Karnataka High Court
Ramesh @ Balram vs The State Of Karnataka on 22 September, 2016
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 22ND DAY OF SEPTEMBER 2016
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.5590 OF 2016
BETWEEN:
Ramesh @ Balram,
Son of Late Gopalkrishna,
Aged about years,
Residing at No.31,
13th Cross, 5th Block,
11th A Main Road,
Jayanagar,
Bengaluru City.
...PETITIONER
(By Shri D.R.Ravishankar, Advocate for Shri Satyanarayana
Chalke, Advocate)
AND:
The State of Karnataka,
By Upparpet Police Station,
Bengaluru - 560 009.
...RESPONDENT
2
(By Shri Chetan Desai, Government Pleader for Respondent /
State)
*****
This Criminal Petition filed under Section 482 code of
Criminal Procedure, 1973, praying to set aside the order dated
2.7.2015 passed by the IX Additional Chief Metropolitan
Magistrate Bangalore in C.C.No.325/2012 and order dated
27.4.2016 passed by the LVIII Additional City Civil and
Sessions Judge, Bengaluru City in Crl.R.P.567/2015 the
rejecting the application of the petitioner filed under Section
243 of Cr.PC read with Section 45 of Evidence Act and
consequently to allow the application filed by the petitioner.
This Criminal Petition coming on for Admission this day,
the court made the following:
ORDER
The petitioner was accused no.2 before the court below. It is alleged that the petitioner has committed an offence punishable under Section 379 of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC', for brevity). The background is as follows:
2. The petitioner is said to have created a mortgage by deposit of title deeds with PW.1. At that point of time, he is 3 said to have redeemed one of the mortgages and has created further loan on the same security. Thereafter, it is claimed that PW.2, the Manager of the bank of PW.1, is said to have found at a later point of time, from an examination of the locker where the documents of title pertaining to the second mortgage created by the petitioner were kept, that the documents were missing and it was alleged that on an earlier occasion, the petitioner and others had sought examination of the documents and at that point of time, they may have stolen the same. On that note, a case was registered initially for an offence punishable under Sections 420 and 120-B of the IPC and thereafter, an offence punishable under Section 379 IPC is added. It transpires that at the trial, PW.2 was examined and in the course of the cross-
examination, he was confronted with the voice recording of the conversation between the petitioner and the said PW.2. Though there was an admission of the talks of compromise, the voice recording which was played back to him at the trial was denied as being that of his. The petitioner thereafter had sought 4 to invoke Section 243 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'CrPC', for brevity) read with Section 45A of the Evidence Act, 1872, seeking that the voice sample of PW.2 along with the voice recording be sent for examination by an expert in terms of Section 45A. However, the Magistrate had formed an opinion that though the stage to examine the relevance of the conversation has not arrived, since the petitioner was seeking reference of the said voice recording to an expert, it has examined the content of the conversation in question and has expressed an opinion that the conversation was between PW.2 and the present petitioner, who was accused no.2 and since PW.2 was only a manager and did not have tacit consent of PW.1,who was the authorized person who could have authorized any compromise, the Magistrate has come to a conclusion that it would not establish the contention that it was a false case foisted, only to bring about compromise and to ensure that the petitioner settle the amount demanded much beyond the value of the property. And therefore has concluded 5 that it was not necessary for the voice recording to be referred to an expert.
3. However, the Magistrate while observing that since PW.2 had categorically denied the voice recording as being his, the burden was on the petitioner to prove the same. In the face of such an opinion having been formed, notwithstanding the opinion already expressed by the Magistrate as to the relevance or otherwise of the conversation that is so recorded, the petitioner was yet not enabled to rely on the same for whatever it is worth, if he fails to prove that the voice recording was that of PW.2 and the only manner in which such recording can be proved to be that of PW.2 is in the manner prescribed under the Evidence Act. Since the electronic evidence can only be established or proved before a court of law by obtaining an opinion of the Examiner of electronic evidence, as referred to in Section 79A of the Information Technology Act, 2000 and since there is no other manner of establishing the veracity of 6 such electronic evidence, the only recourse open to the petitioner was to make this application. Therefore, it is evident that he would be seriously prejudiced if he is unable to establish, in the first place, that the voice recording was that of PW.2.
4. Therefore, notwithstanding the opinion that is prematurely formed by the trial court, as to the relevance of the conversation between PW.2 and accused no.2, the petitioner, insofar as his contention that it is a false case that is foisted with ulterior motives by the complainant, it would be necessary for the petitioner to sustain his defence that the conversation was true and it was that of PW.2 and further, to substantiate his case, it is always open to him notwithstanding the opinion already expressed by the Magistrate as regards the relevance of the conversation. Therefore, not only the Court of the Magistrate, but also the lower appellate court was not justified in negating the attempt on the part of the petitioner to 7 seek reference of the recording and the voice sample of PW.2 for examination by the Examiner of electronic evidence.
Consequently, the petition is allowed. The orders impugned are quashed. The Magistrate is directed to refer the voice sample as well as the voice recording and such other material, as may be necessary, to the Examiner of electronic evidence for his expert opinion and without such opinion, the court shall not proceed to judgment.
Sd/-
JUDGE nv