K.R Udayabhanu, J.:— The Writ Petitioner, who is the defendant in O.S No. 210/02, the suit instituted for realisation of amounts as per cheque issued has sought to quash the order of the Munsiff declining his request to have the magnetic tape that he has produced, played in the open Court. The conversations he had with the plaintiff on the alleged date of the transaction involving the handing over of the disputed cheque is fully recorded in the cassette, he claims. The suit based on a loan transaction is contested by the defendant alleging that the cheque happened to be transmitted on account of the deception and subterfuge perpetrated by the plaintiff to secure a job as Conductor in the K.S.R.T.C for the son of the defendant. The plaintiff had made him believe that he has got close contacts at the Cabinet level and that only on payment of Rs. 1,75,000/-, the assignment would materialise. The defendant paid Rs. 1,25,000/- in cash and for the balance, a cheque for Rs. 50,000/- was issued. Later, the defendant realised that his son was selected purely on merit and not on account of any intervention by the plaintiff. Thereafter, the defendant instructed his bank to stop payment on the particular cheque. The defendant's son had tape recorded the conversations and discussions made in between the plaintiff and the defendant on the relevant day. It is mentioned in the Writ Petition that the tape and the transcription were marked as Exts. B-11 and B-11(a). Before the case was posted for defendant's son's evidence, I.A No. 1184/03 was filed for playing the tape in the Court for the purpose of identification of the voice of the person whose voice it is professed to be and for establishing the authenticity and correctness of the recording. According to the defendant/writ petitioner, the tape is a vital evidence on his side as it contains a blow by blow account of what transpired on the occasion. The above IA. was dismissed on the ground that the cassette was produced only after the closing of the evidence of the petitioner and also as the same is not seen kept in proper custody and that the copy of the transcript was not deposited in the official record room. It is the above order that is sought to be set aside.
2. So far as the law as to the admissibility of the tape record is concerned, the same is no longer a grey area. The Courts have permitted the same very much prior to the amendment of the Indian Evidence Act by the Information Technology Act, 2000, enlarging the definition of “Evidence” in S. 3 as including electronic records. Really, the Courts can no longer remain confined to the conventional parameters of ‘Evidence’ amidst the ground-breaking advances in science and technology. The Courts in India have admitted tape records as a relevant item of evidence as early as the reported decision in Rup Chand v. Mahabir Parshad, AIR 1956 Pun. 173. The position for quite long, is that tape record is treated as a “Document” coming under S. 3 of the Indian Evidence Act. It was in Ram Singh v. Col. Ram Singh, 1985 Supp SCC 611 : AIR 1986 SC 3, Fazal Ali, J. for the majority laid down specific guidelines regarding the admissibility of a tape recorded statement, fine tuning the process as follows:
(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict pro of to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.
(3) Every possibility of tampering with or erasure of apart of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.
3. It appears that the Trial Court in the instant case has virtually skirted the issue despite the fact that the tape record of the conversations and the transcription of the same were admitted and marked. Once the same are admitted, it is incumbent on the part of the Court to examine the genuineness of the same. On the other hand, the Court has brashly shot down the request to have the cassette played in the open court. It would be helpful in the context to recount the relevance of the tape recorded statements produced as evidence in the trial of a suit or other proceedings. Various decisions of the High Courts and that of the highest Court of the land have laid down that the tape record like photograph of an incident is a record capable of re-presenting the situation admissible under S. 7 and also a relevant fact under S. 8 as the recording of the contemporaneous dialogue is part of res gestae. It is admissible to corroborate under S. 157, to contradict under S. 155(3) and also to test the veracity of the witness under S. 146(1) and for impeaching his impartiality under S. 153 Exception 2 of the Evidence Act It has been held that the above evidence is not hit by Art. 21, nor barred by Art. 20(3) of the Constitution of India, if there was no compulsion. The same is also not hit by S. 162 of the Criminal Procedure Code if it is not made to a police officer in the course of investigation. In Rup Chand's case (opcit), in proceedings over a suit on promissory note, on the question of admissibility of the tape record, Chief Justice Bhandari of the then Punjab High Court observed that the petition raised a question, which is as novel as it is new. The above was the first decision by a superior Court on the point. The Court held that the record of a conversation although by no stretch of imagination can be treated as a statement “in writing or reduced into writing” under S. 3(65) of the General Clauses Act as it is unlike in the case of printing, lithography, photography and other modes of representing or reproducing words in a visible form there is no rule of evidence which prevents a defendant who is endeavouring to shake the credit of a witness by pro of of former inconsistent statements from deposing that while he was engaged in conversation with the witness a tape recorder was in operation, or from-producing the said tape record in support of the assertion that a certain statement was made in his presence. The Court relied on the decisions of the American and English Courts with respect to admissibility of evidence furnished by devices for electro telephonic communications, for dispelling the cloud of misgivings about the admissibility of tape recorded evidence.
