Rajeev Purushothaman v. M.C. Gopala Pillai & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **TUESDAY, THE 31ST DAY OF JANUARY 2012/11TH MAGHA,1933** **CRMC.No. 3452 of 2011 ( ) ------------------------AGAINST THE ORDER IN CRL.M.P.NO.5024/10 IN ST.1511/2007 of J.M.F.C.-I,PATHANAMTHITTA** **---------------------** **PETITIONER(S)/ACCUSED :-** **---------------------------** **RAJEEV PURUSHOTHAMAN, S/O.PURUSHOTHAMAN, MADATHIL HOUSE, THALACHIRA ERAM P.O., PATHANAMTHITTA DISTRICT.** **BY ADVS.SRI.R.PARTHASARATHY SMT.SEEMA PARTHASARATHY** ## **RESPONDENTS/COMPLAINANT & STATE :-** **-----------------------------------** **1. M.C.GOPALA PILLAI, S/O.CHELLAPPAN PILLAI, ANJALI, THAZHAM P.O. MALAYALAPUZHA VILLAGE, PATHANAMTHITTA.** **2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **R1 BY SRI.V.G.ARUN** **R1 BY SRI.T.R.HARIKUMAR** **R2 BY PUBLIC PROSECUTOR SMT.JASMINE V.H.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **jvt** **CRL.M.C.No.3452 OF 2011** **APPENDIX** Petitioner's Exhibits :- Annexure A :- Copy of the order in Crl.M.P.No.5024/10 in S.T.No.1511/2007 on the files of the Judicial First Class Magistrate-I, Pathanamthitta dated 18[th] January, 2010. Respondent's Exhibits :- NIL. //True Copy// P.A. to Judge ## **N.K.BALAKRISHNAN, J. -------------------------------Crl.M.C. No.3452 of 2011 ----------------------------------Dated this the 31[st] day of January 2012** ## **O R D E R** The accused who is facing trial in a case filed under Sec.138 of N.I.Act has moved this Court to quash Annexure A order. During defence stage, the petitioner filed an application before the learned Magistrate to admit a video recorded CD in evidence. According to him, he wanted to contend that there was a conversation with the complainant at his residence on 20.8.2008 and also on 3.4.2009 which took place near to the Court hall. According to the accused, the conversation would reveal the falsity of the case put forward by the complainant. The application for reception of that CD was strongly opposed by the complainant contending that the CD produced by the petitioner cannot be admitted in evidence under Sec.65B of Evidence Act, as the condition to admit such record has not been complied Crl.M.C. No.3452 of 2011 -: 2 :- with. It was also contended that even according to the accused, the conversation was recorded by him by using a mobile phone; and later, by using a computer, he copied it in a CD. It was further contended by the complainant that no certificate was obtained from the person who operated the computer device so as to authenticate the accuracy of the information recorded by him in the mobile phone which was later copied in the CD. Learned Magistrate dismissed that petition pointing out the unhealthy practice or tactics adopted by the accused. 2. Learned counsel for the accused/petitioner would submit that the authenticity of the CD would arise for consideration only after evidence is given by the party who has produced the CD in court as to the circumstances under which it was recorded. 3. First of all, it has to be stated by the party who wants to prove it as to how the conversation was recorded and how it was later copied in a CD. If it was done by Crl.M.C. No.3452 of 2011 -: 3 :- another person that person may have to be examined. That evidence is only with regard to the question as to whether it has to be first received in evidence. The acceptability of the contents of the CD or its probative force has to be determined later for which CD can be played in the court itself and the learned Magistrate can himself form an opinion as to the accuracy or inaccuracy of the information contained therein. 4. The decision of the Delhi High Court in **Devesh Kumar** v. **State** dated 10.2.2010 was cited by the learned counsel for the complainant. In that case it was found that the court cannot look to the computer generated sheets marked for the reason that the same was not proved to be the electronic record generated on sheets. No ratio as such was laid down in that case. 5. It is for the accused who wants to rely upon the CD to prove that the conditions mentioned in Sec.65B of the Evidence Act are satisfied in relation to the information Crl.M.C. No.3452 of 2011 -: 4 :- contained therein, as to how, when and by whom the conversation was recorded and how it was transferred from mobile camera – phone to a CD. If the learned Magistrate is of the view that prima facie there was manipulation regarding so called talk or conversation or that the possibility of imitation of voice also cannot be ruled