Madras High Court
P.Mariya Selvaraj vs C.Ganesan on 13 June, 2014
Author: P.N.Prakash
Bench: P.N.Prakash
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13.06.2014 Coram: THE HONOURABLE MR.JUSTICE P.N.PRAKASH Criminal Revision Case (MD) No.32 of 2014 P.Mariya Selvaraj : Petitioner/Petitioner/ Accused Vs. C.Ganesan : Respondent/Respondent/ Complainant PRAYER: Criminal Revision Petition filed under Section 397 and 401 of Criminal Procedure Code, praying to call for the records to the order dated 24.10.2013 in Crl.M.P.No.564 of 2013 in S.T.C.No.99 of 2012 passed by the learned Judicial Magistrate No.4, Tirunelveli and set aside the same. !For Petitioner : Mr.B.Rajesh Saravanan ^For respondent : Mr.P.Ramasamy :ORDER
This Criminal Revision Petition has been filed challenging the order dated 24.10.2013 passed in Cr.M.P.No.564 of 2013 in S.T.C. No.99 of 2012 by the Judicial Magistrate No.4, Tirunelveli.
For the sake of convenience the parties would be referred to as the complainant and the accused.
2.The complainant instituted a prosecution against the accused for an offence under Section 138 of the Negotiable Instruments Act in respect of a cheque dated 04.08.2011 for a sum of Rs.2,32,097/-. The trial Court took cognizance of the offence and issued process to the accused for his appearance on 25.05.2012. On 24.05.2012 the accused seems to have met the complainant and had discussed about the case. It is the case of the accused that he had no dealings with the complainant at all and that the cheque for Rs.2,32,097/- was given by the accused to one Sankar through whom the accused had purchased waste cotton for the sum. Therefore, the accused asked the complainant as to why he had instituted this prosecution? The complainant seems to have agreed with the accused that the cheque was not given to him but was given to Sankar and as Sankar had to make some payment to the complainant, he had received the cheque from Sankar in lieu of the payment and filled his name. The accused seems to have recorded this conversation in his mobile phone. On 25.05.2012, the accused appeared before the Court and obtained the copy of the complaint. He pleaded not guilty to the charge and the case proceeded with examination of the complainant. After the chief examination of the complainant was over, the accused cross-examined the complainant. In the course of the cross-examination of the complainant, the accused played the conversation in the open Court which he had recorded in his mobile phone. The trial Court has also recorded about this in its proceedings. The complainant heard the conversation and stated in his evidence that he is not able to recognise the voice. In other words, the complainant did not say that the voice was not his but had stated that he was not able to recognise the voice. The accused suggested to the complainant that a blank but signed cheque for Rs.2,32,097/- was given by the accused to Sankar and that the complainant had lodged this vexatious prosecution without any basis, which suggestion of course, the complainant denied.
3.When the accused was questioned about the incriminating circumstances under Section 313 Cr.P.C., he told the Court about the conversation that he has recorded with the complainant and also that the cheque in question was not issued to the complainant but to one Sankar.
4.Thereafter, the accused filed Cr.M.P.No.564 of 2013 under Sections 65A, 64B r/w. 45 of the Evidence Act requesting the Court to receive the mobile phone containing the conversation which he had recorded and also for obtaining voice sample from the complainant and sending the same for voice comparison to an expert. The complainant filed his counter and strongly opposed the application. The trial Court dismissed the application on 24.10.2013 aggrieved by which the accused is before this Court in this Criminal Revision Petition.
5.Heard the learned counsel for the revision petitioner/accused and the learned counsel for the respondent/complainant.
6.The learned counsel for the accused submitted that the complainant has lodged a prosecution on the ground that the accused had borrowed Rs.2,32,097/- which on the face of it appears improbable because no one will borrow any amount in fractions. The complainant has also not filed any promissory note or any other documents in support of the debt. In this context, he had met the complainant one day prior to the first hearing of the complaint and has recorded the conversation between them in his mobile phone which he wants to use as a piece of evidence to disprove the case of the complainant.
