M.Kumarasamy v. V.Sivaraj Karthikeyan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 11-09-2007CORAMTHE HONOURABLE MR.JUSTICE S.PALANIVELUCRIMINAL REVISION CASE No.368 OF 2007M.Kumarasamy...Petitioner/Appellant-vs-V.Sivaraj Karthikeyan...Respondent/RespondentRevision against the order, dated 28.02.2007, made inCrl.M.P.No.16 of 2006 in C.A.No.135 of 2006, on the file of Fast TrackCourt No.III, Dharapuram.For petitioner : Mr.N.ManokaranJ U D G M E N TPetitioner is the appellant before the Fast Track Court No.III,Dharapuram, in C.A.No.135 of 2006, which he preferred against theconviction passed by the Judicial Magistrate, Dharapuram, in C.C.No.108 of2003, which was taken up on file, on the complaint preferred by therespondent herein under Section 138 of the Negotiable Instruments Act. Hefiled an application before the Fast Track Court to receive an audiocassette and the typed matter of recorded version contained in the saidaudio cassette. It was stated by the petitioner that he delivered a blanksigned cheque to one Muthusamy as security in a chit transaction, but, itwas, thereafter, given to the respondent, who misused it and lodged acomplaint, claiming a sum of Rs.5.00 lakhs, on the strength of the saidcheque. It was the defence of the petitioner that he does not know whothe respondent was; the cheque was not at all supported by anyconsideration; pending the proceedings before the Judicial Magistrate,there was a discussion among the Surya Finance Muthusamy and its partnersVaradarajan and Nataraj with regard to the receipt of the said cheque bythe respondent and the said conversation was recorded by the petitioner inan audio cassette and the said audio cassette was sought to be received asadditional evidence in the appeal before the Fast Track Court, Dharapuram,under Section 391 Cr.P.C. https://hcservices.ecourts.gov.in/hcservices/

2. The above said allegations in the petition were controvertedto by the respondent in his counter before the said Court, contending thatno such discussion took place as stated; the petitioner had not filed anyapplication nor did he represent the alleged discussion before theJudicial Magistrate Court; no such petition was filed before the Courtbelow and hence his request would not be entertained. 3. I have given my thoughtful consideration to the rivalsubmissions.4. Learned counsel for the petitioner would submit that theadmissibility as to the receipt of tape recorded evidence has beenrecognised by the judicial pronouncements and, in fact, a ConstitutionBench of the Hon'ble Supreme Court has also held that such evidence isadmissible. The learned counsel garnered support from a decision renderedby the Constitution Bench of the Supreme Court in Pratap Singh v. State ofPunjab, AIR 1964 Supreme Court 72 (V 51 C7), in which the followingprinciples have been formulated :"The tape recorded conversation between a personand other person talking with him can only becorroborative evidence of the statement of the formerthat the other person had made such and suchstatements, but cannot be direct or primary evidencethat a third person had stated what the other speakerhad told the former. Tape-recordings can be legalevidence by way of corroborating the statements of aperson who deposes that the other speaker and hecarried on that conversation or even of the statementof a person who may depose that he overheard theconversation between the two persons and what theyactually stated had been tape-recorded. Weight to begiven to such evidence will depend on the other factorswhich may be established in a particular case. Itcannot be held that the record of the conversation on atape-record is not admissible in evidence for anypurpose."5. In the above said decision, it has been further held thatmerely on the ground that there is every possibility of tampering with therecorded conversation, it cannot be said that it is inadmissible inevidence. https://hcservices.ecourts.gov.in/hcservices/

6. Learned counsel for the petitioner also pointed out thatreceiving of additional evidence in the appellate stage in view of Section391 Cr.P.C. has to be liberally viewed by the Courts and if there is anyirregularity or defect in the trial Court proceedings, it could be curedin the appellate Court, however, such power shall not be exercised to fillup the lacuna, but to subserve the ends of justice. These principleshave been laid down in Rambhau v. State of Maharashtra, 2001 (2) CTC 699. 7. The law on this point has been well settled that the taperecorded evidence is admissible in evidence. But, here, we have to seewhether the claim of the petitioner is a bona fide one and whether therelief prayed for is required for meeting the ends of justice.8. The crux of the contention of the petitioner is that he tooksteps before the Judicial Magistrate for receipt of this evidence, but itwas rejected. However, the fact remains that the petitioner has not atall moved his little finger before the trial Court to put forth his pleaas to the availability of such evidence with him at the time of trial ofthe case. In fact, the oral evidence was recorded by the trial Court on24.03.2006, whereas the alleged conversation was recorded on 01.01.2006and 02.01.2006. When that be so, even though he had not filed thepetition for receipt of the said evidence, at least, he might have deposedabout the fact in his oral evidence, which is admittedly not done. Onlybefore the appellate Court, he came forward with the request and the FastTrack Court rightly rejected the same. The finding of the learned FastTrack Judge that the petition was filed only to procrastinate theproceedings is appropriate. 9. It is the further contention of the petitioner that in caseof the evidence being received by the Court, if it is objected to by theother side, it could be proved by an expert. It is also argued that theCourt below has failed to note that the spectrographic technique is a wellestablished scientific test to examine the voice identification; everyvoice is unique and individually characteristic enough to distinguish itfrom others through analysis; voices are identified through comparativevoice prints; the process of identifying the voices visually involvestranslating the wave patterns produced by the voice into a pictorialdisplay called a spectrogram and that the competently trained andcertified experts are available to test the accuracy of tape recordedvoice. 10. This Court is not able to accept the said contention,because, had the petitioner been in possession of the evidence, he shouldhave taken steps by producing it before the trial Court, before deliveringthe judgment. Even in the grounds of appeal before the lower appellateCourt, nothing was whispered in this regard. https://hcservices.ecourts.gov.in/hcservices/

11. Under the circumstances, it is a futile exercise on the partof the petitioner to come forward with the request, which is far fromacceptance. This Court does not find any merit to entertain the reliefprayed for. Hence, this revision is dismissed. Consequently, theconnected Criminal M.P.No.1 of 2007 is also dismissed.dixitSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. Fast Track Court No.III, Dharapuram. 2. Judicial Magistrate, Dharapuram.+1 cc to M/s.N.Manokaran, Advocate Sr.No.56786.AD(CO)dcp/25.9CRL.R.C.No.368 OF 2007