Introduction
A bank employee is asked on the stand whether a particular loan disbursement happened on a given date. They have no memory of that specific transaction at all — it was one of thousands they processed. But they wrote the entry themselves, in the ordinary course of business, and they know their own record-keeping was accurate. Can their testimony still count as evidence of the fact, even with zero independent recollection?
The Bharatiya Sakshya Adhiniyam, 2023 (BSA) says yes — and Section 163, in Chapter X ("Of the Examination of Witnesses"), is the provision that makes it possible. It sits one step beyond its immediate neighbour, Section 162 on refreshing memory, and covers a witness who has moved past "refreshed" recollection into having no memory left at all. This article explains what Section 163 actually permits, how it differs from the refreshing-memory rule beside it, and why it matters for anyone relying on business, banking, or institutional records to prove a fact.
163. Testimony to facts stated in document mentioned in section 162.
A witness may also testify to facts mentioned in any such document as is mentioned in section 162, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.
Section 163 Explained: When Memory Runs Out Entirely
Section 162 governs a witness whose memory is merely dim — they see the document and the transaction comes back to them, even if imperfectly. Section 163 governs a different, more extreme situation: the witness's memory of the specific facts is gone entirely, and no amount of looking at the document brings it back. What remains is not a recollection of the event, but a confident belief that the document, when made, recorded the event correctly.
The BSA treats that confidence as enough. A witness in this position may still testify to the facts the document states — not because they remember the underlying event, but because their testimony vouches for the reliability of their own past record-keeping practice at the time the document was made.
Two Doctrines, One Sentence Apart
Evidence scholars typically describe the distinction Sections 162 and 163 draw as the line between "present recollection revived" and "past recollection recorded." The label is useful because it captures exactly what changes between the two provisions — not the document, not the formality, but the witness's mental state when they take the stand.
| Feature | Section 162 (Refreshing Memory) | Section 163 (Testimony From Document) |
|---|---|---|
| Witness's memory | Present, but needs jogging | Absent — no recollection of the facts at all |
| What the witness testifies from | Their own revived memory of the event, aided by the writing | The document itself, on the strength of the witness's confidence it was accurate |
| What must be shown | The writing was made at, or soon after, the transaction, while it was fresh in memory | The witness is sure the facts were correctly recorded when the document was made |
This means Section 163 is not simply a weaker version of Section 162 — it is a genuinely separate basis for admitting testimony, built on trust in a past process rather than trust in a present memory.
Worked Example: The Regularly Kept Ledger
The bare Act's own illustration is the clearest way to see the rule in action: a book-keeper may testify to facts recorded in books regularly kept in the course of business, if they know the books were correctly kept, even though they have entirely forgotten the individual transactions.
Banking and financial-record disputes are the modern-day version of this exact scenario. In institutions processing thousands of transactions, no employee can be expected to recall an individual entry months or years later — Section 163 is precisely what allows the institution's contemporaneous records to speak through a witness who can vouch for how they were kept, a scenario evidence practitioners have long litigated in cases such as Standard Chartered Bank v. Andhra Bank Financial Services Ltd.
Why This Matters More Than It Looks
Without Section 163, a witness who genuinely has no memory of an event would simply be an incompetent witness on that point, no matter how reliable their record-keeping was. That would leave institutions unable to prove routine facts — a deposit was made, a notice was sent, a delivery was logged — through the very records built for exactly that purpose, forcing reliance on separate, often harder-to-satisfy documentary-evidence routes instead.
Section 163 closes that gap by locating the reliability where it actually exists: not in the witness's memory of one transaction among thousands, but in the discipline of a record-keeping system the witness can genuinely speak to. This is what makes the provision indispensable to institutional litigation — banks, hospitals, logistics companies, and government departments all depend on witnesses who cannot recall individual entries but can vouch for the process that created them.
The Modern Wrinkle: Records That Were Never on Paper
The book-keeper illustration is over 150 years old, but the overwhelming majority of "regularly kept business records" today exist only as database entries — core banking system logs, hospital information systems, ERP transaction tables. Section 163 does not stop applying just because the record is digital; a systems administrator or records officer can still testify, with no memory of an individual entry, that a particular transaction log was correctly generated and maintained.
What changes is that a purely electronic record brings a second statutory layer into play alongside Section 163: the special conditions for admitting electronic records as documentary evidence, now found in Section 63 of the BSA (the successor to the old Section 65B certificate regime under the IEA). Section 163 lets the witness testify to the facts in the record without personal recollection; Section 63 separately governs whether the electronic record itself is admissible as a document in the first place, typically through a signed certificate about the computer and process that generated it. In practice, a party relying on digital business records under Section 163 needs both — a witness who can vouch for the record-keeping practice, and a Section 63 certificate establishing the record's technical provenance.
Section 163 BSA vs. Section 160 IEA: Substance Unchanged
Section 163 corresponds to Section 160 of the Indian Evidence Act, 1872 (IEA), and the wording — including the book-keeper illustration — carries over essentially without change, only the internal cross-reference shifting from the old Section 159 to the renumbered Section 162.
| Element | IEA, 1872 (Section 160) | BSA, 2023 (Section 163) |
|---|---|---|
| Testimony without recollection | Permitted, if witness is sure of accurate recording | Unchanged |
| Book-keeper illustration | Present, tied to old Section 159 | Same illustration, tied to renumbered Section 162 |
This continuity means the extensive body of Indian case law developed under Section 160 IEA — much of it in banking, corporate, and institutional-records disputes — transfers directly to Section 163 practice under the BSA, with no need to relitigate the underlying principle.
Who Section 163 Actually Affects
- Institutional witnesses — bank employees, hospital record-keepers, logistics staff — who cannot recall individual transactions but can vouch for the reliability of a regular record-keeping system.
- Litigants relying on business records gain a real evidentiary path to prove routine facts without needing a witness who happened to personally remember one specific entry.
- Opposing counsel should test the witness's actual basis for confidence in the record-keeping system, not just accept the bare assertion that "the books were correctly kept."
- Trial judges need to distinguish genuine Section 163 testimony (grounded in knowledge of the system) from unfounded assertions dressed up in the section's language.
- Auditors and compliance teams preparing witnesses for institutional litigation should document record-keeping procedures clearly, since that documentation is often what makes a Section 163 witness credible.
Key Takeaways
- Section 163 covers total memory loss, not partial: it applies once a witness has no specific recollection left, distinguishing it sharply from Section 162's refreshed-memory scenario.
- Confidence in the system, not the event, is the legal basis: the witness vouches for accurate record-keeping practice, not for remembering the transaction itself.
- The book-keeper illustration is the model case: regularly kept business books are the paradigm example, and modern banking and institutional records are its most common real-world use.
- It still depends on Section 162's foundation: the underlying document must have been made contemporaneously, exactly as Section 162 requires — Section 163 does not relax that requirement.
- The rule is unchanged from 1872: Section 163 BSA carries forward Section 160 IEA, including its illustration, almost verbatim.
Conclusion
Section 163 answers a question that comes up constantly in institutional litigation: what happens when a witness's memory simply runs out? Rather than excluding testimony the moment recollection fails, the BSA allows the witness's confidence in their own past accuracy to stand in for memory — provided that confidence is genuinely grounded in a regular, verifiable record-keeping practice.
For litigants and counsel building a case on institutional records, the practical lesson is to prepare witnesses who can speak credibly to the system behind the document, not just the document itself. That is what Section 163 actually asks for, and it is what makes records-based testimony hold up under cross-examination.