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suryagaurav (manager)     31 March 2011

can recorded conversation of advocate effect s.138 case

dear friends,

                    i am advocate of a financial concern in delhi. my client filed S.138 cases against some defaulters and now when defaulter called me on phone I suggested them to pay some money and I will let them settle the case or many other things i can't remember, but may be some out of the way things as to pressurise them. Now someone told me that they have recorded the conversation and use it in court saying that i have asked them to pay bribe/commission.

                       My first query is what is the authenticity of a recorded conversation if done by an unauthorised individual other than law enforcing it breach of my right to privacy if they produce it in court as recording is without my permission/knowledge.

                      second - how will they prove the timings /date etc. of conversation as may be the recording was of previous date .


          Now I am in a dilemma that being an advocate whether it comes under prvileged communication or may be used against me as I am related to that financial concern  as legal retainer.

          Please provide some judgement also if possible.

           thanx in advance to spare time for me.


 10 Replies

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     31 March 2011

This is a small problem for the matter ,may have been serious in other matters.

suryagaurav (manager)     31 March 2011

not able to understand , whether it effect me, its a mobile to mobile call

Narukulla srinivasa deepak (Student)     31 March 2011

The recorded evidence is a hear and say evidence and it is not at all admissible if he claims for that case will be dismissed and next u can file a defemation against them 


precaution get ur infulence and lodge a police report  that ur  sim card is lost and for applying for a new sim on tthe same number u need a police report ok na problem solved 

suryagaurav (manager)     31 March 2011

sir(your advocate),

          at present what is my position?

Kshiteej Anokar (Advocate)     31 March 2011

if u r there please reply or mail adv.ksh*

mohansreddy (Advocate)     31 March 2011

Nothing to worry proving is not an easy task. Moreover courts wont entertainthese type of evidence in 138 proceedings also plus point is that u being a lawyer ,courts are always lenientand supportive towards Advocates.

Vikas Nagwan (Legal Consultant)     01 April 2011

first of all since the recording was without your consent or knowledge, it will be inadmissible. If they called you with a malicious intention you do not need to worry, but if it was you who called them, then it makes big difference. just keep in mind that you are not on trial.. the case is between your client and the other party so stay calm...

p.sowrirajan (advocate)     01 April 2011

dear sir

the section 138 is very clear that the payment should be demanded in writting by giving them one month time[as per the latest amendment] This should be done through a lawyer or your self. THE NOTICE CAN BE SENT EITHER BY RDG POST OR EMAIL OR FAX [AS PER INFORMATION TECHNOLOGY BILL ].





Shantibhushan (Advocate)     01 April 2011

Comaplaints under 138 is concerned only with the tranasaction held in past pertaining to dishonoured cheques and Magaistrate has jurisdiction only to deciede the said issue/ transactions of past..... so what ever evidence is admissible/considereable by court should support the transaction under case u/s138 and the afterthough stories and irrelevant evidences are unreliable even if produced by accused.

However, even if court takes for considerearion such recordings, the law is very much strict on authenticity of such kind of recorded evidence and court would really step back to accept such evidence . 

For instance you can read this article

Mayur (Practising Advocate)     01 April 2011

According to me, phone recording is not relevant to S.138 case. However, for phone recording and its admisiibility as evidence, Refer Judgement of Malkani V/s. State of Maharashtra (1973) 1 SCC 471

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