• Audio Recording as Evidence for Fraud Case

While fighting a Fraud case in Tribunal against my stock broker, I produced the audio recording with voice transcript to corroborate the fact.. However, the Tribunal rejected my voice record saying that I did not seek the permission of the stock broker while recording their admittance. Then they said that the recording through the phone call will have more evidentiary value as compared to audio recording in mobile device. Per my understanding, because I was one of the participants, I do not need to seek permission for recording their admittance.The tribunal could have asked the opposite party to accept or contest the audio recording and should have asked me to send the recording for forensic test if the tampering was suspected. I could have applied for a forensic lab test and a certificate under Section 65B. But I wonder why they trashed the whole piece. How can I ensure the audio recording in mobile device should meet all the standards specified by any court in India so that it is not challenged on some or other technical ground when the case comes up in the court.
Asked 4 years ago in Civil Law

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16 Answers

The permission to record is required in financial transactions only but the said piece of evidence cannot be discarded you can approach the appellate court and send the said recording to forensic expert. 65 B certificate can also be from your side by establishing about the condition of your recording device and its maintenance.

Prashant Nayak
Advocate, Mumbai
27261 Answers
88 Consultations

4.4 on 5.0

You do not need the consent of stock broker to record your conversation with him

2) you can produce transcripts of audio recordings

3) you should have enclosed certificate under section 65 B of evidence act

4) it is necessary to peruse orders passed by Tribunal to advice further

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

Sir based on order of rejecting your audio recording file a writ petition before the high court and seek to quash order and further direction for the tribunal to.accept the audio recording after due certification.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. No audio or video tape can be admitted as evidence if not admitted by the other party unless the same is proved by FSL or though a certificate u/s 65B.

2. So apply to the court to send the electronic evidence to FSL for its certification and once it is done the court is free to admit as secondary evidence of the conversations actually done.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Firslty, as per the information mentioned in the present query, makes it clear that your right has not been entertained by the tribunal.

Secondly, now after a recent judgment of Hon’ble Supreme Court, it has been allowed to track or record the evidence to prove your credibility before the court of law.

Thirdly, yes when you come befor he court in appeal then please make sure that all prayers should be there including the rest of the credibility of the recording from the FSL.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

Audio Recordings are admissible as document in Indian Courts, if they fulfill certain conditions as laid down by Apex Court in Ram Singh V Col. Ram Singh AIR 1986 SC 3

a) the voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. Where the maker has denied the voice it will require very strict proof to determine whether or not it was really the voice of the speaker.

b) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.

c) Every possibility of tempering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.

d) The statement must be relevant according to the rules of Evidence Act.

e) The recorded cassette must be carefully sealed and kept in safe or official custody.

f) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbance.

However, with the advancement of technology now the recordings can be on electronic media, in which case Affidavit u/s 65B be required and few other things need to be taken care in case it is recorded during phone conversations, which can be discussed, if the question has more clarity

Mohammed Mujeeb
Advocate, Hyderabad
19031 Answers
32 Consultations

4.5 on 5.0

Hello,

Oral admissions as to the contents of electronic records are not relevant unless the genuineness of the electronic record produced is in question. Therefore, the first prerequisite for admission of any electronic record is its genuineness.

Its genuineness is in itself based on various factors –

Whether the evidence is relevant to the facts of the case or not.

How it is stored.

How long had it been since the record is kept in such electronic form and the other miscellaneous factors with respect to the genuineness of the electronic record.

You may once refer to the following article to know the insight out about the admissibility of audio recording as evidence:

https://blog.ipleaders.in/voice-recording-evidence/

Regards

You may get in touch if some further clarification is required.

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

In Arbitration proceeding the mode of proof is not so strict and it is a summary trial. So a certificate under section 65B is enough.

Even you can rely in statement of corroborating witnesses to prove your case.

In summary trial the Tribunal rely on rule of preponderance of portability.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Section 19-

"Determination of rules of procedure.—

The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872 (1 of 1872).

3) The power of the arbitral tribunal under subsection (3) includes the power to determine the admissibility, relevance, materiality and weight of any evidence."

4) you have to wait till award is passed and then take out proceedings for setting aside award

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

Sir as per section 19.of the arbitration act they are not bound by Indian evidence act and decide admissibility of evidence so in this scenario only option left is to wait for award and challange same if against us or file a writ before only for direction for tribunal to examine the evidence.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. You should have annexed the certificate under Section 65B. This is what you could have done but you omitted to do.

2. The Indian Evidence Act may not be strictly applicable to the proceedings before an arbitrator but the procedure devised by the arbitrator cannot override the basic rights of the parties which crystallize out of the Evidence Act. The order of the tribunal can be challenged before the High Court. However, there is little scope of success if the certificate under Section 65B was not annexed with the recording.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

Hello,

Send the evidence by post to the arbitrator, with a cover letter at the venue of the arbitration.

You may later challenge the arbitration award on the ground of misconduct of the arbitrator.

Refer to the judgment available at the following link:

https://indiankanoon.org/doc/125644591/

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Appeal against the order of the Tribunal as the order is illegal because what Tribunal is saying that has not been mentioned in Sec.65 B.

Koshal Kumar Vatsa
Advocate, Gurgaon
2283 Answers
3 Consultations

5.0 on 5.0

reason of the tribunal is very foolish - who will give his permission to record his own admission?

it is like i have committed murder. You know about it. Then you will have to take my permission to record my admission on committing the offence of murder!! Obviously I will not give such a permission because that will expose me

though Indian Evidence Act may not be applicable to arbitration proceedings but principles analogous thereto are applicable

you have produced the 65B certificate. You are also willing to handover the mobile device for forensic testing to rule out any tampering. If that is so then the refusal by the tribunal is outright illegal

you can challenge this when you file an appeal against the arbitral award

Yusuf Rampurawala
Advocate, Mumbai
6881 Answers
79 Consultations

5.0 on 5.0

How can I ensure the audio recording in mobile device should meet all the standards specified by any court in India so that it is not challenged on some or other technical ground when the case comes up in the court.

There is a procedure to be followed for filing such evidences before court which has been given in section 65B of Indian evidence act.

Probably if you had adopted the steps as per the provisions of the referred law, your evidence might not have been rejected.

The court will not ask you to go to the forensic department or adhere the procedures of the evidence act, the court will restrict itself to the material placed before it, if you have not followed the said procedures, it is fatal to your case, you cannot blame court for your lapses.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

I am ready to surrender the mobile device in which such audio recording was taken, subject to any FSL as the court deems fit and face cross examination, but if the Tribunal is not ready to take it on record because they are not subject to Indian Evidence Act, then what can I do ?

If the matter has been disposed then if there is no mention about this evidence, yo may prefer an appeal against the decision on the same lines and can plead that you were always ready to prove the genuineness of the said audio version whereas you were not given any opportunity to prove your case.

Thus you can strongly present your arguments agaisnt the aggrieved decision of the tribunal.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

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