Bhogilal Chunilal Pandya v. the State of Bombay

Judgment

T lto1nas Dana The State of Punjab SubU~ Rao J. November 4. directly infringes the fundamental right under Art. 20 (2) of the Constitution. No attempt has been made by the learned Solicitor General to contend that the offence under ss. 23 and 23B of the Foreign Exchange Regulations Act for which the petitioner is convicted is an offence different from that for which he was prosecuted earlier under s. 167(8) of the Act. It is conceded that the decision in the writ petition covers the decision in the connected appeal also. In the result, tho writ petition and the appeal are allowed. ORDER In view of the opinion of the majority, the Petition and the Appeal are dismissed. BHOGILAL CHUNILAL PANDYA THE STATE OF BOMBAY (N. H. BHAGW ATI, K. SuBBA HAO and K. N. WANCHOO,.JJ.) Evidence-Notes of attendance prepared by Solicitor--Admissibility of for corroborating Solicitor-Statement, if communication to another necessary for admissibility-Indian Evidence Act, I872 (I of I87z), S. I57· The appellant, a cashier of a Company, was charged with committing criminal breach of trust.

When the defalcation was discovered certain conversations took place bet\'v·een the Chairman and Secretary of the Company and the appellant in the presence of a Solicitor. Soon afterwards, the Solicitor prepared notes of attendance of these conversations. At the trial these notes were produced to corroborate the testimony of the Solicitor. The appellant objected that these notes were not admissible under s. 157 of the Evidence Act. He contended that the word "statement" in s. 157 required the communication of the statement by the maker to another person and that it did not include any writing or memorandum made by a person for his own use when it was not communicated to another person. 3ll Held, that the notes of attendance were admissible under s. 157· The word "statement" .in s. 157 means only "something that is stated" and the element of communication is not Bhogilal necessary before "something that is stated" becomes a state- Chunilal Pandya ment under that section. The King v. Nga Myo, A.I.R. (1938)

Rang. 177, Bhogilal The State 01 Bhikachand v. The Royal Insurance Co. Ltd., A.LR. (1928) P.C. 54, Bombay referred to. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 31 of 1958. Appeal by special leave from the judgment and order dated August 8, 1957, of the Bombay High Court in Criminal Reference No. 129 of 1957, arising out of the order of Reference to the High Court dated December 1, 1956, of the Court of Session for Greater Bombay in Case No. 82 of 1956. Pur,~hottam Tricumdas, G. R. Ganatra and I. N. Shroff, for the appellant. O. K. Daphtary, Solicitor-General of India and R.H. Dhebar, for the respondent. 1958. November 4. The Judgment of the Court was delivered by W ANCHOO, J.-This appeal by special leave is limit- Wanchoo J. ed to the question of admissibility in evidence of a certain document in a criminal trial. The brief facts of the case necessary for elucidation of the question are these:

Bhogilal Chunilal Pandya appellant was tried for committing criminal breach of trust in respect of Rs. 4,14,750 and the trial was with the aid of a jury. He was the cashier in the employment of Messrs. Morarji Gokuldas Spinning and Weaving Co. Ltd., Bombay. As such he was entrusted with the funds of the company. The charge against him was that between July 1 and December 1, 1954, he embezzled the amount mentioned above. Among the witnesses for the prosecution were Gopikisan, Chairman, Modi, Secretary, and Santook, a solicitor of the company. When the defalcation was discovered, cert~in conversations took place between Gopikisan, Modi and Santook who was consulted in this connection, and the appellant, between January 21 and 27, Rhogilrtl Chunilal P:1ndya The State.of Boinbtiy H' anr.1100 } • 1955. Santook prepared what are ca.lied notes of attendance of these conversations soon afterwards.

