JOSE VARGHESE v. N.S AJAS

The original suit has been filed by the plaintiff in O.S.No.52 of 2017 of Additional Sub Court, Kottayam. The suit has been filed praying to set aside sale deeds Nos.604/2016 and 216/2016 of Kuravilangad SRO executed by the petitioner in favour of the 1st respondent. The petitioner has produced Ext.P2 proof affidavit filed by him in the suit. It can be seen from Ext.P2 that a loan had been availed of from the Bank of India, and the Bank had initiated proceedings under the SARFAESI Act for the sale of the mortgaged property. A possession notice was issued by the Bank on 8.2.2016. The petitioner and the 1st respondent had entered into an agreement on 4.3.2016 for the sale of the property for a consideration of `2.25 Crores. Later, on 13.4.2016, the impugned sale deeds were executed in favour of the 1st respondent. It is also stated that a sum of `1 Crore 49 Lakhs was paid by the 1st respondent after obtaining a loan from the Punjab National Bank for the purchase of the property, and a sum of `1 Crore 30 Lakhs O.P.(C)No.52 of 2024 3 out of the said amount was used for closing the loan of the petitioner in the Bank of India. The petitioner has also narrated the way the balance amount of the sale consideration was paid. The case of the petitioner is that the petitioner continued to be in possession even after the sale since the 1st respondent had agreed to reconvey the property when the petitioner paid off the amount that had been expended by the 1st respondent. According to the petitioner, there is an agreement for reconveyance at the time of execution of the sale deed. However, there is no document to show any agreement for reconveyance, even though the sale deeds were preceded by an agreement for sale.

2. According to the petitioner, the 1st respondent had taken possession of the property when the petitioner was abroad and thereafter sold the property to the 2nd respondent. It is also stated that a suit had been filed for injuncting the respondents from entering into the property, which was dismissed for default. Initially, the suit was filed with a prayer for cancellation of the document. Later, by an amendment, a prayer for direction to reconvey the property has also been included. The parties went to trial, and the petitioner and the 1st respondent have been examined. Pending the trial, the petitioner produced a compact O.P.(C)No.52 of 2024 4 disc (CD), and a contention was taken that the compact disc contained a voice recording of the 1st respondent wherein he has admitted the agreement to reconvey the property. Initially, the application for recalling DW1 (1st respondent) for the purpose of confronting him with the CD was rejected by the trial court. The petitioner had approached this Court in O.P.(C)No.1727/23, which was disposed of by Ext.P3 judgment. This Court set aside the order passed by the court below and directed the trial court to reconsider I.A.No.25/2023. The court specifically said that even if DW1 is recalled, it does not mean every evidence or document sought to be marked through him or confronted requires to be admitted in evidence and that it is a matter for the trial court to consider taking note of the objections of the parties. This Court also directed the trial Judge to endeavour to dispose of the suit itself at the earliest, but not later than eight months from the date of receipt of a copy of the judgment. The judgment is dated

21.09.2023.

3. Thereafter, the trial court reconsidered the petition and permitted the petitioner to recall DW1. The CD was read in the presence of the witness, and when the witness was confronted with the voice recording, he denied that it was his voice. In the above O.P.(C)No.52 of 2024 5 circumstances, the petitioner has preferred an application seeking a direction to the court to take a voice sample of DW1 and to send it for comparison along with the voice recording in the CD for the purpose of ascertaining whether the voice available in the CD is the same as that of the 1st respondent. The above application is rejected by the trial court by Ext.P8 order. Ext.P8 order has been challenged in this original petition.