out, then certainly being matters which may fall within the realm of appreciation of evidence it may have to be considered by the learned Magistrate in that angle. In other words, if the learned Magistrate after recording the evidence of the accused or the person who was stated to have recorded the conversation finds that there is no necessity of sending the same for expert's opinion, the learned Magistrate can decide that issue accordingly. It may also be relevant that before reception of the CD, the accused who wants to rely upon the talk/conversation must also produce the mobile phone with which the conversation was stated to have been recorded. If only that original is Crl.M.C. No.3452 of 2011 -: 5 :- produced and the learned Magistrate is convinced of the correctness and acceptability, the question of accepting the CD as secondary evidence may arise for consideration. In other words, without producing the primary evidence, the contents of the CD which may have to be treated as secondary evidence may not be admissible as such. Any way, those are also matters to be considered by the learned Magistrate. 6. The CD produced is not a copy of the public document. The general rule is that secondary evidence is not admissible until the party who wants to adduce secondary evidence satisfactorily explains and proves the reason for non-production of the primary evidence. Therefore, before attempting to prove the CD and the contents therein, first of all the mobile phone and the so called conversation recorded therein has to be proved in the manner required by law and if that is not done, mere production or receipt of the same in court will not amount Crl.M.C. No.3452 of 2011 -: 6 :- to proof of the contents of the same. In **Yusufalli Esmail Nagree** v. **State of Maharashtra** [AIR 1968 SC 147], it was observed by the Apex Court that since the tape-records are prone to tampering, the time, place and accuracy of the recording must be proved by a competent witness. It is necessary that such evidence must be received with caution. The court must be satisfied, beyond reasonable doubt that the record has not been tampered with. In **Ziyauddin Burhanuddin Bukhari** v. **Brijmohan Ramdass Mehra** [(1976 (2) SCC 17] it was held by the Apex Court that the tape-records of speeches were admissible in evidence on satisfying the following conditions:- (a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it. (b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory Crl.M.C. No.3452 of 2011 -: 7 :- evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record. (c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act. So far, the accused has not led any evidence to prove that the CD produced on record is the true re-production of the original speech/conversation of the complainant. For that purpose an opportunity has to be given to the accused. It was held in **Yashoda** v. **Shobha Rani** [2007 (2) KLT 804] : “In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under S.64, documents are to be provided by primary evidence. S.65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without nonproduction of the original being first accounted for in such a manner as to bring it within one or other of the cases Crl.M.C. No.3452 of 2011 ## -: 8 :- provided for in the Section.” 7. The decision in **Kalyani Baskar** v. **M.S.Sampoornam** [(2007) 2 SCC 258] has been cited by the learned counsel for the accused in support of his submission that by declining to receive the CD the court below has deprived the accused of an opportunity to rebut the case of the complainant. But the facts dealt with in that case are entirely different. There the request was to send the document relied upon by the complainant for examination and opinion of handwriting expert. It was in that context, the Apex Court allowed the prayer made by the accused and directed the learned Magistrate to take steps for obtaining the report of the handwriting expert on the point whether the signature of the cheque was that of the accused. 8. Learned counsel for the accused has also relied on the Apex Court decision in **R.M.Malkani** v. **State of Maharashtra** [AIR 1973 SC 157]. There the tape recorded Crl.M.C. No.3452 of 2011 -: 9 :- conversation was sought to be admitted in evidence. The Apex Court held that it is admissible in evidence provided there was no unlawful or irregular method in obtaining or the recording of the conversation. But at the same time, it was also held that the court must take care in admitting such evidence; that it will find out that it is genuine and free from tampering or mutilation. It was also held that the court must also secure scrupulous conduct and behaviour on the part of the police because of the reason that the police officer is more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the Judge. Therefore, here also it has to be found whether it was improperly obtained. 