IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 WP(C).No. 26449 of 2007(W) --------------------------------------- OS.84/2005 of II ADDL.SUB COURT,ERNAKULAM .................... PETITIONERS: ------------------- 1. CRIME FORTNIGHTLY, REPRESENTED BY T.P.NANDAKUMAR, OWNER, PRINTER AND PUBLISHER. 2. T.P.NANDAKUMAR, CHIEF EDITOR, CRIME FORTNIGHTLY, S/O K.DAMODARAN NAIR, VAZHAYIL BUILDING, SHENOY ROAD, KALOOR, KOCHI-17. BY ADV. SRI.K.RAMAKUMAR (SR.) RESPONDENT: ---------------------- PRIYANKA, FILM ACTRESS, D/O NARAYANAN NAIR, SAI KRIPA, EDAPPALLY, KOCHI-24. BY ADV. SRI.S.SREEKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.26449/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE APPLICATION FILED BY THE PETITIONERS BEFORE THE SUB COURT TO RECALL THE WITNESS. EXT.P1(a):- COPY OF THE PRINTED TAPE RECORDED CONVERSATION. EXT.P2:- COPY OF THE OBJECDTIONS WERE FILED BY THE RESPONDENT . EXT.P3:- COPY OF THE ORDER DT. 11.6.07 PASSED BY THE SUB JUDGE, ERNAKULAM IN IA. 668/07. /TRUE COPY/ P.A. TO JUDGE tss M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.26449 of 2007 ------------------------------- Dated this the 25th August, 2008. J U D G M E N T Petitioners are the plaintiffs in O.S.No.84 of 2005, on the file of Sub Court, Ernakulam. This petition is filed under Article 227 of the Constitution of India to quash Ext.P3 order passed in I.A.No.668 of 2007. I.A.No.668 of 2007 is an application filed by the petitioners to recall PW.3 for the purpose of proving the taperecorder conversation between the respondent and PW.3. An audio cassette along with transcription copy of the conversation were produced. Under Ext.P3 order, learned Sub Judge dismissed the application. 2. The argument of the learned counsel appearing for the petitioners is that as the cassette contains the conversation between PW.3 and respondent, with regard to the subject matter of the dispute to be resolved in the suit, learned Sub Judge should have allowed the application. W.P.(C) No.26449 of 2007 2 3. Relying on the decision of this Court in Pootholi Damodaran Nair v. Babu (2005 (2) KLT 707) and a decision of the learned Single Judge of the Andhra Pradesh High Court in Alapati Mohan Rao v. Boyapati V.Rao (2008 (3) KLT Short Note 22), it was argued that the conversation recorded in an audio cassette is admissible in evidence and learned Sub Judge should have allowed the application. 4. Learned counsel appearing for the respondent pointed out that the reason stated in the affidavit accompanying the application is that cassette was given to the petitioner only on 19.1.2007, after the evidence was closed and when PW.3 was examined, it was deposed by PW.3 that the cassette was given to the plaintiff earlier to the date of her examination and in such circumstances, it cannot be accepted. Learned counsel also pointed out that no evidence was adduced by PW.3 that she had recorded the conversation with respondent while she was travelling in the train and in such circumstances, learned Sub Judge rightly disallowed the application. W.P.(C) No.26449 of 2007 3 5. I.A.No.668 of 2007 was filed after the evidence was closed and suit was posted for arguments. Examination of PW.3 was completed on 6.1.2007. The evidence of PW.3 shows that she had handed over the recorded conversation to the plaintiff atleast earlier to 6.1.2007. But what is stated in the affidavit in support of Ext.P1 application is that on 19.1.2007, it was given to the plaintiff, and, therefore, it could not be produced earlier. If the audio cassette was handed over to the plaintiff as deposed by PW.3, it should have been produced before the examination of PW.3 and plaintiffs could have asked questions about the same, when she was examined. It was not done. In such circumstances, I do not find any reason to interfere with Ext.P3 order at this stage as there is no illegality or irregularity in the order. Petitioners are at liberty to challenge Ext.P3 order along with the final judgment, if it goes against them. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.