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thebmaamba (junior)     19 February 2011

Intro. document first time in cross


I am looking for a judgement/order passed recently by BHC.The article was on timesofindia.com on 31/1/2011.

"Shibu Thomas, TNN, Jan 31, 2011, 02.00am IST
MUMBAI: The Bombay high court has allowed a 69-year-old man caught in a divorce battle to use taped telephone conversations to confront his wife of 20 years.

Meher Mistry (49), a resident of Malabar Hill, had opposed her husband Navroze Mistry's application to produce a CD of the recorded conversations, where she apparently asks him to leave her father's house. Justice Roshan Dalvi allowed Mistry to use the conversation when cross-examining Meher.

"Truth has to emerge from the evidence on record. The skill of the cross-examiner brings forth the hitherto unknown truth on record. It would be a farce to notify the party who is being cross-examined of the questions that may be asked by the cross-examiner," said the judge, adding, "In the cross-examination of a party any document can be produced and the witness under cross examination can be confronted (with it)."

Meher, had moved the high court in 2008 seeking divorce from Mistry, her husband of 20 years, on grounds of cruelty.

Mistry, n turn levelled allegations against his wife, and sought to confront her with her personal diary and the telephone conversations during the cross-examination

Meher's lawyers Narayan Suvarna and Ansuya Dutt objected saying that Mistry had not notified them earlier or mentioned the CD in the list of documents that he was going to rely on. The lawyers argued that Mistry could have recorded it on a tape recorder, audio cassette, MP-3 player, Dictaphone, computer or even on his mobile phone, but the original recording was not produced. Advocate Taubon Irani, Mistry's counsel, said an application had already been made for verifying Meher's voice.

The court did not agree with Meher's lawyers that the CD's contents and transcriptt could not be used during the cross-examination. The HC referred to the Civil Procedure Code that allows a party to produce documents for the first time during cross examination.

The court further said that the stage of verifying the authenticity of the tapes would come later. Citing Supreme Court judgments, the HC said that the tapes would have to pass three tests—relevance, identification of the voice, and accuracy of the taped conversation. Since the content of the tapes reportedly comprise of Meher asking Mistry to leave her father's house, the court said that it was relevant to the divorce proceedings. The question of identification of the voice would arise if Meher denied that it is her voice. Mistry could then identity the voice himself or through witnesses or as a last resort seek the opinion of a forensic expert. To prove the accuracy of the conversations, Mistry would have to produce the original recordings, said the HC. "If the tests are not passed, the tape recorded conversation would be of no use ultimately,'' observed the judge. ".......

Will be grateful if someone can point me the above citation or any case in which a document (relevant-A/D card and notice) can be introduced for 1st time in cross examination?The docs. will be used to contradict u/s 145 of IEAct and hopefully marked by the court as evidence.Thanks


 3 Replies

thebmaamba (junior)     20 February 2011

Thanks ,soni. I guess above is not a judgement but an order, hence not reported.But the above order mentions SC judgements...would be glad if someone points to them.

Am a junior and think i will have to handle the case concerning recovery of money (rs.12k only).Client is old and has informed me to do the cross ( n args.-my firsts ) if my senior does not make it in court ( a diff. town)- he does not mind if we lose (he is sick of 4 hrs. travelling and the expenses). My senior , i think , made a mistake in not pleading about a notice our client had sent the defendant. As it is , our case is weak.Our client also , during his cross, admitted that no notice was sent.( when i asked him afters why did he say this-he reffered to :a) his mind is not well as his wife has expired. b)my opinion about the notice i.e. it should have been pleaded :(... he was confused....he thought it was safe to give such an answer as we had not pleaded the notice.

 I was thinking that maybe i should confront the defdt. with the A/D card (with his wife's sign). When the defdt. denies his wife's sign, ask the court to mark the a/d card and notice as evidence. And for that i need citations- the above mumbai case fit nicely in our matter.  If no citations, the opposing advocate (a veteran) will blast me, i think.

JaiHind2010 (Owner)     02 March 2011




Notice of Motion No.8 of 2010


Suit No.16 of 2008

Mrs.Havovi Kersi Sethna ... ... Plaintiff v/s.

Mr.Kersi Gustad Sethna ... ... Defendant

thebmaamba (junior)     07 March 2011

Thanks ShriGopal and Jaihind.

Jaihind-amazing. Were you knowing about the case before ...or how did you search it?

Hmmm..notice of motion???? Anyway...thanks once again( My boss wants to cross the defdt.)

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