4. Ext.A12 is the CD. According to the petitioner, Ext.A12 contains the recording of a conversation between the 1st respondent and him in the year 2016. The petitioner had got the plaint amended by including a prayer for reconveyance. The voice clip allegedly relates to an admission regarding the reconveyance by the 1st respondent. The trial court noticed that even the amended plaint does not contain any pleading regarding the telephonic conversation between the plaintiff and the 1st defendant in the year 2016. The case sought to be put forward by the plaintiff that the plaint schedule property was entrusted by the 1st respondent to a third party, and money borrowed from that party by DW1 is also not pleaded. There are also no pleadings with respect to any understanding between the plaintiff and the 1st defendant to pay money to any third party by the plaintiff to obtain O.P.(C)No.52 of 2024 6 a deed of reconveyance in his favour. The plaintiff examined PW8, who is stated to have copied the voice recording on the CD. Certificates under Section 65 of the Indian Evidence Act have also been produced, which are dated 22.3.2023 and 4.9.2023. PW1 has given evidence that the conversation in Ext.A12 is in his voice. In the petition seeking direction to compare the voice clipping, the petitioner has stated that the conversations are dated 5.2.2017 and 6.2.2017. In the proof affidavit in lieu of examination in chief, PW1 stated that the conversation was in the year 2016 regarding the debt, payment of interest, etc. A reading of the evidence of PW8 will show that he does not remember the date on which the conversation was recorded. It is also stated that he had recorded the conversation onto the hard disc of a desktop computer from a mobile phone, and thereafter, he had copied the voice clip from the desktop computer to the CD. It is further stated that the entire recording in the desktop computer had been erased at the request of the petitioner. Admittedly, the original voice clipping, which was available on the mobile phone, and the first copy, which was available on the hard disk, are no longer available to compare the voice clipping on the CD. The trial court noticed that the telephonic conversation between PW1 and DW1 by referring to a third party is O.P.(C)No.52 of 2024 7 not a fact in issue in the case and such a contention was taken only at the time of examination of PW1. It is further noted that the plaintiff has already adduced evidence in support of the proof of Ext.A12, and the said evidence can be appreciated by the court along with the nature of the pleadings and the reliefs claimed in the suit and the evidence of the accused and there is no reason to direct the 1st defendant to give his voice recording so as to prove Ext.A12. Another reason stated is that the petitioner has not specified any laboratory to which the voice clip should be sent in the application but left it to be determined by the court.

5. The counsel for the 2nd respondent transferee submitted that DW1 had already been recalled pursuant to the orders of this Court, and the only purpose for which the recalling was done was to confront him with Ext.A12. The said purpose has already been achieved; hence, no purpose will be served in further dragging the trial. It is also submitted that since the original recording in the mobile phone is not produced, no reliance can be placed on the copy of a copy from the original. The counsel for the 1st respondent submitted that the 1st respondent cannot be compelled to give his voice sample. Reliance is placed on the judgment in O.P.(C)No.52 of 2024 8 H. Chandrashekar v. Shafiq Ali Khan [2000 SCC OnLIne Kar. 159], wherein the Karnataka High Court has specifically held that the inherent powers available under Section 151 of the Code of Civil Procedure, 1908, cannot be exercised for compelling a person to give his voice sample for the purpose of comparison with a voice which is already recorded. The court found that it would amount to interfering with his rights and liberty under Article 21 of the Constitution of India. The facts in the said case are similar to the case under consideration. However, the Karnataka High Court was not considering a case where the voice clip available is a copy of the copy of the original. The court found that powers under Section 151 of the Code of Civil Procedure can be exercised ex debito justitiae and not on the mere invocation of the parties or on the mere volition of the Courts. The court referred to the judgment in Rm. P. M. Ranganathan Chettiar vs. Chinna Lakshmi Achi [AIR 1955 Mad. 546], wherein it was held that the court could draw an adverse inference against a party who refuses to examine himself or herself, but the Court has no power to compel a party to be examined by a doctor against his or her consent. According to the court, such an order would be tantamount to treating a human being as a material object, which no Court should do under its O.P.(C)No.52 of 2024 9 inherent power. The judgment of the Delhi High Court in Vinod Kumar v. State [1981 Crl. L.J. 927] was referred to state that there is nothing in the Evidence Act that even remotely suggests that the courts have the power to call upon a prosecution witness to get his sample voice for comparison with the disputed tape-recorded voice.

