# T lto1nas Dana v. The State of Punjab

- **Citation:** [1959] Supp. 1 S.C.R. 310
- **Court:** Supreme Court of India
- **Decided:** 1957-08-08
- **Case number:** Criminal Appeal No. 31 of 1958
- **Bench:** N. H. Bhagw Ati, K. SuBBA HAO, K. N. Wanchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/t-lto1nas-dana-v-the-state-of-punjab-1536
- **Pages:** 9

## Headnote

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.
·-
(l) S.C.R. SUPREME COURT REPORTS
3ll
Held, that the notes of attendance were admissible under
1958
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 stateChunilal Pandya
ment under that section.
v.
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 limitWanchoo 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
v.
The State.of
Boinbtiy
H' anr.1100 } •
312
SUPREME COURT REPORTS [1959] Supp.
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

## Text

T lto1nas Dana
v.
The State of
Punjab
SubU~ Rao J.
-.-
November 4.
310
SUPREME COURT REPORTS [1959] Supp.
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
v.
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.
·-
(l) S.C.R. SUPREME COURT REPORTS
3ll
Held, that the notes of attendance were admissible under
1958
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 stateChunilal Pandya
ment under that section.
v.
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 limitWanchoo 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
v.
The State.of
Boinbtiy
H' anr.1100 } •
312
SUPREME COURT REPORTS [1959] Supp.
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
313
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
v.
The Stnle of
Bondi '.'Y
Bhogilal
Chunilal Pandya
v.
T/Je Stale of
Bombay
fVanclwo ] .
314
SUPREME COURT REPORTS [1959] Supp.
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.
SUPREME COURT REPORTS
315
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
v.
The State of
Bombay
Wanchoo ].
316
SUPREME COURT REPORTS [1959] Supp.
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
b
h ·
If
.
'd
. .
k
b
Cnunilai° Pa,,d;·a corro orate
nu.
the mam ev1 ence 1s sha en y
v.
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 onh- which 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
(1) S.C.R. SUPREME COURT REPORTS
317
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
v.
1"/ic st-te of
Bombciy
Wn11cl100 J.
318
SUPREME COURT REPORTS [1959) Supp.
'958
"The second matter on which their Lordships
Bhogilal
feel it desirable to observe is the tendering and recepChunilal Pandya tion in evidence of the letter written by Bhattacharjee
v.
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.