Havovi Kersi Sethna v. Kersi Gustad Sethna
(2011) 3 Mah LJ 564
In the High Court of Bombay
Notice of Motion No. 8 of 2010 in Suit No. 16 of 2008
Before Justice Smt. Roshan Dalvi
Decided on January 28, 2011

Relevancy of the case: Whether taped conversation on a CD can be relied upon as a document?

 Statutes & Provisions Involved

• The Code of Civil Procedure, 1908 (Order VII Rule 14(4))
• The Indian Evidence Act, 1872 (Section 3, 63, 65B)

Relevant Facts of the Case

• Parties in the case are husband and wife. The petition for divorce and other ancillary reliefs is pending trial.
• The husband (defendant) has relied upon handwritten diaries of the wife (petitioner) and a Compact Disk (CD) which contains tape-recorded conversation between the husband and wife for which the husband has also presented a manuscript. The handwriting in the diary is admitted by the wife to be hers.
• The dispute is regarding the taped conversation on the CD. The husband has not filed an affidavit of the documents. The wife contended that the conversation could have been recorded on a tape recorder, audio cassette, MP3 Player, Dictaphone, computer, or mobile phone.
• The wife has neither admitted nor denied the conversation. The husband seeks to use it in her cross-examination.

Opinion of the Bench

• The defendant’s Advocate aims to bring out some facts in the cross-examination. The very purpose of the cross-examination will be frustrated if the documents with which a witness of the other side of the plaintiff’s witness is to be confronted is shown to or inspected by that party earlier. This is the reason why Order 7, Rule 14 and Order 8, Rule 4 carve out exceptions for documents required to be produced for the cross-examination.
• The CD sought to be relied upon by the plaintiff is a copy obtained by the mechanical/electronic process of having the original tape-recorded conversation uploaded on a computer from the original electronic record and copied on the CD. Such copy is, therefore, secondary evidence under section 63 of The Indian Evidence Act, 1872 and, therefore, can be used only upon production of the original record of such taped conversation under section 65B of the same.

Tape recorded conversation is held admissible if

• it is relevant,
• if the voice is identified, and
• the accuracy of the tape-recorded conversation is proved by eliminating the possibility of erasing the tape-recorded conversation
• The accuracy of the tape-recorded conversation is of utmost importance since the document, which is a CD having the tape-recorded conversation, is liable to eraser or mutilation. It would be for the defendant to show that it was the original recording, as mentioned by the defendant himself. This could be done by producing the initial record or the original electronic record. This original electronic record, which is primary evidence, is the instrument on which the original conversation is recorded.
• The defendant has not produced this evidence. The defendant has not shown the mechanical/electronic process by which the CD was obtained. The defendant has relied upon the CD per se. That, being a copy, is secondary evidence.

Final Decision

• The defendant is entitled to rely upon the recorded conversation on the CD by the fact of production of the CD in the cross-examination of the plaintiff. If the plaintiff admits the contents, it would be read in evidence. If the plaintiff disputes the contents, the defendant would have to prove, by direct or circumstantial evidence in his own examination-in-chief, the accuracy of the recorded conversation.
• The defendant may produce any other circumstantial evidence to prove the authenticity of the CD as he would for any other documentary evidence.
• The defendant would also be entitled, but as a last resort, to have the forensic evidence to identify the voice of the plaintiff by having the voice of the plaintiff recorded as an admitted document and compared by an expert in the forensic laboratory to verify that voice with the voice on the taped conversation on the CDs.

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