IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 20/11/2007

CORAM :

THE HONOURABLE MR. JUSTICE A. KULASEKARAN

C.R.P. (PD) No. 2657 of 2007
  and
  M.P. No.1 of 2007

G. Shyamala Ranjini .. Petitioner

Versus

M.S. Tamizhnathan .. Respondent

Revision under Article 227 of the Constitution of India
against the fair and decreetal Order dated 21.07.2007 and
made in I.A. No. 70 of 2007 in HMOP No. 96 of 2004 on the
file of Sub Court, Mettur.

For Petitioner : Mr. S.V. Jayaraman, Sr. Counsel for Mr. N.A. Nissar Ahamed

For Respondent : Mrs. Hema Sampath, Sr. Counsel for M/s. V.N.S. Law Firms

ORDER

The respondent in HMOP No. 96 of 2004 on the file of

Sub Court, Mettur, is the revision petitioner herein. The

said HMOP was filed for dissolution of marriage by the

respondent herein. In the said HMOP, I.A. No. 70 of 2007

was filed by the respondent herein to receive the audio CD,

which was allowed by order dated 21.07.2007, which is

questioned in this revision petition.

2. Mr. S.V. Jayaraman, learned senior counsel

appearing for the counsel for the revision petitioner

submitted that the respondents case is that the petitioner

abused in filthy language and threatened the respondent in

his cell phone which was recorded in it and re-recorded in

audio CD, if so, the cell phone of the respondent could be

marked, but the same is not done and produced only the audio

CD, which is not a primary evidence; that the audio CD is

fabricated one and inadmissible, which was ordered to be

taken into evidence by the trial court, hence, the same is

liable to be set aside. In support of his contention, the

learned senior counsel relied on the decision (J. Yashoda

vs. K. Shobha Rani) 2007 (4) TNLJ 228 (Civil) wherein the

Honourable Supreme Court held thus:-

8. The rule which is the most
  universal, namely that the best
  evidence the nature of the case will
  admit shall be produced, decides this
  objection that rule only means that, so
  long as the higher or superior evidence
  is within your possession or may be
  reached by you, you shall give no
  inferior proof in relation to it.
  Section 65 deals with the proof of the
  contents of the documents tendered in
  evidence. In order to enable a party
  to produce secondary evidence it is
  necessary for the party to prove
  existence and execution of the original
  document. Under Section 64, documents
  are to be provided by primary evidence.
  Section 65, however permits secondary
  evidence to be given of the existence,
  condition or contents of documents
  under the circumstance mentioned. The
  conditions laid down in the said
  section must be fulfilled before
  secondary evidence can be admitted.
  Secondary evidence of the content of a
  document cannotbe admitted without non-
  production of the original being first
  accounted for in such a manner as to
  bring it within one or other of the
  cases provided for in the Section. In
  Ashok Dulichand v. Madhavlal Dube and
  Another (1975 (4) SCC 664), it was
  inter alia held as follows:-

After hearing the learned counsel
  for the parties, we are of the opinion
  that the order of the High Court in
  this respect calls for no interference.
  According to clause (a) of Section 65
  of Indian Evidence Act, secondary
  evidence may be given of the existence,
  condition or contents of a document
  when the original is shown or appears
  to be in possession or power of the
  person against whom the document is
  sought to be proved or of any person or
  of reach of, or not subject to, the
  process of the Court of any person
  legally bound to produce it, and when,
  after the notice mentioned in Section
  66 such person does not produce it.
  Clause (b) to (g) of Section 65 specify
  some other contingencies wherein
  secondary evidence relating to a
  document may be given, but we are not
  concerned with those clauses as it is
  the common case of the parties that the
  present case is not covered by those
  clauses. In order to bring his case
  within the purview of clause (a) of
  Section 65, the appellant filed
  applications on July 4, 1973, before
  respondent NO.1 was examined as a
  witness, praying that the said
  respondent be ordered to produce the
  original manuscript of which, according
  to the appellant, he had filed
  photostat copy. Prayer was also made
  by the appellant that in case
  respondent no.1 denies that the said
  manuscript had been written by him, the
  photostat copy might be got examined
  from a handwriting expert. The
  appellant also filed affidavit in
  support of his application. It was
  however, nowhere stated in the
  affidavit that the original document of
  which the photostat copy had been filed
  by the appellant was in the possession
  of respondent No.1. There was also no
  other material on the record to
  indicate the original document was in
  the possession of respondent No.1. The
  appellant further failed to explain as
  to what were the circumstances under
  which the photostat copy was prepared
  and who was in possession of the
  original document at the time its
  photograph was taken. Respondent No.1
  in his affidavit denied being in
  possession appeared to the High Court
  to be not above suspicion. In view of
  all the circumstances, the High Court
  came to the conclusion that no
  foundation had been laid by the
  appellant for leading secondary
  evidence in the shape of the Photostat
  copy. We find no infirmity in the
  above order of the High Court as might
  justify interference of this Court.