9. The decision of the Apex Court in **Velusamy K.K.** v. **N.Palanisamy** [2011 (2) KHC SN 18 (SC)] has also been relied upon in this connection, where it was held : “The amended definition of “evidence” in Section 3 of the Evidence Act, 1872 read with the definition of “electronic record” in Section 2(t) of the Information Technology Act Crl.M.C. No.3452 of 2011 ## -: 10 :- 2000, includes a compact disc containing an electronic record of a conversation. Section 8 of Evidence Act provides that the conduct of any party, or of any agent to any party, to any suit, in reference to such suit, or in reference to any fact in issue therein or relevant thereto, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. In R.M.Malkani v. State of Maharashtra, this Court made it clear that electronically recorded conversation is admissible in evidence, if the conversation is relevant to the matter in issue and the voice is identified and the accuracy of the recorded conversation is proved by eliminating the possibility of erasure, addition or manipulation. This Court further held that a contemporaneous electronic recording of a relevant conversation is a relevant fact comparable to a photograph of a relevant incident and is admissible as evidence under Section 8 of the Act. There is therefore no doubt that such electronic record can be received as evidence.” The decision of the Single Bench of this Court in **Perumal** v. **Star Tours and Travels (India) Ltd.** [2010 (3) KLT SN 15 (C.No.18)] has been cited by the learned counsel for the complainant in support of his submission that electronic record would be admissible in evidence only if the record Crl.M.C. No.3452 of 2011 -: 11 :- produced satisfies the conditions laid down under Sec.65B (2) and contains a certificate as contemplated by Sec.65B (4). It is for the accused/petitioner to satisfy the conditions laid down in 65B of the Evidence Act in order to get the document received and marked in evidence. 10. The learned Magistrate is perfectly justified in commenting upon the unscrupulous way the conversation was recorded by the accused. When a case is referred to the Adalath or Mediation, in order to ventilate their grievance a party may state so many matters beyond the pleadings and evidence so as to apprise the mediators or the officers presiding over the Adalath of their grievance so that the mediators or officers as the case may be would be able to find out the truth, and advice the parties to come to a settlement. All those matters may not be part of the pleadings or the evidence the parties might have produced before the court. That is the very reason why the courts often refer the case to mediation or for adalath. The very Crl.M.C. No.3452 of 2011 -: 12 :- object would be frustrated or defeated, if unscrupulous elements try to exploit the situation by recording the conversation and then making use of it as evidence or contradiction. If it was improperly or illegally obtained or recorded that also would be a reason not to place implicit reliance on the same. The question whether the alleged conversation was had immediately after the transaction or whether it was subsequent to the talk between the parties or their advocates in regard to the possible settlement or such other matters will certainly be considered by the learned Magistrate. But that is no reason to dismiss the petition at the threshold. The probative value or acceptability of the same will certainly be considered by the learned Magistrate after recording the evidence pertaining to the same that may be adduced by the accused or any witness competent to speak with regard to the same. To that extent this petition is to be allowed. Crl.M.C. No.3452 of 2011 -: 13 :- In the result, this Crl.M.C. is disposed of as stated below :- If the accused wants to bring that CD in evidence and if he lets in evidence with regard to the reception or acceptability of the CD, the learned Magistrate will decide the matter in accordance with law and in the light of what have been stated above. The learned Magistrate will take up the matter on **21.2.2012** and dispose of the case as expeditiously as possible. **N.K.BALAKRISHNAN, JUDGE.** Jvt