deleted the configuration files, ultimately congesting network traffic and resulting in an outage in network and phone access to around 90% of Citibank branches across the US.

Specifically, at approximately 6:03 p.m. that evening, Brown knowingly transmitted a code and command to 10 core Citibank Global Control Center routers, and by transmitting that code, erased the running configuration files in nine of the routers, resulting in a loss of connectivity to approximately 90% of all Citibank networks across North America.  At 6:05 p.m. that evening, Brown scanned his employee identification badge to exit the Citibank Regents Campus.

At the sentencing hearing, where the Court referred to Brown’s conduct as “criminal vandalism,” the government read a text that Brown sent to a coworker shortly after he shut down Citibank’s system that read, “They was firing me. I just beat them to it. Nothing personal, the upper management need to see what they guys on the floor is capable of doing when they keep getting mistreated. I took one for the team. Sorry if I made my peers look bad, but sometimes it take something like what I did to wake the upper management up.”

Source: United States Department of Justice

Anton Piller Order or Order related to Raids in Software Piracy matter : Microsoft loses

Microsoft looses its Anti piracy raid case due to wrong facts in the Petition

The Bombay High Court has criticised Microsoft for making misleading claims when it secured a preliminary order that allowed the company to search the premises of a local company it accused of copyright infringement. Court vacated a stay it had granted this June in favour of the US tech major in its plea against Girnar Software over unlicensed use of its products.

In a ruling handed down on July 15, 2016  Hon. Justice Gautam Patel vacated a previous order handed down last month and has given Microsoft an opportunity to withdraw its complaint. In the dispute, US-based Microsoft sued Girnar Software earlier this year for allegedly using unauthorised copies of its software including Microsoft Windows, Office and Visual Studios. On June 24, Hon. Justice had granted Microsoft’s request for an Anton Piller order.

Under those orders, a defendant in a proceeding is required to allow a plaintiff or its representatives to enter the defendant’s premises to obtain evidence.In this case, experts from the High Court’s IT department were sent to oversee raids on Girnar’s offices in Gurgaon, Jaipur and Andheri.In its initial complaint, and which helped secure the order, Microsoft accused Girnar of having 3,315 computer systems on which there were 1,340 instances of Microsoft Windows being used.This, according to Microsoft, was despite the company having procured licences for only 545 uses.

Furthermore there were allegedly 1,308 instances of Microsoft Office being used on systems despite Girnar having only 550 licences and 60 uses of Microsoft Visual Studios despite Girnar having procured only five licences.Microsoft added that Girnar was being uncooperative in attempts to resolve the matter through negotiations.

But in his July 15 order, Hon. Justice said that when the raids were actually conducted, it was discovered that Girnar had far fewer computer systems than previously alleged. According to the court, the company had only 1,053 machines, of which only 283 ran Windows. Girnar’s counsel also revealed that Microsoft had allegedly suppressed crucial email exchanges which showed that Girnar was in fact co-operating with Microsoft. Microsoft’s counsel was asked for an explanation but claimed there was an “oversight” on its part.

Microsoft admitted that it used vague language in its pleadings including “estimated” and “approximately”, and that because the raid at one of the locations was delayed, it was possible that Girnar deleted the software from its systems. Hon. Justice criticised the claims: “My disapproval today is of Microsoft presenting speculation as fact. This is not answered by presenting me with still more speculation based on even less fact. “I find it particularly galling that attempts are now made to explain its pleading by this fuzzy reading approach; by asking me to read into words like ‘approximate’, ‘approximately’, ‘estimated’ and ‘some of which’.” "The lesson to be learned from all this, one that I believe will govern all future applications for Anton Piller orders — every one of those orders will require clearest statement of facts. Any grey areas — 'estimates', 'approximates' — will be clearly set out in the plaint. There is to be no holding back of relevant documentary material."  Hon . Justice even said that in future, "every order will be conditional on the applicant depositing in court as security a sum to be decided when the order is made." This is particularly bad for organisations who were eying Anton Piller orders for enforcing Anti piracy measures. 

Adv Prashant Mali Speaking along with The Hon. IT & Telecommunication Minister of India Mr Ravishankar Prasad

Terrorist using Customised Apps to evade detection

Terrorist have created an application 'calculator' which can be downloaded on smart phones attached to the off-air network created specifically for them.

The technology is based on the concept of 'cognitive digital radio' that enables users to turn their smartphones into peer-to-peer, off-grid communication tools.

The network generates its own signal through proprietary adhoc networking protocols and automatically coordinates with other units within range which enables users to send and receive text messages, share their GPS locations on offline maps regardless of access to WiFi or cellular service.

The Calculator app is loaded on a normal Android phone and communicates over WiFi to the Radio which further gets transmitted on VHF as digital burst communication. 

The principle is same as Gotennna but with little difference. 

Gotennna uses Bluetooth to communicate with the a small Radio device Antenna which further uses UHF to transmit data. 

Gotennna works on P2P concept while this most likely is not working on P2P.

Terrorist are also using morse code and DTMF to evade interception.

#cyberenabledterrorism #cyberterrorism

What is Locky Malware and what to do

is a Malware(virus types) which is sent to your computer via email or via an attachment of a fake invoice then that malware(malicious software) encrypts your hard disk and whole data becomes meaningless like special characters  ं$#़॥ like this only one jpg file u can open.

Then only in this jpg file there are instructions to pay ransome via bitcoin. Once u pay the hard disk is decrypted I.e made meaningful.
The victim receives an email that requests payment on an attached "invoice", usually a Word file. The attachment contains some sort of executable code, like a VBA macro, that downloads the actual malware from a web site and runs it, encrypting the data on the victim's local and networked hard drives. It then displays a screen that demands a ransom to decrypt the data.

WHAT TO DO WITH LOCKY?

Backup regularly and keep a recent backup copy off-site. There are dozens of ways other than ransomware that files can suddenly vanish, such as fire, flood, theft, a dropped laptop or even an accidental delete. Encrypt your backup and you won’t have to worry about the backup device falling into the wrong hands. Don’t enable macros in document attachments received via email. Microsoft deliberately turned off auto-execution of macros by default many years ago as a security measure. A lot of malware infections rely on persuading you to turn macros back on, so don’t do it!Be cautious about unsolicited attachments. The crooks are relying on the dilemma that you shouldn’t open a document until you are sure it’s one you want, but you can’t tell if it’s one you want until you open it. If in doubt, leave it out. Don’t give yourself more login power than you need. Most importantly, don’t stay logged in as an administrator any longer than is strictly necessary, and avoid browsing, opening documents or other “regular work” activities while you have administrator rights.Consider installing the Microsoft Office viewers. These viewer applications let you see what documents look like without opening them in Word or Excel itself. In particular, the viewer software doesn’t support macros at all, so you can’t enable macros by mistake!Patch early, patch often. Malware that doesn’t come in via document macros often relies on security bugs in popular applications, including Office, your browser, Flash and more. The sooner you patch, the fewer open holes remain for the crooks to exploit.

..Advocate Prashant Mali

Cyber Security & Law Expert