The Hon'ble Supreme Court in K.K. Velusamy vs. N. Palanisamy, (2011) 11 S.C.C. 275, considered about the telephonic conversation recording and came to a conclusion that a disc containing recording of telephonic conversation could be a valid evidence according to Section 3 of the Evidence Act and Section 2 (t) of the IT Act.

The Apex Court has observed that electronically recorded conversation is admissible in evidence, if the conversation is relevant to the matter in issue and the voice is identified and the accuracy of the recorded conversation is proved by eliminating the possibility of erasure, addition or manipulation. The relevant para of the judgement is reproduced as under:

7. The amended definition of "evidence" in section 3 of the Evidence Act, 1872 read with the definition of "electronic record" in section 2(t) of the Information Technology Act 2000, includes a compact disc containing an electronic record of a conversation. Section 8 of Evidence Act provides that the conduct of any party, or of any agent to any party, to any suit, in reference to such suit, or in reference to any fact in issue therein or relevant thereto, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

In R.M Malkani v. State of Maharashtra, AIR 1973 SC 157, this court made it clear that electronically recorded conversation is admissible in evidence, if the conversation is relevant to the matter in issue and the voice is identified and the accuracy of the recorded conversation is proved by eliminating the possibility of erasure, addition or manipulation. This Court further held that a contemporaneous electronic recording of a relevant conversation is a relevant fact comparable to a photograph of a relevant incident and is admissible as evidence under Section 8 of the Act. There is therefore no doubt that such an electronic record can be received as evidence.

Admissibility of recorded conversation was also considered by the Hon'ble Punjab and Haryana High Court in Laddi v. State of Haryana, 2013 (CRR Nos. 398, 399 & 400 of 2013). The Court observed that:
After coming into force of the Information Technology Act, 2000, (w.e.f. 17.10.2000) the traditional concept of evidence stands totally reformed. Section 2(r) of this Act is relevant in this respect which defines information in "electronic form" as information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated microfiche or similar device.

Under section 2(t) of this Act "electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer generated microfiche. Section 92 of IT Act read with Schedule (2) amended the definition of 'evidence' as contained in section 3 of the Indian Evidence Act.

The amended definition runs as under:
Evidence: Evidence means and includes:

• All statements which the court permits or requires to be made before it by witness, in relation to matters of fact under inquiry; such statement is called oral evidence;
• All documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.
• From the aforesaid provisions it becomes amply clear that the law, as it exists today, takes care of information stored on magnetic or electronic devices and treats it as documentary evidence within the meaning of section 3 of the Indian Evidence Act.

In RM Malkani vs. State of Maharashtra, AIR 1973 SC 157 the Hon'ble Supreme Court has observed as under:

23. Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape-record. A contemporaneous tape- record of a relevant conversation is a relevant fact and is admissible under Section 8 of the Evidence Act. It is res gestae.

Furthermore, the Hon'ble Punjab and Haryana High Court in Laddi v. State of Haryana (supra) also discussed whether electronic evidence is primary or secondary. Reiterating N. Sri Rama Reddy vs. V.V. Giri, AIR 1971 SC 1162, the Hon'ble Supreme Court held that like any document the tape record itself was primary and direct evidence admissible of what has been said and picked up by the receiver.

This view was reiterated by the Hon'ble Supreme Court in R.K. Malkani vs. State of Maharashtra, AIR 1973 SC 157. In this case the Hon'ble Supreme Court ordained that when a court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine. Giving an example, the Court pointed out that when it was disputed or in issue whether a person's speech on a particular occasion contained a particular statement there could be no more direct or better evidence of it than its tape record, assuming its authenticity to be duly established. In view of the above, the settled legal proposition is that evidence of tape recorded conversation being primary and direct can be used to establish what was said by a person at a material time/occasion.

In the case of Ziyauddin Burhanuddin Bukhari vs. Brijmohan Ramdas Mehta, AIR 1975 SC 1788, the Hon'ble Supreme Court observed that transcript of a tape-recorded conversation can be used by a witness to refresh his memory under Section 159 of the Evidence Act and their contents can be brought on record by direct oral evidence in the manner prescribed by Section 160 of the Evidence Act.

Also Read:

• Modes Of Call Recordings Accepted By Court
• Recording Wife's Phone Secretly Violation Of Her Right To Privacy And Cannot Be Accepted As Evidence
• Tape Recorded Conversation - Admissibility, Nature and Value
• Phone Tapping Right To Privacy Under Article 21
• Admissibility of E-evidence; Are WhatsApp chats and E-mails admissible in Court?
• The Evolution of Admissibility of Tape Recorded Statements As Evidence