Bhogilal Chunilal Pandya vs The State Of Bombay

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 31 of 1958

Decision Date: 04/11/1958

Coram: K.N. Wanchoo, Natwarlal H. Bhagwati

In the matter titled Bhogilal Chunilal Pandya versus the State of Bombay, the Supreme Court of India delivered its judgment on 4 November 1958. The opinion was authored by Justice K.N. Wanchoo, and the bench consisted of Justice K.N. Wanchoo, Justice Natwarlal H. Bhagwati and Justice Subbarao K. The case is reported in the 1959 volume of the All India Reporter at page 356 and also appears in the 1959 Supplement to the Supreme Court Reports at page 310, with a later citation in the 1966 Supreme Court reports. The central issue concerned the admissibility under section 157 of the Indian Evidence Act, 1872 of notes of attendance prepared by a solicitor to corroborate his testimony. The appellant, Bhogilal Chunilal Pandya, was the cashier of Messrs. Morarji Gokuldas Spinning and Weaving Company Limited in Bombay and faced a charge of criminal breach of trust relating to the sum of Rs 4,14,750. The trial, which was conducted before a jury, revealed that after the alleged diversion of funds, the company's chairman, Gopikisan, and secretary, Modi, engaged in conversations with the company’s solicitor, Santook, in the presence of the appellant during the period from 21 to 27 January 1955. Subsequent to those meetings, Santook drafted notes of attendance documenting the discussions. During the trial, Santook testified regarding the conversations, and the notes of attendance—referred to as Exhibit V—were introduced to support his testimony. The defence objected on two grounds: first, that the notes could not be admitted because copies had not been provided to the accused as required by section 173 of the Code of Criminal Procedure, and second, that the notes did not satisfy the criteria of a “statement” under section 157 of the Evidence Act because they were not communicated to another person. Counsel for the appellant raised these objections, while counsel for the respondent, representing the State, opposed them. The appellate jurisdiction for this criminal appeal was invoked under special leave, arising from a judgment and order dated 8 August 1957 of the Bombay High Court in Criminal Reference No. 129 of 1957, which itself stemmed from a reference ordered by the Court of Session for Greater Bombay on 1 December 1956 in Case No. 82 of 1956. The Court examined whether the notes of attendance qualified as a “statement” within the meaning of section 157, considering that the word “statement” is defined merely as “something that is stated” and does not necessitate prior communication to another person. The Court also reviewed relevant authorities, including King v. Nga Myo (AIR 1938 Ran 177) and Bhogilal Bhikachand v. The Royal Insurance Co. Ltd. (AIR 1928 PC 54). After analysis, the Court held that the notes of attendance were admissible under section 157, concluding that the element of communication is not essential for a document to be regarded as a statement within that provision.

The appellant, Bhogilal Chunilal Pandya, was charged with criminal breach of trust for allegedly embezzling Rs 4,14,750 from the funds of Messrs Morarji Gokuldas Spinning and Weaving Co. Ltd., Bombay, during the period from July 1 to December 1, 1954. The prosecution’s case was presented by three company officers: Gopikisan, who acted as chairman, Modi, the company secretary, and Santook, a solicitor employed by the company. After the loss was discovered, the three officers held a series of discussions with the appellant between January 21 and January 27, 1955, during which Santook was consulted. Shortly after those meetings, Santook prepared a written record of the conversations, referred to in the trial record as “notes of attendance” and filed as Exhibit V. In the trial, Santook testified about the content of those discussions and the notes of attendance were introduced to support his testimony. The defense objected to the admission of the notes on two grounds. First, it argued that the notes could not be used as evidence because, under section 173 of the Code of Criminal Procedure, copies had not been served on the accused. Second, it contended that the notes could not be admitted under section 157 of the Evidence Act as corroborative material for Santook’s testimony. The trial judge rejected both objections, admitted the notes, and referred to them in his charge to the jury. Despite this, the jury returned a not‑guilty verdict by a majority of five to three. Following the verdict, the trial judge filed a reference to the High Court under section 307 of the Code of Criminal Procedure. The High Court examined the entire evidence, including Exhibit V, concluded that the prosecution’s case was proved, and sentenced the appellant to conviction.

After the High Court’s decision, counsel for the appellant abandoned the argument based on section 173 of the Code of Criminal Procedure, relying on the Supreme Court’s earlier decision in Narayan Rao v. The State, of Andhra Pradesh. However, counsel continued to press a separate objection, asserting that the notes could not be admitted under section 157 of the Evidence Act. Section 157 provides that, to corroborate a witness’s testimony, any former statement made by that witness concerning the same fact, made at or about the time the fact occurred, or before any legally competent authority, may be proved. Counsel argued that the phrase “statement made by” requires that the maker of the statement must have communicated it to another person; consequently, a private memorandum prepared for one’s own use, which has not been communicated, does not fall within the meaning of a “statement” under the section. Counsel further noted that while such a memorandum may be used to refresh a witness’s memory under section 159, it does not become admissible as evidence unless the opposing party is permitted to cross‑examine the witness about the document under section 161. In the present case, no such cross‑examination of the notes occurred, raising the question of whether the documents could be treated as a permissible “statement” for the purpose of corroboration.

