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2007 DIGILAW 902 (AP)

ALAPATI MOHAN RAO v. BOYAPATI VENKATESWARA RAO

2007-09-18

L.NARASIMHA REDDY

body2007
ORDER 1. The respondent filed O.S.No.41 of 2005 against the petitioner in the court of II Additional Junior Civil Judge, Guntur, for recovery of amount, on the strength of a promissory note. The trial of the suit commenced, and the recording of evidence on behalf of the respondent was closed. The petitioner deposed as DW- 1. On his behalf, DW-2 was also being examined. At that stage, he filed I.A.No.765 of 2005, under Rule 3 of Order 8 C.P.C., with a prayer to receive the audio-tape, as evidence, duly condoning the delay in presenting the same. The respondent opposed the application by filing a counter-affidavit. The trial Court dismissed the I.A., through order dated 26-09-2006. Hence, this C.R.P. 2. Heard Sri M.Pitchaiah, learned counsel for the petitioner and Sri V.Manohar Rao, learned counsel for the respondent. 3. The respondent filed the suit, on the strength of a promissory note, dated 13-12-2001. The petitioner denied the transaction of borrowing of money from the respondent. According to him, he borrowed a sum of Rs.1 lakh on 07-07-1999, from one Mr.Boyapati Srinivasarao, the brother of the respondent, and two promissory notes, for Rs.50,000/- each, were executed on the same day. It was pleaded that, when a sum of Rs.30,000/- fell due towards interest, on the said promissory notes, Srinivasarao insisted on execution of a promissory note in the name of his brother, the respondent herein; and that the same was complied with, believing that it is only a measure of security, without any consideration. In effect, the petitioner pleaded that the suit promissory note was not supported by any consideration. 4. The petitioner states that Boyapati Srinivasarao had a conversation with DW-2, during which, he admitted that the suit promissory note was nominal in nature, executed for the purpose of ensuring payment of interest, and that the said conversation was recorded by DW-2 in a cassette. He wanted the said cassette to be received in evidence. 5. It is no doubt true, that subject to certain conditions, the conversation in an audio-tape, or video cassette, can be received in evidence. However, before making such a request, necessary foundation has to be laid, and the relevance has to be established by the party concerned. 6. The content of a cassette can be used to prove the words uttered by an individual. However, before making such a request, necessary foundation has to be laid, and the relevance has to be established by the party concerned. 6. The content of a cassette can be used to prove the words uttered by an individual. It cannot be treated as direct evidence, and at the most, it can constitute a piece of corroborative evidence. The necessity to adduce such evidence arises, if only the person, whose conversation was recorded; is examined as a witness, and he denies the particular version suggested to him. Further, considerations would vary, depending on, whether the version for conversation is attributed to a party to the proceedings, or to a person, who is not a party to it. This would have a direct bearing on the question of relevance of evidence. If the alleged conversation is between two strangers, unconnected with the suit transaction, the scrutiny would be much more severe. The party intending to adduce such evidence has to put several links together, to constitute a strong chain. 7. Admittedly, the version contained in the tape in question is not that of the respondent. The person, whose conversation is said to have been recorded, is not examined as a witness. If the petitioner is serious about pursuing the present line of course, he has to first secure the presence of Sri Srinivasarao and suggest the alleged version to him. Thereafter, he has to make an effort, to link that evidence to the genuinity or otherwise of the transaction under the suit promissory note. When Srinivasarao has not been examined as a witness, the question of receiving the tape, containing his alleged version with DW-2; does not arise. Therefore, it cannot be said that the trial Court has committed any error in dismissing the application. Further, mere dismissal of the I.A., does not close the other course, for the petitioner. 8. For the foregoing reasons, the C.R.P. is dismissed, leaving it open to the petitioner to summon the person, whose conversation is said to have been recorded as a witness, and to take further steps, in accordance with law, depending upon the information, that may be elicited from him in the evidence. 9. There shall be no order as to costs.