M. MANOHAR v. T. K. MILLS — 1992 DIGILAW 75 (KAR)

K. J. SHETTY, J. ( 1 ) IN the course of examination-in-chief of P. W-1, Manohar, the petitioner has, while giving secondary evidence of the unproduced document, took out the sheets of paper containing notes of inspection of the documents said to be originals, referred to it in extenso, virtually reading it out in order to give the oral accounts of the contents of the unproduced documents which were seen and read by him. This has been objected to by Mr. S. G. Sundaraswamy, the senior counsel appearing for the respondent-Company on the ground that the witness does not really refresh his memory, but substitutes for his memory, the sheets of paper which contains notes/jottings. ( 2 ) MR. Udaya Holla, learned counsel appearing for the petitioner has submitted that the petitioner is referring to the notes of inspection of documents made at his dictation to one Mr. Shankar Gupta who assisted him, for refreshing his memory while giving his evidence as oral accounts of the contents of document (unproduced) by way of secondary evidence. He has further argued that notes of inspection of documents is made by P. W-1 could be referred to and read out by him as and when he has to give oral accounts to the contents of document as envisaged under Section 63 (5) read with Sections 159 and 160 of the Evidence Act. Mr. Holla relied on the provisions of Sections 159 and 160 of Evidence Act and contended that P. W-1 could depose to facts by looking into document (sheet of paper containing notes ). This is known as refreshing memory contemplated under Section 159 of the Evidence Act. Analysing the provision of Section 159 of the Act, Mr. Holla has submitted that the document is resorted to revive a faded memory and the witness swears from the actual recollection of the facts which the document evolves. In other words, the memory is restored by referring to the documents. Elaborating his arguments he relied on the Supreme Court decision reported in State of Andhra Pradesh v ganeswara Rao, AIR 1963 SC 1850 . In other words, the memory is restored by referring to the documents. Elaborating his arguments he relied on the Supreme Court decision reported in State of Andhra Pradesh v ganeswara Rao, AIR 1963 SC 1850 . The Supreme Court has observed as follows:"where a witness has to depose to a large number of transactions and those transactions are referred to or mentioned either in the account books or in other documents there is nothing in wrong in allowing the witness to refer to the account books and the documents while answering the questions put to him in his examination. He cannot be expected to remember every transaction in all its details and Section 160 specifically permits a witness to testify the facts mentioned in the documents referred to in Section 159 although he has no recollection of the facts themselves if he is sure that the facts were correctly recorded in the document. Therefore, where an approver was allowed to refresh his memory while giving evidence, by referring extensively to the account books and documents produced in the case, the procedure adopted was held to be neither in violation of law nor an abuse of the powers of Court under Section 159. "he has also relied on the decision reported in Emperor v Mahadeo Dewod, AIR 1946 Bom. 189. In the said decision the Bombay High Court has observed as follows:"but Section 159, Evidence Act, says that when a witness is under examination he may refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory and that he may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct. The section does not require that the writing which is used to refresh his memory should itself be admissible in evidence. "yet another decision has relied on is AIR 1969 Tripura page 27. The High Court of Tripura has observed:"but, in the present case, P. W-2 (Shri Dhiresh Chandra Ghosh) appears to have refreshed his memory by looking into a certified copy. He also spoke to the various details of dates, etc. , by looking into it. "yet another decision has relied on is AIR 1969 Tripura page 27. The High Court of Tripura has observed:"but, in the present case, P. W-2 (Shri Dhiresh Chandra Ghosh) appears to have refreshed his memory by looking into a certified copy. He also spoke to the various details of dates, etc. , by looking into it. Such a procedure is not hit by section 159 of the Indian Evidence Act. " ( 3 ) MR. S. G. Sundaraswamy, learned counsel appearing for the respondent-Company has submitted that the petitioners who could not and cannot mark the piece of paper containing the notes of unproduced documents as secondary evidence, now under the guise of refreshing memory he cannot reproduce the entire contents contained in the notes and get it marked, which is plainly impermissible. This Court by its order, dated 23-1-1992, in this case, has held that mere notes jotted down from the original is not a copy or a copy compared with the original for it never be an accurate true and full production of the original, as such, it cannot be tendered as secondary evidence. Secondary evidence usually takes the true copy, the piece of paper containing notes said to have been recorded while taking inspection of documents by the witness, is not true copy. Further, he argued that oral account of contents of documents can be given, but not the reproduction of notes of original as secondary evidence. Referring to Section 159 of the Evidence Act, Mr. Sundaraswamy submitted that under this section a witness under examination may refresh his memory of any writing made by the witness himself at the time of transaction concerning which he is questioned provided that the said transaction was at that fresh in his memory or any writing made by any other person and read by the witness within the aforesaid period, the condition is that when he received it he knew it to be