POOTHOLI DAMODARAN NAIR Vs. BABU V K

JUDGEMENT

(1.) THE writ petitioner, who is the defendant in O. S. 210/02, the suit instituted for realization of amounts as per cheque issued has sought to quash the order of the Munsiff declining his request to have the magnetic tape that he has produced, played in the open court. The conversations he had with the plaintiff on the alleged date of the transaction involving the handing over of the disputed cheque is fully recorded in the cassette, he claims. The suit based on a loan transaction is contested by the defendant alleging that the cheque happened to be transmitted on account of the deception and subterfuge perpetrated by the plaintiff to secure job as Conductor in the KSRTC for the son of the defendant. The plaintiff had made him believe that he has got close contacts at the Cabinet level and that only on payment of Rs. 1,75,000, the assignment would materialize. The defendant paid Rs. 1,25,000 in cash and for the balance, a cheque for Rs. 50,000 was issued. Later, the defendant realised that his son was selected purely on merit and not on account of any intervention by the plaintiff. Thereafter, the defendant instructed his bank to stop payment on the particular cheque. The defendant's son had tape recorded the conversations and discussions made in between the plaintiff and the defendant on the relevant day. It is mentioned in the writ petition that the tape and the transcription were marked as Exts. B-11 and B-11 (a ). Before the case was posted for defendant's son's evidence, I. A. 1184/03 was filed for playing the tape in the court for the purpose of identification of the voice of the person whose voice it is professed to be and for establishing the authenticity and correctness of the recording. According to the defendant/writ petitioner, the tape is a vital evidence on his side as it contains a blow by blow account of what transpired on the occasion. The above I. A. was dismissed on the ground that the cassette was produced only after the closing of the evidence of the petitioner and also as the same is not seen kept in proper custody and that the copy of the transcript was not deposited in the official record room. It is the above order that is sought to be set aside.

(2.) SO far as the law as to the admissibility of the tape record is concerned, the same is no longer a grey area. The courts have permitted the same very much prior to the amendment of the Indian Evidence Act by the Information Technology Act 2000, enlarging the definition of" Evidence" in Section 3 as including electronic records. Really, the courts can no longer remain confined to the conventional parameters of 'evidence' amidst the ground-breaking advances in science and technology. The courts in India have admitted tape records as a relevant item of evidence as early as the reported decision in Rup Chand v. Mahabir Parshad AIR 1956 Punjab 173. The position for quite long, is that tape record is treated as a "document" coming under Section 3 of the Indian Evidence Act. It was in Ram Singh v. Col. Ram Singh AIR 1986 SC 3 Fazal Ali, J. for the majority laid down specific guidelines regarding the admissibility of a tape recorded statement, fine tuning the process as follows:

(3.) IT would be helpful in the context to recount the relevance of the tape recorded statements produced as evidence in the trial of a suit or other proceedings. Various decisions of the High Courts and that of the highest court of the land have laid down that the tape record like photograph of an incident is a record capable of re-presenting the situation admissible under Section 7 and also a relevant fact under Section 8 as the recording of the contemporaneous dialogue is part of res gestae. It is admissible to corroborate under Section 157, to contradict under Section 155 (3) and also to test the veracity of the witness under Section 146 (1) and forming his impartiality under Section 153 Exception 2 of the Evidence Act. It has been held that the above evidence is not hit by Article 21, nor barred by Article 20 (3) of the Constitution of India if there was no compulsion. The same is also not hit by Section 162 of the Criminal Procedure Code if it is not made to a police officer in the course of investigation. In Rup Chand's case (opcit), in proceedings over a suit on promissory note, on the question of admissibility of the tape record, Chief Justice Dhandari of the then Punjab High Court observed that the petition raised a question, which is as novel as it is new. The above was the first' decision by a superior court on the point. The court held that the record of a conversation although by no stretch of imagination can be treated as a statement "in writing or reduced into writing under Section 3 (65) of the General Clauses Act, as it is unlike in the case of printing, lithography, photography and other modes of representing or reproducing words in a visible form there is no rule of evidence which prevents a defendant who is endeavouring to shake the credit of a witness by proof of former inconsistent statements from deposing that while he was engaged in conversation with the witness a tape recorder was in operation, or from producing the said tape record in support of the assertion that a certain statement was made in his presence. The court relied on the decisions of the American and English courts with respect to admissibility of evidence furnished by devices for electro telephonic communications, for dispelling the cloud of misgivings about the admissibility of tape recorded evidence.