In his evidence in court, Santook deposed to what has taken place between him and these persons on those dates. The notes of attendance marked Ex. V were also produced to corroborate the testimony of Santook. An objection was taken before the trial judge to the admissibility of these notes on two grounds, namely.- ( I) that they could not be admitted in evidence as copies had not been supplied to the accused under s. 173 of the Code of Criminal Procedure, and (2) that they could not be given in evidence under s. 1()7 of the Evidence Act (hereinafter called the Act) as corroboration of Santook's evidence. The trial judge negatived both these contentions and admitted the notes in evidence. He referred to them in his charge to the jury. Eventually, however, the jury returned a verdict of not guilty by a majority of 5 : 3. The trial judge thereupon made a reference to the High Court under s. 307 of the Code of Criminal Procedure.

The High Court went through the entire evidence, including Ex. V., found the case proved, and convicted the appellant. Learned connsel for the appellant has given up the attack on the admissibility of these notes on the basis of s. 173 of the Code of Criminal Procedure in view of the decision of this Court in Narayan Rao v. The State of Anrlhra Pradesh (1 ). He has, however, strenuously contended that the "notes cannot be admitted in evidence under s. 157 of the Act. Section 157 is in these terms- " In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may he proved." The contention is that the words ' statement made by ' in this section require that there must be a communication of the statement by the maker of it to another person and that a statement within the meaning of s.

157 does not include any writing or (r) [r958) S.C.R. 283. (I) S.C.R. SUPREME COURT REPOR.TS memorandum ma.de by a. person for his own use when it is not communicated to any other person. It is said that such a writing may be used to refresh the memory of a witness under s. 159; but it does not become admissible in evidence unless the other party crossexamines the witness on the document under s. 161. In this case there was no question of cross-examination upon the document as the prosecution itself produced the notes during the examination-in-chief of Sa.ntook in order to corroborate him. ln short, the contention of the learned counsel is that such a writing can only be used under s. 159 and cannot he ealled a statement within the meaning of s. 157, for the word 'statement' used in s. 157 implies that it must hM·e been communicated to another person. Now, the word 'statement' is not definetl in the Act.

We ha. ve, therefore, to go to the diet ionary meaning of the word in order to discover what it means. Assist.a.nee may also be taken from the use of the word ' statement' in other parts of the Act to discover in what sense it has been mied therein. The primary moaning of t.hc word ' statement' to be found in Shorter 0.c.f ord English Dictionary and Webster's New World Dictionary is 'something that is Rtated '. Another meaning that is given in the Shorter O.cf ord English Dictionary is ' written or oral communication'. There is uo doubt that a statement ma.y be made to some one in the sense of a. communication. But that is not its primary meaning. UnlesR, therefore, there is something in s. 157 or in the other provisions of the Act, which compels us to depart from the primary meaning of the word ' statemeu.t ', there is no reason to hold that communication to another person is of the essence and there can be no statement within the metrning of s. 157 without such communication.

The word 'statement' ha.s been used in a. numl1er of sec lions of the Act in its primary meaning of 'something that is stated' and that meaning should be given to it under s. 157 also unless there is Romethi1rg tha.t cuts down that meaning fo1· the purpose of that section. Words are generally used in 40 Bhog·ilal Chunilal l)andya The Stnle of Bondi '.'Y Bhogilal Chunilal Pandya T/Je Stale of Bombay fVanclwo ] . the same sense throughout in a statute unless there is something repugnant in the context. The first group of sections in the Act in which the word' sta.tement' occurs, are ss. 17 to 21, which deal with admissions. "Section 17 defines the word ' admission ', ss. 18 to 20 lay down what statements are admissions, and s. 21 deals with the proof of admissions against persons making them. The words used in ss. 18 to 21 in this connection are ' statements made by'.

It is not disputed that statements made by persons may be used as admissions against them even though they may not have been communicated to any other person. l!'or example, statements in the accountbooks of a perso~- showing that he was indebted to another person are admissions which can be used against him even though t.hese statements were never communicated to any other person. Illustration (b) of s. 21 also shows that the word 'statement ' used in these sections does not necessarily imply that they must have been communicated to any other person. In the Illustration in qtiestion entries made in the book kept by a ship's captain in the ordinary course of business are called statements, though these entries are not communicated to any other person.