In this case the prosecution produced the notes that it itself had prepared while examining the witness Santook in the main examination, and it sought to use those notes to support the witness’s testimony. The learned counsel argued that such a document could be used only under section 159 of the Evidence Act and could not be treated as a “statement” within the meaning of section 157. The counsel’s reasoning was that the word “statement” in section 157 carries the implication that the words must have been communicated to another person. Because the Act does not provide a definition of “statement”, it was necessary to turn to ordinary dictionaries to discover the ordinary meaning of the term. Reference was made to the Shorter Oxford English Dictionary and Webster’s New World Dictionary, which define “statement” primarily as “something that is stated”. A secondary definition in the Shorter Oxford English Dictionary describes a statement as a “written or oral communication”. While it is undeniable that a statement may be communicated to someone, that is not its primary meaning. Consequently, unless there is something in section 157 or in another provision of the Act that forces a departure from the primary meaning, there is no justification for holding that communication to another person is an essential element of a “statement” under section 157. Accordingly, a document that has not been communicated cannot be classified as a statement within that section.

The Court observed that the word “statement” has been employed in several sections of the Evidence Act in its primary sense of “something that is stated”, and that same meaning should be applied to section 157 unless there is a specific provision that limits it. Generally, words are given a consistent meaning throughout a statute unless the context clearly indicates otherwise. The first group of sections where “statement” appears are sections 17 to 21, which deal with admissions. Section 17 defines “admission”, sections 18 to 20 explain which statements qualify as admissions, and section 21 governs the proof of admissions against the persons who made them. In those sections the phrase “statements made by” is used. It is not contested that statements made by a person can be admitted as evidence of an admission even if they were never communicated to anyone else. For instance, an entry in a person’s account book showing that he owed money to another is an admission that may be used against him, notwithstanding that the entry was never communicated to any other individual. Illustration (b) to section 21 similarly demonstrates that the term “statement” in those provisions does not necessarily require communication to another person. The Court therefore concluded that, in the present matter, the notes produced by the prosecution cannot be excluded merely because they were not communicated, as the term “statement” under section 157 should be understood in its ordinary, primary sense.

In this part of the judgment the Court observed that entries which a ship’s captain writes in the log book while carrying out his ordinary duties are considered “statements” even though those entries are never communicated to any other person. The Court therefore examined the relevant provisions and concluded that, for the sections under consideration, the term “statement” is employed in its ordinary sense, meaning simply “something that is stated,” and that the requirement of communication to another party is not a condition for a passage to qualify as a statement. The Court then turned to section 32 of the Act, which deals with statements made by persons who are dead, missing, incapable of giving evidence, or whose appearance would cause unreasonable delay or expense. Sub‑section (2) of that provision expressly states that any entry or memorandum made in books that are kept in the ordinary course of business, or in the performance of a professional duty, constitutes a statement, even though there is no necessity for that entry to be communicated to anyone else. Likewise, sub‑section (6) provides that statements concerning the existence of a relationship, when they appear in a will, a deed relating to family affairs, a family pedigree, a tombstone, or a family portrait, are also statements, despite the absence of any communication to another person. The Court further noted that section 39 makes clear that a statement may be part of a document that forms a component of a book, and again there is no requirement that such a statement be communicated for it to be regarded as a statement. Section 145 was then considered; it authorises a witness to be cross‑examined about previous statements made by him in writing or reduced to writing, for the purpose of contradicting him. Under this section a witness may be confronted with statements kept in his own diary, even though those diary entries were never communicated to anyone else. The Court then revisited section 157, which had already been discussed earlier, and observed that the language used there is the same phrase “statement made by.” The Court saw no reason to interpret the word “statement” in that section in any way other than its primary meaning. There is nothing in section 157 that introduces a requirement that a statement must have been communicated to another person. Counsel for the appellant argued that if communication were not implied, a witness could effectively corroborate himself by producing a secret writing, which the appellant described as a dangerous outcome. The Court distinguished between the admissibility of such a writing and the weight or value that should be assigned to it. While section 157 permits previous statements of this character to be admitted as evidence, the Court emphasized that the assessment of the evidential value of a self‑corroborating document is a separate question that must be resolved by the trial judge.