7.Per contra, the learned counsel for the complainant would submit that the accused received the statutory notice but did not give any reply to the statutory notice. He also stated that the prayer of the accused is not properly worded inasmuch as the accused is seeking only the voice sample of the complainant but not willing to give his voice as sample. The learned counsel further submitted that the conversation was recorded without the knowledge of the complainant and therefore, it is a tainted and that illegally collected evidence should not be admitted.
8.Coming to the arguments advanced by both sides, there seems to be some force in the contention of the learned counsel for the accused with regard to the amount of Rs.2,32,097/- being the alleged amount that was borrowed from the complainant without any supporting documents. In the background of this aspect the other contentions of the accused should also be viewed and that he should not be denied a fair opportunity to establish his case in order to discharge the burden under Section 139 of the Negotiable Instruments Act. In this regard, the accused has first played the recorded conversation in the open Court and has asked the complainant to identify his voice. Had the complainant accepted that fact, then the accused would have been able to mark the compact disc containing the conversation as material object in favour of his defence. In this case, the complainant has not completely denied his voice but has merely stated that he is not able to recognise the voice. It may be borne in mind that the complainant admittedly is a retired Superintendent of Police and not a lay man.
9.The argument of the learned counsel for the complainant that illegally collected evidence should not be admitted in the Court of law deserves to be stated only to be rejected because way back in Pooranmal V. Director of Inspection [1994 SCR (2) 705] the Hon'ble Supreme Court has held that in India if any piece of evidence is admissible and relevant it cannot be shut out on the ground that it has been illegally collected unlike in England.
10.There is also force in the argument of the learned counsel for the complainant that the compact disc should be marked and proved and only thereafter, can the Court send the same for voice examination. In a criminal case, no court can compel the accused to be a witness for himself in view of Section 315 of Cr.P.C. It is purely the volition of the accused to waive the protection under Section 315 Cr.P.C. and examine himself as the witness. This Court cannot advise the accused to waive the privilege and get into the witness box, for, it is his exclusive privilege and a constitutional guarantee. As regards the relevancy of such taped conversation, the issue is no more res integra in view of the authoritative pronouncement of the Hon'ble Supreme Court in R.M.Malkani V. State of Maharashtra [1973 1 SCC 471]. If the content of the conversation is relevant to determine the fact in issue, then the conversation is relevant under Section 8 of the Evidence Act. The Compact Disc containing the conversation is relevant under Section 7 of the Evidence Act. Even recently in K.K.Veluchamy v. N.Palanisamy [2011 4 SCALE 61] the Hon'ble Supreme Court has held that a conversation recorded by the plaintiff with the defendant in a suit for specific performance of contract can be admitted into evidence. The next question is, does the trial Court order suffer from any illegality or infirmity? I am unable to agree with the reasons given by the trial court for dismissing the petition. One reason is, the accused had not sent any reply to the statutory notice. The accused has explained this by stating that after he received the notice, he met the complainant and the complainant assured him that he would not proceed any further and it was only an attempt to put pressure on Sankar to make the payment. The accused in the cross-examination of the complainant, has established that there is a financial dealing between the complainant and Sankar which was settled in the Lok Adalat. The Lok Adalat paper was marked as Ex.R1 before the trial Court. Though I am unable to agree with the reasons given by the learned Magistrate for dismissing the application, I also find that the application cannot be allowed without the CD being first marked through some witness. Therefore, I hold that in the event of the accused marking the compact disc in a manner known to law like for example waiving his privilege under Section 315 Cr.P.C. and getting into the witness box, then he should be given liberty to file a fresh application requesting the Court to collect the sample voices of both of them (complainant and accused) and send the same for comparison. This will be in tune with his right of fair trial guaranteed by Article 21 of the Constitution of India. The trial Court is directed to expeditiously complete the proceedings in this case as it relates to the year of 2011.
11.With the above liberty and observations, this Criminal Revision Petition is disposed of.
To The Judicial Magistrate No.4, Tirunelveli.
P.N.PRAKASH, J.
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