3. Mrs. Hema Sampath, learned senior counsel

appearing for the counsel for the respondent submitted that

the conversation of the revision petitioner have been

recorded by the respondent in audio CD, hence, it is

incorrect to say that it was recorded originally in cell

phone and re-recorded in audio CD; that the Court below

ordered to receive the said audio CD, while doing so, it

found that the audio CD alone would not prove the case of

the respondent; that when the CD is played, the conversation

found recorded is concerned, opportunity will be granted to

the petitioner herein for cross-examination and Section 65-B

of the Indian Evidence Act contemplates that any information

contained in electronic record, which is printed on a paper,

stored, recorded or copied in optical or magnetic media

produced by a computer, shall be deemed to be also a

document and in the interest of justice, it warranted to

receive the said audio CD. The learned senior counsel

relying on the decision reported in (Bipin Shantilal Panchal

vs. State of Gujarat and another) (2001) 3 scc 1 submitted

that archaic practice is that admissibility of document or

other item of evidence as and when objections thereto were

raised and then detailed orders were passed either by

upholding or overruling the said objections and after

passing the orders, the trial court waited for days and

weeks for the parties consent to go before higher courts for

the purpose of challenging the said interloctuary orders can

be avoided and whenever an objection is raised during the

evidence collecting stage, regarding admissibility of any

material in evidence or other items of evidence, the trial

court can make note of such objection and mark the objected

document tentatively as an exhibit in the case subject to

such objections to be decided at the last stage in the final

judgment, hence, this Court may dismiss this revision

petition and leave the matter to be decided by the trial

court. The relevant portion of the judgment in para -14 of

(Bipin Shantilal Panchal vs. State of Gujarat and another)

(2001) 3 scc 1 is as follows:

14.When so recast, the practice
  which can be a better substitute is
  this. Whenever an objection is raised
  during evidence-taking stage regarding
  the admissibility of any material or
  item of oral evidence the trial court
  can make a note of such objection and
  mark the objected document tentatively
  as an exhibit in the case (or record
  the objected part of the oral evidence)
  subject to such objections to be
  decided at the last stage in the final
  judgment. If the court finds at the
  final stage that the objection so
  raised is sustainable, the Judge or
  Magistrate can keep such evidence
  excluded from consideration. In our
  view, there is no illegality in
  adopting such a course. However, we
  make it clear that if the objection
  relates to deficiency of stamp duty of
  a document the court has to decide the
  objection before proceeding further.
  For all other objections the procedure
  suggested above can be followed.

The learned senior counsel for the respondent also

relied on the decision reported in (Munusamy Kounder vs.