In the facts of each case, the witness whose testimony was to be supported was called to the stand and was therefore open to cross‑examination. The opposing lawyer could point out that the earlier statement should not be relied upon. Accordingly, the risk highlighted by counsel for the appellant—that the earlier statement might be dangerous—did not exist because the witness could be examined on the stand. The principal evidence consisted of the witness’s testimony given in court, and any document of the type discussed was only introduced to reinforce that testimony. If the witness’s testimony were weakened by cross‑examination, the corroborating document would become irrelevant. Hence the Court found no justification for giving the word “statement” a different meaning in section 157 on the basis of an alleged danger that, in reality, did not arise.

Counsel for the appellant also referred to section 159 of the Act, arguing that notes such as Exhibit V could be used merely to refresh a witness’s memory and could be admitted only under the conditions of section 161. He did not contend that the materials covered by section 159 were automatically excluded from the definition of “statement” in section 157. For instance, a person might write a letter to another person recounting certain facts that occurred and then use that letter to jog his memory. Even though a letter is a communication to another, the counsel agreed that it would qualify as a “statement” within the meaning of section 157 and thus be admissible as corroboration. Consequently, the Court could not accept the proposition that a document usable for refreshing memory under section 159 could not also be a “statement” under section 157. Section 159 deals with a specific set of circumstances and does not contain the word “statement” at all; therefore, it offered no guidance on the meaning of “statement” in section 157. While section 159 limits memory‑refreshing to written statements made under its particular conditions, section 157 permits corroboration by either written or oral statements. This distinction in wording does not narrow the meaning of “statement” in section 157 to only those communications made to another person. Considering the ordinary meaning of “statement” and the relevant provisions, the Court concluded that “statement” in section 157 simply means “something that is stated,” and that an element of communication to another person is not required. Accordingly, the attendance notes were regarded as statements within the meaning of section 157 and were admissible to corroborate the witness’s evidence.

The Court first examined the authorities cited by counsel. In The King v. Nga Myo (1), a full bench of the Rangoon High Court addressed issues concerning the nature of corroboration and the circumstances in which corroboration should be sought when an accused person faces evidence that is partly or wholly provided by an accomplice or accomplices. The specific question presented to this Court was not before the Rangoon High Court. In that decision, the judges, in passing, referred to section 157 of the Evidence Act and observed that it was settled law that a person could not corroborate himself. Those observations, the Court noted, were based on the settled English law that existed before the amendment introduced by the English Evidence Act 1938.

The English Evidence Act 1938 (1 & 2 Geo VI, c. 28) subsequently altered English law. The Act provides that in any civil proceeding where direct oral evidence of a fact would be admissible, any statement made by a person in a document that tends to establish that fact shall, upon production of the original document, be admissible as evidence of that fact, provided the maker of the statement had personal knowledge of the matters dealt with in the statement and is called as a witness in the proceeding. Consequently, notes of an interview prepared by a solicitor, similar to Exhibit V, have become admissible as documentary statements under certain conditions in England, as illustrated in Re Powe (deceased) and Powe v. Barclays Bank Ltd (2). Because the Rangoon judgment did not consider the precise issue raised before this Court, it offered no assistance.

The next authority relied upon was Bhogilal Bhikachand v. The Royal Insurance Co. Ltd. (3). The Court of Privy Council, at page 63, observed: “The second matter on which their Lordships feel it desirable to observe is the tendering and reception in evidence of the letter written by Bhattacharjee to his official chief on 30 June 1923. This letter was tendered and received under section 157, Evidence Act. Their Lordships desire emphatically to say that the letter was not, under that section, properly receivable for any purpose.” The present Court held that these observations did not aid the appellant’s counsel, who contended that a statement within the meaning of section 157 must be communicated to another person. The Privy Council’s remarks demonstrate that the rejected letter was indeed a statement communicated to another person; therefore, its rejection could not have been based on a lack of communication but must have related to the evidentiary value of Bhattacharjee’s statement.

In the discussion that preceded this passage, the Court examined the meaning of the term “statement” as used in section 157 of the Evidence Act. The Court concluded that the word “statement” should be understood simply as “something that is stated” and that the statutory provision does not require that such a statement be communicated to another person in order to fall within its scope. Accordingly, the Court held that the element of communication, which had been argued by counsel, was not a necessary component of a “statement” under the section. On the basis of this interpretation, the Court then considered the notes of attendance that had been prepared by the official known as Santook. Because those notes were expressions of fact and thus satisfied the definition of a “statement” under section 157, the Court found them to be admissible as evidence. Having determined that the evidence in question was properly admitted, the Court applied the relevant law to the facts of the case and found that the appellant had not established any ground for relief. Consequently, the Court concluded that the appeal could not succeed. The final order therefore dismissed the appeal in its entirety, and the judgment recorded that the appeal was dismissed.