4. The above decision was followed by Manindra Nath v. Biswanath, (1963) 67 Cal. W.N 191, wherein the Calcutta High Court permitted the previous statement of the defendant recorded on the tape to be used to contradict the plaintiffs evidence in the Court on condition that it is proved that the instrument accurately recorded the statement even if the same was done behind the back of the witness.
5. The Supreme Court in a precedent setting judgment in S. Partap Singh v. State Of Punjab., (1964) 4 SCR 733, for the first time adjudged the admissibility of the tape recorded telephonic conversations between the then Chief Minister Sri. Pratap Singh Kairon, who allegedly bore ill-will towards a Civil Surgeon and initiated disciplinary proceedings against him cancelling his leave on the eve of superannuation. Both the majority judgment by Justice N. Rajagopala Ayyangar as well as the minority judgment by Justice Raghubar Dayal pronounced approving the admissibility of the tape record of the telephonic conversation of the Civil Surgeon with the Chief Minister and his wife overruling the order of the High Court disallowing the same on the ground that tape recordings are capable of being tampered with. The majority observed that there are few documents and possibly no piece of evidence which could not be tampered with but that would certainly not be a ground on which the Court could reject evidence as inadmissible or refuse to consider it. The above factor would have a bearing only on the weight to be attached to the evidence and not on its inadmissibility. The Court permitted the State on behalf of the Chief Minister to re-tape record the tape recordings produced for-assessing the genuineness of the identity of the voice. In the above case, no dispute was raised as to the identity of the voice as such. The Court extensively relied on the tape recordings of the telephonic conversation and upheld the case set up by the Civil Surgeon that the proceedings against him has been initiated to wreck vengeance on him for incurring the wrath of the Chief Minister for the discredit that he brought to him by the allegations that the petitioner had made in a feature that appeared in the Blitz weekly.
6. In Yusufalli v. State of Maharashtra, AIR 1968 SC 147, a case involving attempt to bribe a civil servant, Bachawat, J. rejected the contention that the alleged recording of the conversation that took place at an arranged trap is hit by Art. 20(3) of the Constitution of India pointing out that there was no compulsion; and also held that the tape recording is done without the knowledge of the appellant is not an objection to its admissibility and that it is a relevant fact and is admissible under Ss. 7 and 8 of the Evidence Act. But it should be received with caution as one of the features of magnetic tape recording is the ability to erase and reuse the recording medium.
7. In Shri N. Sri Rama Reddy, Etc. v. Shri V.V Giri , (1970) 2 SCC 340 : AIR 1971 SC 1162, the five number Bench of the Supreme Court, on an Election Petition examined the entire ramifications and repercussions of the evidence in the form of tape record and also chronicled decisions on the point in India as well as in the other high-profile Common Law countries, i.e England and the United States. The Court noted that although in Hopes v. H.M Advocate, (1960) Scots Law Times 264 and R. v. Mills, (1962) 3 All. E.R 298, the issue came up and the tape records were played before the Jury, the matter was prominently dealt with in R. v. Masqud Ali, (1965) 2 All. E.R 464, wherein the Court of Appeal noted that there is no difference in principle between a tape recording and a photograph. It was noted that the evidence as to things seen through telescopes or binoculars which otherwise could not be picked up by the naked eye have been admitted for quite long. The Court affirmed that the tape records are admissible, provided the accuracy of the recordings can be proved and the voices recorded properly identified and provided also that the evidence is relevant and otherwise admissible. The Court observed in Hopes's case (op. cit.) that the witness evidence of the conversation was as much primary evidence as the evidence from replaying of the tape recorded. Each received it at the same time, the one recording it in the human memory, the other upon a piece of tape. The Court in Rama Reddy's case (op. cit.) held that the previous statement recorded on tape can be used not only to corroborate the evidence given by the witness, but also to contradict the evidence given before the Court as well as to test the veracity of the evidence and also to impeach his impartiality, i.e under Ss. 157, 155(3), 146(1) and 153 Exception 2 of the Evidence Act. The Court observed that the tape itself is primary and direct evidence admissible as to what has been said and picked up by the recorder.