Balu) 2002-3-Law Weekly 250 wherein a learned single Judge

of this Court following the decision of the Honourable

Supreme Court in Bipin Shantilal Panchals case, held in

Para No.13 thus:

13.Accordingly, when the
  petitioner in CRP No. 1643 of 2001 as
  well as the respondent in CRP No. 2808
  of 2001 come with an explanation that
  the petitioner in CRP No. 2808 of 2001
  (respondent in CRP 1643 of 2001) is in
  possession of the original agreement
  dated 25.08.1986, the mere non-
  production of the original document by
  itself cannot be a valid reason to
  refuse to permit the petitioner in CRP
  No. 1643 of 2001 as well as the
  respondent in CRP No. 2808 of 2001 to
  mark a photocopy of the agreement dated
  25.08.1986, as the petitioner in CRP
  No. 2808 of 2001 (respondent in CRP No.
  1643 of 2001) is in no way prejudiced
  by permitting the petitioner to mark
  the document, as his right to object as
  to the admissibility of the said
  document is always protected under law.
  Moreover, while permitting the
  petitioner in CRP No. 1643 of 2001 as
  well as the respondent in CRP No. 2808
  of 2001 to mark the photocopy of the
  agreement dated 25.08.1986, under Order
  13 Rule 2 of the Civil Procedure Code,
  it is not permissible for the Court to
  go into the admissibility or otherwise
  of the document in question, as held in
  Mohammed Ali S. vs. Basheer Ahamed
  case, referred supra.

The trial court relied on the decision reported in (N.

Srirama Reddy and others vs. V. Giri) AIR 1971 SC 1162

wherein in Para No.22, it was held by the Honourable

Supreme Court thus:

22.Having due regard to the
  decisions referred to above, it is
  clear that a previous statement, made
  by a person and recorded on tape, can
  be used not only to corroborate the
  evidence given by the witness in Court
  but also to contradict the evidence
  given before the Court, as well as to
  test the veracity of the witness and
  also to impeach its impartiality.
  Apart from being used for
  corroboration, the evidence is
  admissible in respect of the other
  three last mentioned matters, under
  Section 146 (1), Exceptions 2 to
  Section 153 and Section 155 (3) of the
  Evidence Act.

4. This Court carefully considered the argument of

the counsel for both sides and perused the records placed

for consideration. Even before deciding the admissibility

of the audio CD in dispute, it is necessary to read para-3

of the affidavit filed by the respondent herein in support

of I.A. No. 70 of 2007 before the court below, which was

also relied on by the learned counsel for both sides, which

runs as follows:

3. The above case is posted for
  enquiry today. The respondent giving
  lot of pin pricks to me and calling
  over cell phone and using ugly and
  filthy language and she is threatening
  me and she will finish me through
  coolies. The above things were
  recorded by me in audio C.D. The above
  audio C.D. is produced herewith toprove
  my case. Hence, this petition.

5. The learned senior counsel for the petitioner

pointing out the said paragraph submitted that it appears

from the said contents the conversation was recorded in

cell phone, later re-recorded in a audio CD for which the

learned senior counsel for the respondent submitted that it

is incorrect to say that it was recorded in cell phone and

re-recorded in audio CD, indeed, the same was recorded

straightaway in audio CD.

6. The object of the pleadings (which includes

affidavit) is to ascertain the real dispute between the

parties to narrow the area of conflict and to see where two

sides differ. Until the construction is understood or

ascertained the meaning of the averments, it is difficult

to arrive at a conclusion as to whether the document in

dispute is a primary evidence or secondary evidence at this

stage. The trial court allowed I.A. No. 70 of 2007 thereby

tentatively permitted the respondent to mark the audio CD

reserving the right of the petitioner to cross-examine the

respondent in respect of its contents. Applying the ratio

laid down by the Honourable Supreme Courty in (Bipin

Shantilal Panchal vs. State of Gujarat and another) (2001)

3 scc 1 in the case on hand, it is suffice to direct the

trial court, while taking evidence, to consider the

objections raised by the petitioner regarding the

admissibility of the audio CD and decide the same at the

last stage in the final judgment. If the court finds at

the final stage that the objection so raised is

sustainable, the trial court can keep such evidence
excluded from consideration, otherwise consider it.

7. With the above direction, the Civil Revision

Petition is dismissed. No costs.

To

The Subordinate Judge
Sub Court-Mettur.