Rajeev Purushothaman v. M.C. Gopala Pillai & Anr
2012 IndLaw KER 3163
In the Kerala High Court
CRMC 3452/2011
Before Justice N.K. Balakrishnan
Decided on January 31, 2012

Relevancy: Admissibility of a conversation recorded in the CD.

Statutes & Provisions Involved
• The Negotiable Instruments Act, 1881 (Section 138)
• The Information Technology Act, 2000 (Section 2)
• The Indian Evidence Act, 1872 (Sec 3, 64, 65)

Relevant Facts

• The accused who is facing trial in a case filed under Sec.138 of N.I. Act has moved this Court to quash Annexure A order. During the defence stage, the petitioner filed an application before the learned Magistrate to admit a video recorded CD in evidence. According to him, he wanted to contend that there was a conversation with the complainant at his residence on 20.8.2008 and also on 3.4.2009 which took place near to the Court hall and the conversation would reveal the falsity of the case put forward by the complainant.

Prominent Arguments by the Advocates

• Learned counsel for the accused submitted that the authenticity of the CD would arise for consideration only after evidence is given by the party who has produced the CD in court as to the circumstances under which it was recorded. The acceptability of the contents of the CD has to be determined later for which CD can be played in the court itself.
• Learned counsel for the accused has also relied on the Apex Court decision in R.M. Malkani v. State of Maharashtra [AIR 1973 SC 157].
• The decision of the Delhi High Court in Devesh Kumar v. State dated 10.2.2010 was cited by the learned counsel for the complainant. In that case, it was found that the court cannot look to the computer-generated sheets marked for the reason that the same was not proved to be the electronic record generated on sheets.
• The learned counsel for the complainant has relied on the decision in Perumal v. Star Tours and Travels (India) Ltd. [2010 (3) KLT SN 15 (C.No.18)] in support of his submission that electronic record would be admissible in evidence only if the record produced satisfies the conditions laid down under Sec. 65B(2) and contains a certificate as contemplated by Sec. 65B(4).

Opinion of the Bench

• According to the bench, when a case is referred to the mediation, in order to ventilate its grievances, a party may state so many matters beyond the pleadings so as to appraise the mediators. All those matters may not be part of the pleadings the parties might have produced before the court. The very object would be frustrated if unscrupulous elements try to exploit the situation by recording the conversation and then making use of it as evidence. If it was illegally obtained, that also would be a reason not to place implicit reliance on the same. Thus, the probative value of the same will certainly be considered by the Magistrate after recording evidence pertaining to the same that may be adduced by the accused or any witness competent to speak with regard to same.

Final Decision

• In the result, this Crl.M.C. is disposed of as if the accused wants to bring the said CD in evidence and if he lets in evidence with regard to the reception of the CD, the learned Magistrate will decide the matter in accordance with the law. Petition disposed of.

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