8. In R. M. Malkani v. State Of Maharashtra, (1973) 1 SCC 471 : AIR 1973 SC 157, involving demand for bribe amounting to extortion by Coroner of Bombay, a civil servant, the Court allowed admission of tape recorded conversations obtained at the trap set up holding that it was not tainted by coercion or unfairness quoting Maqsud Ali's case (op. cit) that it is something like the method of informer and of the eavesdropper which is commonly used in the detection of crime and that the only difference here was that a mechanical device was the eavesdropper. But, as the detection is by deception, as a police procedure, the same should be used sparingly and accepted with circumspection, care and caution, the Court of appeal had added. It is not hit by Art. 21 of the Constitution of India or by S. 162 Cr.P.C as the statement was not made to a police officer, the Supreme Court further held. It was in Z.B Bukhari v. B.R Mehra, (1976) 2 SCC 17 : AIR 1975 SC 1788, an election case, the Supreme Court held that the tape records are really ‘Documents’ under S. 3 of the Evidence Act. The Court therein reiterated that the same are admissible on satisfying the following conditions:
“(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who knew it.
(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.
(c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act”
9. It was in Ram Singh's case (supra at para. 2), another election case that the Supreme Court elaborately considered the various facets of the admissibility of the tape record and laid down definite guidelines. The Court has also observed that such evidence should also be received, with some caution and assessed in the light of all the circumstances of each case, as it is possible to be altered by transposition, excision and insertion of words or phrases and such alterations may escape detection and even elude it on examination by technical experts. Continuity, clarity and coherence are all matters that have to be looked into for a fair and reliable assessment. The important feature of such evidence is that if accepted the same would change the fate and face of the lis and clinch the issue, and the controversy between the parties. On the other hand, if detected to be fake, it will not just back-fire but boomerang and non suit the party that produced the evidence. In the above case, the tape records were not relied on as found to be not inspiring confidence. On the analogy of a mutilated document the Court observed that the same was not coherent, distinct or clear. In Quamarul Islam v. S.K Kanta, 1994 Supp (3) SCC 5 : AIR 1994 SC 1733, also an election case regarding corrupt practices, the Court did not rely on the tape recordings as there was no proper evidence as to its custody to rule out the possibility of tampering.
10. Evidence in the form of tape record although singularly advantageous to gauge the truth, on the flip side is the fact that there is a lot of space for manoeuvreing and hence strict pro of as to every aspect of its authenticity and perfection is to be insisted. This aspect was particularly stressed by Justice AR. Lakshmanan (as he then was) in K.S Mohan v. Sandhya Mohan, AIR 1993 Mad 59, in which case the Court substantially relied on the tape recorded evidence produced to establish the infidelity of the wife. Of course, there can be no straight jacket formula.
11. The recording of the voice of a witness for the purpose of comparison with and identification of his earlier recorded voice, can therefore, be allowed by the Court and such comparison is neither expressly nor impliedly prohibited under any statute, the High Court held in Dial Singh v. Rajpal, AIR 1969 P & H 350, while disposing of a Criminal Revision Petition. The Court in Sumitra Debi v. Calcutta Dyeing & Bleaching Works, AIR 1976 Cal. 99, in a suit on accounts warned that anything which is bom of trickery or trapping or cunningness should be very cautiously and carefully considered by the Court; and that ventriloquism is not very uncommon and hence the Court should fully guard against all these possible tampering and manufacturing and should look for independent corroboration and intrinsic evidence before he relies on the tape. In Joginder Kaur v. Surjit Singh, AIR 1985 P & H 128, the Court allowed the appeal of the wife against the decision allowing a decree of divorce under S. 13(1)(iii) of the Hindu Marriage Act, 1955 on the ground that she is suffering from schizophrenia partly relying on her stealthily tape recorded version that she is having the ailment. The recorded voice was not proved or compared with the voice of the wife who was sitting as respondent in lower Court and hence it cannot be held beyond reasonable doubt that the voice recorded is that of the appellant and not that of an imposter, the Court noted. In C.R Mehta v. State of Maharashtra, 1993 Crl. LJ. 2863, a case of offering bribe to the Home Minister of the State to get COFEPOSA detention orders revoked, negotiations tape recorded at trap laid by the police, the Court declined to place reliance as the tapes ought to have been sealed at the earliest point of time and not opened except under orders of Court. In the above matter, it was found that on each occasion after recording was done, the tape was sealed and later the same tapes were opened and the balance part of it was used on the next occasion. The tapes were not sufficiently audible also. Evidently, the matter involved was a criminal investigation. In the instant case, indiscretion is writ large in the attitude of the Court below in declining the application of the defendant to play the tape in Court after receiving it in evidence. It appears to me that this Court is eminently justified in interfering to set right the same in exercise of the extraordinary jurisdiction. The order of the Court below in I.A No. 1184/03 is quashed. The Court below is directed to take whatever steps required including playing the tape to ascertain its authenticity keeping in mind the broad guidelines laid down by the Supreme Court and the precedents in the matter.
12. The Writ Petition is allowed as above.