6. The counsel for the petitioner relied on the judgment of a learned Single Judge of this Court in Abu Thahir v State of Kerala & Anr. [2022 (7) KHC 240]. This Court was considering the question whether the accused could be directed to give a voice sample. The challenge in the said case was against a direction issued by the Special Judge to the 1st accused in a crime to appear before the Director of All India Radio Station, Kozhikode, for the purpose of taking a voice sample. The request was rejected by the Special Judge finding that there was no certification under Section 65B of the Evidence Act and the official phone in which the voice had been recorded had not been seized or produced. After seizing the phone, fresh applications were filed. On the first application, the direction was issued for recording the sample voice. The court posed a question whether in the absence of an express provision in the procedure law, a Magistrate or Special Judge can authorise the O.P.(C)No.52 of 2024 10 investigating agency to record the voice sample of the accused for comparison with the disputed voice of the accused. Another question posed was whether a judicial order compelling an accused to give his/her voice sample amounts to testimonial compulsion under Article 20(3) of the Constitution of India. On the first query, this Court answered that in view of the judgment in Ritesh Sinha v. State of Uttar Pradesh and Another [2019(4) KHC 183], it has to be held that in the absence of a procedural law, the Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. On the second question, this Court noticed the observation of the Apex Court in Ritesh Sinha (supra) that the issue is interesting and debatable, but no opinion is being rendered since it has not been argued. The Court also observed that the question whether the fundamental right to privacy cannot be construed as absolute and must bow down to compelling public interest, is not being considered since the issue has not been raised elaborately. This Court is not concerned in this case with the investigation into a crime. The Court is concerned with the power under Section 151 of CPC and whether the said power can be exercised for compelling O.P.(C)No.52 of 2024 11 a witness to give his voice sample. The observations in the above said judgment cannot be applied to the case on hand.

7. The trial court has given sufficient reasons for denying the prayer for taking the voice sample. The challenge in the suit is against a registered document. According to the plaintiff, there was an agreement to reconvey the property. The court has found that there is no pleading regarding any conversation between the plaintiff and the 1st respondent, which has been recorded in a mobile phone and later copied to a CD. The case of such a conversation is put up only at the stage of examination of PW1. The prayer is for setting aside a registered document of sale, which can be allowed only on limited grounds. Section 65B of the Evidence Act is a provision relating to the admission of electronic evidence, and it only requires certification. Whether the certification is satisfactory or not is a matter to be gone into in trial. The petitioner's case itself is not very clear, since at one place, he says that the voice was recorded in 2016, and at the other place, he says that the voice was recorded over the period of two days in February, 2017. Admittedly, the suit does not have any such pleading. As such, I do not find any reason to interfere with the order of the trial court in rejecting the application since I O.P.(C)No.52 of 2024 12 do not find any reason to compel the 1st respondent to give his voice sample for the purpose of enabling the plaintiff to prove a fact which is not even pleaded. The original petition fails and is dismissed. Sd/- Sd/- T.R. RAVI JUDGE O.P.(C)No.52 of 2024 13 APPENDIX OF OP(C) 52/2024 PETITIONER EXHIBITS EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 TRUE COPY OF THE PLAINT IN O.S 52/2017 ON THE FILE OF THE HON'BLE SUB COURT, KOTTAYAM DATED 17.03.2017 TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE PETITIONER DATED 03.12.2022 TRUE COPY OF THE JUDGEMENT DATED 21.09.2023 TRUE COPY OF THE CERTIFICATE AS PER SECTION 65B OF THE INDIAN EVIDENCE ACT DATED 08.11.2023 TRUE COPY OF THE APPLICATION PETITION FILED BY THE PETITIONER DATED 08.11.2023 TRUE COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT DATED 21.11.2023 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT DATED 18.11.2023 TRUE COPY OF THE ORDER OF THE ADDITIONAL SUB COURT KOTTAYAM DATED 12.12.2023