An examination, therefore, of these sections show that in this part of the Act the word 'statement' has been used in its primary meaning, namely, 'something that is stated' and communication is not necessary in order that it may be a statement. The next section to which reference may be made is s. 32 oft.he Act. It deals with statements made by persons who are dead, or cannot be found or who become incapable of giving evidence or whose attendance cannot be procured without .an amount of delay or expense which appears to the court unreasonable. Subsr,ction (2) in particular shows that any entry or memorandum made in books kept in the ordinary course of business or in the discharge of professional duty is a statement, though there is no question of communicating it to another person. Similarly, sub-section (6) shows that statements relating to the existence of any relationship made in any will or deed relating to the (l)

S.C.R. affairs of the family, or in any family pedigree, or upon any tombstone, or family portrait are statements though there is no question of their communication to another person. Again, s. 39 shows that a statement may be contained in a document which forms part of a book. In this case also there is no question of any communication of that statement to another person in order to make it a statement. Then, there is s. 145, which lays down that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing for the purpose of contradicting him. Under this section a witness may be conti:adicted by statements in a diary kept by him, though there is no question of any communication of those statements to another person. Then comes s. 157, which we have already set out above. Here also the words used are 'statement made by'. We see no reason why the word 'statement' should not have been used in its primary meaning in this section also.

There is nothing in the section which in any way requires that an element of communication to another person should be imported into the meaning of the word 'statement' used therein. It was urged that if we do not imply communication to another person in the meaning of the word 'statement' in this section, it would result in a witness corroborating himself by producing some writing made by him and kept secret and that this would be very dangerous. Now, a distinction must be made between admissibility of such a writing and the value to be attached to it. Section 157 makes previous statements even of this type admissible ; but what value should be attached to a. corroboration of this nature is a different matter to be decided by the court in the circumstances of each case. The witness who is sought to be corroborated is produced in the witness-box and is liable to cross-examination. The cross-examiner may show that no reliance should be placed on such an earlier statement.

The danger, therefore, which the learned counsel for the appellant emphasised is really no danger at all for the witness is subject to cross-examination. The ma.in Bhogilal Chunilal Pandya The State of Bombay Wanchoo ]. r95• evidence is the statement of the witness in the u·itnessbox and a document of this nature is only used to w,,,,.,i,,i If k Cnunilai° Pa,,d;·a corro orate nu. the mam ev1 ence 1s sha en y cross.examination, corroboration by snch a document n,, St•" of would be of no use. There is, therefore, 110 reason to /Jombay give a different meaning to the word 'statement' in this st·ction because of this allrged danger, which rew."'"00 .f. ally does not exist .. LearnPd counsel for the appellant particularly referred to s. 159 of the Act to show that notes like 1'~x. V can only be used for refreshing memory and can be evidence under the conditions presP.ribed under s. 161. He does not suggest that what com<>s nnrler s.

159 is nect'ssarily excluded from the meaning of the word 'sl atement' und<>r s. l5i. }'or example, a man may write a letter to another refening to certain facts at 01· about the time when they took place and may use it to refrPsh his memon•. A letter is a communication to another person ; it ··would, even according to the learned counsel for the appellant, be a statement within the meaning of s. 15i and be admissible for purposes of corroboration. Tlwrefore, it cannot be said that because a docum!'nt pan be used to r!'frcsh memorv under s. 159 it C"a.nnot be a St\\tement within the meaning of s. l5i. Section 159 den.ls with a particular t10t of circmnstances and the word 'statement' does not appear therein at all. Section 159 is, in our opinion, of no help in deciding what the word .'statement' means in s. l5i. Hefrcshing memory under s.

