Madras High Court
Bharathiraja vs Edwin Calvin Paul on 25 November, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 25.11.2021
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.10675 of 2018
and
Crl.MP(MD)No.4811 of 2018
Bharathiraja : Petitioner/Petitioner/
Accused
Vs.
Edwin Calvin Paul
rep. by his Power Holder
Edwin Johnson : Respondent/Petitioner/
Petitioner
Prayer: Criminal Original Petition is filed under Section 482
of the Criminal Procedure Code, to call for the records from the
Fast Track Court No.1, Nagercoil (Magistrate Level) in Crl.M.P No.
3756 of 2017 made in C.C No.127 of 2013, dated 07.04.2018 and
set aside the same.
For Petitioner : Mr.V.H.S.Prathap
For Respondents : Mr.C.K.M.Appaji
ORDER
This petition has been filed by the petitioner seeking to set
aside the order passed by the Fast Track Court No.1, Nagercoil
(Magistrate Level) in Crl.M.P No.3756 of 2017 in C.C No.127 of
2013, dated 07.04.2018.
https://www.mhc.tn.gov.in/judis
2.The complaint has been filed by the Edwin Johnson Paul,
who is the respondent herein against the petitioner herein
Bharathiraja for punishing the accused person for having
committed the offence under Section 138 of the Negotiable
Instruments Act. During the pendency of the above said
proceedings, the accused person namely Bharathiraja filed a
petition before the trial court under section 311(A) of Cr.P.C to
direct the complainant to appear before the trial court and admit
his voice in the Audio CD, which was recorded during the course of
conversation between them, when the matter was pending before
the trial court. That petition came to be dismissed by the trial
court observing that such a plea is not maintainable and it is
violation of of protection, that has been granted under Article 20(3)
of the Constitution of India. So against that order, the accused
person has preferred this criminal original petition.
3.In the cause title of the trial court, there is a mistake with
regard to arraying of the parties. Edwin Calvin Paul has shown as
accused, but whereas he is the complainant before the trial court.
P.Bharathiraja is the accused, but he has shown as complainant in
the order. Since it is a mistake on the face of records, but however,
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the petition came to be filed by the accused namely Bharathiraja.
Against the dismissal order, the accused namely Bharathiraja has
preferred this criminal original petition.
4.Heard both sides.
5.It is a matter of offence punishable under Section 138 of
the Negotiable Instruments Act, which was instituted in 2013. Now
the trial process is almost over. From the records, it is seen that
when the matter was taken up for defence side evidence, a petition
under section 91 Cr.P.C came to be filed. That petition was allowed
and the Audio CD, which contains the conversation between the
parties were also produced before the court and that CD was also
sent to the Forensic Science Department for expert examination.
But could not succeed. Because the Forensic Science Laboratory
has returned the request stating that they are not entitled to any
such request, which involves civil dispute. So later this petition
came to be filed by the accused for a direction to the complainant
to appear before the trial court and admit the voice that is available
in the Audio CD and further, it has been requested that Audio CD
must be played in the open court. This is the background of the
issue.
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6.It appears that the conversation alleged to have been
recorded during pendency of the proceedings. Even though the
trial court was of the view that such a course is not available, which
will amount to testimonial compulsion under Article 20(3) of the
Constitution of India, but however, the learned counsel appearing
for the petitioner would submit that giving voice sample will not
amount to testimonial compulsion, as has been held in various
judgments of the High Courts. It is a settled law that directing the
party to give sample voice will not amount to testimonial
compulsion.
7.The learned counsel appearing for the petitioner
straightway relied upon the judgement of this court in the case of
P.Kishore Vs. State rep. By Additional Superintendent of
Police, SPE/CBI/ACB/Chennai (Criminal Revision Case No.1752
of 2011 dated 16.11.2017), wherein this court after going through
the various judgments as well as the mechanism of the voice
comparison of voice conversation came to the conclusion that it will
not amount to testimonial compulsion. Here the voice, that has
been brought to be verified is that of the complainant. So the
reasons of the trial court may not be correct.
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8.Perusal of the records shows that the disputed conversation
alleged on the face of the record, which took place privately
between the parties during the pendency of the proceedings to
make out a settlement. When settlement talks are undertaken
during the course of trial process between the parties, it may not
be proper on the part of a particular party to record the
conversation and produce it before the trial court as additional
evidence, which will amount to illegal. Because the compromise
talks is a confidential communication between the parties. During
the process of compromise, the parties may put forth many things.
But that cannot be permitted to be taken advantage by the parties
during the trial process.
9.More-over, recording of conversation without permission of
the other party is also totally illegal. But whatever it may be, now
the CD has been produced before the trial court and that has been
sent to the Forensic Science Laboratory and that was returned.
Still if the petitioner feels that he is entitled to produce those
documents, then he can very well get permission of the court and
produce the document by including the transcription of the
conversation and it is for the court to admit or reject the evidence.
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So except that, the entire process that has been undertaken by the
accused before the trial court is illegal and cannot be permitted at
all.
10.In view of the above, this Criminal Original Petition stands
dismissed. However, there shall be a direction to the Judicial
Magistrate, (FTC), Nagercoil, to complete the trial process within a
period of three months from the date of receipt of a copy of this
order and after disposing the same on merits, the compliance
report must be sent to this Registry forthwith. Consequently,
connected Miscellaneous Petition is closed.
25.11.2021
Index:Yes/No
Internet:Yes/No
er
https://www.mhc.tn.gov.in/judis
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for
official purposes, but,
ensuring that the copy of
the order that is presented
is the correct copy, shall be
the responsibility of the
advocate/litigant concerned.
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G.ILANGOVAN, J
er
To,
The Fast Track Court No.1,
(Magistrate Level),
Nagercoil.
Crl.OP(MD)No.10675 of 2018
25.11.2021
https://www.mhc.tn.gov.in/judis
