2014 (6) TMI 1036 - HC - Indian Laws

Dishonor of Cheque - case of accused is that the cheque in question was not issued to the complainant but to one Sankar - rejection of evidence - accused also submitted that the complainant has lodged a prosecution on the ground that the accused had borrowed ₹ 2,32,097/- which on the face of it appears improbable because no one will borrow any amount in fractions - HELD THAT - There seems to be some force in the contention of the learned counsel for the accused with regard to the amount of ₹ 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. Admissibility of evidence - HELD THAT - 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 if any piece of evidence is admissible and relevant it cannot be shut out on the ground that it has been illegally collected. 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. Petition disposed off.

Summary

Issues:
Challenge to order passed in Cr. M.P. No. 564 of 2013 in S.T.C. No. 99 of 2012 by Judicial Magistrate, Request for admission of mobile phone conversation as evidence, Voice sample comparison request, Admissibility of illegally collected evidence, Fair trial rights under Article 21.

Analysis:

1. The complainant filed a prosecution against the accused under Section 138 of the Negotiable Instruments Act for a cheque issued for Rs. 2,32,097. The accused claimed the cheque was given to a third party, not the complainant. During trial, the accused played a recorded conversation in court to challenge the complainant's claim. The accused filed an application under Evidence Act requesting the court to admit the mobile phone containing the conversation and obtain a voice sample for comparison. The trial court dismissed the application, leading to this challenge.

2. The accused argued that the complainant's claim lacked supporting documents and that the recorded conversation was crucial evidence to disprove the case. The complainant contended that the recording was done without consent, making it tainted evidence. The court noted the importance of fair opportunity for the accused to establish his defense, especially in light of the disputed amount and lack of documentation supporting the debt claim.

3. The court addressed the admissibility of illegally collected evidence, citing a previous Supreme Court ruling that admissible evidence cannot be excluded based on how it was obtained. The complainant objected to the voice sample request, highlighting the accused's refusal to provide his own voice sample. The court emphasized the relevance of the recorded conversation under the Evidence Act and previous case law supporting the admissibility of such evidence.

4. Regarding the trial court's dismissal of the application, the court found flaws in the reasoning but also noted the necessity of properly marking the compact disc as evidence before proceeding with voice sample comparison. The court directed the accused to mark the disc appropriately, possibly by waiving his privilege under the law, and then file a fresh application for voice sample comparison, ensuring a fair trial as guaranteed by Article 21 of the Constitution of India.

5. The court disposed of the Criminal Revision Petition, granting the accused liberty to follow the specified procedure for voice sample comparison, emphasizing the importance of fair trial rights and expeditious completion of the case related to the 2011 incident.