159 iK confined to statements in writing ma.de under the condit.ions mentioned in that section, while corroboration under s. l5i may be by statements in writiug or even by 01·al statements. That is why there is difference in language of ss. 157 and 159. But that difference does not, in our opinion, lead to any conclusion which would cut down the meaning of the word 'statement' under s. 157 to those statements onhwhich are communicated to another person. Ou a. .;onsidera.tion, therefore, of the primary meaning of the word. 'sta.temeut' and the various i;ections of the Act, we come to the conclusion that a 'statement' under s. 157 means only 'something that is stated' and the elc1ilent of communication to another person is not necessary before 'something that is stated' becomes a statement under that section. In this view of the matter the notes of attendance would be statements within the meaning of s. 157 and would be admissihle to corroborate Santook's evidence under s. 157.

Let us now turn to the cases cited at the bar. In The King v. Nga .Myo (1), a :Full Bench of the Rangoon High Court was considering questious relating to the nature of corroboration and the circmnst a.nces in which it should be sought when a. person is accused of a crime and the evidence against him is partly or wholly that of an accomplice or accomplices. The point, therefore, whicµ is specifically ra.ised before us was not before the Rangoon High Court. In passing, the learned Judges reforrcd to s. 157 of the Act and st,a.ted that it was settled law that a person cannot corroborate himself. In making these observations, the learned J udgcs must be referring to the settled law in England before the amendment by the English Evidence Act, 1938. A clrnuge was, however, introduced in t.he English law by the Evidence Act, 1938, (l & 2 Geo. 6, c. 28).

That Act provides that in any civil proceediug where direct oral evidence of a fact would be admissible, any statement ma.de by a person in a doci1ment and tending to establi:>h that. fact shall, on production of the original document, be admissible as evide11ce of that fact, if t.hc maker of the statement had personal knowledge of tho matters dealt with bv the statement 11.nd if lw is called as a witness in the proceeding. Thus notes of an interview prepared by a solicitor similar to Ex. V are now admissible as statements in a. document under certain conditions in England. (See in Re. Powe (deceased) Powe v. Barclays Bank Ltd (2) ). l!'or this reason and also because the judgment docs not consider the Hpecific question raised before us it is of no help. The next case is Bhogilal Bhikaclwn<l v. The Royal Insurance Co. Ltd. (3). Heliancc is pla.ced on the observations of their Lordships of the Privy Council at p. 63 in these words- (1) A.I.R. 1938 Rang. "il· l~) [u>55] 3 ,\II E.R 448.

(J) A.I.I{, 1~2S l'. C. 5,1, !JJ. llhogifol Chunilul l'u11dy11 1"/ic st-te of Bombciy Wn11cl100 J. '958 "The second matter on which their Lordships Bhogilal feel it desirable to observe is the tendering and recep- Chunilal Pandya tion in evidence of the letter written by Bhattacharjee to his official chief on 30th June, 1923. This letter was The s1a1e of tendered and received under s. 157, Evidence Act. Bombay Their Lordships desire emphatically to say that the Wanchoo J. letter was not, under that section, properly receivable for any purpose." These observations do not in our opinion help the learned counsel for the appellant. His contention throughout has been that a statemer1t within the meaning of s. 157 has to be communicated to another person. These observations show that the Jetter which their Lordships were rejecting was certainly a statement which was communicated to another person.

Therefore, when their Lordships rejected the letter it could not be on the ground that the statement was not com- ·munica.ted to another person ; it must be due to the value of the evidence of Bhattacharjee, which was considered in the previous paragraph. It is clear, therefore, the word 'statement' used in s. 157 of the Act means 'something that is stated' and the clement of communication to another person is not included in it. As such the notes of attendance prepared by Santook were st.atements within the meaning of s. 157 and admissible in evidence. The result is that the appeal fails and is hereby ·dismissed. Appeal dismissed.