The accused's right to fair trial guaranteed by Article 21 of the Constitution of India and the admissibility of recorded conversation as evidence.

This Criminal Revision Petition has been filed challenging the order dated 24.10.2013 passed in Cr.M.P.No.564 of 2013 in S.T.C. No.99 of 2012 by the Judicial Magistrate No.4, Tirunelveli. For the sake of convenience the parties 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 Rs.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 Rs.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 complainant as to why he had instituted this prosecution? The complainant seems to have agreed with the accused that the cheque was not given to him but was given to Sankar and as Sankar had to make some payment to the complainant, he had received the cheque from Sankar in lieu of the payment and filled his name. The accused seems to have recorded this conversation in his mobile phone. On 25.05.2012, the accused appeared before the Court and obtained the copy of the complaint. He pleaded not guilty to the charge and the case proceeded with examination of the complainant. After the chief examination of the complainant was over, the accused cross-examined the complainant. In the course of the cross-examination of the complainant, the accused played the conversation in the open Court which he had recorded in his mobile phone. The trial Court has also recorded about this in its proceedings. The complainant heard the conversation and stated in his evidence that he is not able to recognise the voice. In other words, the complainant did not say that the voice was not his but had stated that he was not able to recognise the voice. The accused suggested to the complainant that a blank but signed cheque for Rs.2,32,097/- was given by the accused to Sankar and that the complainant had lodged this vexatious prosecution without any basis, which suggestion of course, the complainant denied.

3. When the accused was questioned about the incriminating circumstances under Section 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.

5. Heard the learned counsel for the revision petitioner/accused and the learned counsel for the respondent/complainant.

6. The learned counsel for the accused submitted that the complainant has lodged a prosecution on the ground that the accused had borrowed Rs.2,32,097/-which on the face of it appears improbable because no one will borrow any amount in fractions. The complainant has also not filed any promissory note or any other documents in support of the debt. In this context, he had met the complainant one day prior to the first hearing of the complaint and has recorded the conversation between them in his mobile phone which he wants to use as a piece of evidence to disprove the case of the complainant.

7. Per contra, the learned counsel for the complainant would submit that the accused received the statutory notice bu