TMI Blog2014 (6) TMI 1036X X X X Extracts X X X X X X X X Extracts X X X X ..... ntentions 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 Pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties 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 ₹ 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 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 vo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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