1. This Civil Revision Petition is filed to set aside the fair and decretal order dated 20.11.2013 made in I.A.No.347 of 2013 in O.S.No.381 of 2011 on the file of the II Additional Subordinate Judge, Erode.

2. The petitioner is plaintiff and respondent is the defendant in O.S.No.381 of 2011 on the file of the II Additional Subordinate judge, Erode. The petitioner filed the said suit against the respondent for recovery of money. The respondent filed written statement on 10.02.2012 and is contesting the suit. The petitioner was examined as P.W.1 and was cross examined by the counsel for the respondent. At that stage, the respondent filed I.A.No.347 of 2012 under Section 39 of the Evidence Act and Section 151 of C.P.C for permission to mark the documents such as Memory Card which contains the conversation between the petitioner and respondent on 02.02.2012, 17.02.2012 and 04.07.2012 and the CD containing the contents of the memory card as evidence on the side of the respondent. According to the respondent, the conversation took place in the cell phones of the petitioner and respondent on various dates such as 02.02.2012, 17.02.2012 and 04.07.2012, wherein the petitioner has admitted that he had never before seen the respondent and that whatever amounts the respondent owed, he would talk with V.P.Rathinasamy and settle the differences amicably. The respondent also in his affidavit has provided the cell phone numbers of petitioner and his number, through which the conversations took place. He also states that the above conversations were naturally recorded in the memory card in his cell phone, which he has recorded in the CD and would produce during his examination as D.W.1.

3. The learned counsel for the petitioner filed counter affidavit and opposed the same and contended that he never had any conversation with the respondent on the dates mentioned by the respondent in his affidavit. The cell phone number mentioned by the respondent does not belong to the petitioner. The respondent did not mention the above conversation in the written statement filed by him or did not even whisper about the same during the cross examination of the petitioner as P.W.1. The conversation would have been recorded through the mimicry experts and prayed for dismissal of the application.

4. The learned Judge played the CD in the open Court in the presence of the counsel for both the parties and considering the materials on record, allowed the application on the ground that the said documents are admissible as per Section 65A of the Indian Evidence Act (herein after referred to as the Act).

5. Against the said order dated 20.11.2013 made in I.A.No.347 of 2013 in O.S.No.381 of 2011, the present Civil Revision Petition is filed by the petitioner.

6. The learned counsel for the petitioner contended that unless the conditions contemplated in Section 65B of the Act is complied with, the electronic record is inadmissible as the same is secondary evidence. The respondent did not comply with the condition contemplated under Section 65B of the Act. The learned counsel for the petitioner, in support of his contentions, relied on the judgments report in:

(i)2009 (2) CTC 419 (A.R.Periyasamy Vs. G.Karunakaran):

“Evidence Act, 1872 (1 of 1872), Section 7 - Whether Tape recorded conversation admissible as evidence? - Applicant directed to file necessary application for comparison of recorded voice by expert - Trial Court directed to ensure accuracy of record through direct or circumstantial evidence to rule out possibility of tampering of record - Trial Court's observation “presently an individual can speak with the same voice that of another and in this regard many are talented and available, etc.””

“13. On a careful consideration of respective contentions, this Court is of the considered view that the tape itself is a primary and direct evidence as to what has been said and picked up by the recorder and can only be an corroborative evidence and in that view of the mat