correct. In this case, the notes made by him out of the original documents which recorded certain transaction much before the witness examined the entry in it and made certain notes. Making the notes few years back on examination of document, is not the transaction contemplated under Section 159 of the Act. In this case, the notes made by him out of the original documents which recorded certain transaction much before the witness examined the entry in it and made certain notes. Making the notes few years back on examination of document, is not the transaction contemplated under Section 159 of the Act. The documents referred to in the said provision must have been made substantially at the same time on the occurrence of the events to which the witness is required to depose. ( 4 ) ELABORATING his arguments, he relied on the decision reported in Pannalal Shaw v Nanigopal Biswa, AIR 1949 Cal. 103, which reads thus:"before a witness is allowed to refresh his memory from any writing made by him the requirements of Section 159, Evidence Act should be complied with. It must be shown that the writing was made by the deponent at the time when he examined the complainant or so soon after that the Court considers it likely that the transaction was at that time fresh in his memory. There is nothing to show what the slip of paper was and when it was made. This is one of the defects in the procedure followed by the learned Magistrate. " ( 5 ) HE has further argued that assuming without conceeding that witness could look into the documents for refreshing his memory as per the provisions of Section 159 of Evidence Act, he could do so before going to the witness box, but not in the witness box provided the document is the copy of the original. ( 6 ) LET me consider the conflicting contentions of the parties. ( 7 ) FACTS are simple and few. P. W-1 the petitioner is being examined in examination-in-chief. As per the orders of this Court took inspection of certain document provided by the opposite party. While so inspecting he made certain notes in the year 1982. Some of these original documents were not produced by the opponents into Court. As secondary evidence P. W-1 has attempted to produce and mark the slip of paper containing the notes of inspection of those documents which was disallowed by this Court on the ground that tie slip of paper containing notes is not the true copy of the original and it cannot be produced and marked as secondary evidence. As secondary evidence P. W-1 has attempted to produce and mark the slip of paper containing the notes of inspection of those documents which was disallowed by this Court on the ground that tie slip of paper containing notes is not the true copy of the original and it cannot be produced and marked as secondary evidence. Nevertheless this Court by its order, dated 23-1-1992 has made it clear that the witness could give oral account of the contents of unproduced document as secondary evidence provided he lays the foundation what was seen, read were the originals. ( 8 ) THE points for consideration are (1) Whether the witness can be allowed to look into the slip of paper (the notes of inspection of document) containing notes and give out the contents contained therein by way of refreshing memory as contemplated under Section 159 of the Evidence Act? (2) Whether the witness could read out, get the contents of slip of paper containing notes of what the witness seen, read and recorded of the original of documents be allowed as secondary evidence? ( 9 ) MR. Holla has strongly urged that the witness could in the witness box by wayof refreshing his memory as envisaged under Section 159 of the Evidence Act could look into the document and give evidence as to the contents of document, the slip of paper containing notes of inspection unproduced documents. This contention on the face of it is untenable, ( 10 ) THE secondary evidence by oral account of the contents of document can be given by a person who has himself seen the original or the copies made from the original or copies compared with the original are admissible in evidence. The notes of inspection of document on the piece of paper is not the true copy of the original and that is not admissible as secondary evidence cannot be either produced and marked or get the entire contents of the notes by reading out as refreshing memory and recording it as evidence, for, neither that piece of paper containing notes or the reproduction of it would be receivable as secondary evidence. Thus the oral contents of the documents can be given but not the reproduction of notes of the original as secondary evidence. Thus the oral contents of the documents can be given but not the reproduction of notes of the original as secondary evidence. Under Section 159 of the Act, the copy of the original can be used for refreshing a memory before the witness gives evidence when the non-production of the original is accounted to the satisfaction of the Court. Such secondary evidence must be authenticated by foundational evidence that the alleged copy is infact a true copy of the original. The notes jolted down at the time of inspection of documents is not the true copy of the originals which cannot be tendered as secondary evidence in any form either by marking or reproducing its contents by way of refreshing memory under Section 159 of the Act. ( 11 ) THE contention of Mr. Holla, that under Section 159 of the Act, the witnesses when questioned either in examination-in-chief or cross-examination he should be allowed to refresh his memory by referring to the writing made by him by looking at it containing an account of them. On proper analysis of Section 159, it envisages to allow a witness to look at the document for refreshing memory, two conditions have been laid down. Firstly, the writing must have been made by the witness himself contemporaneously with the transaction to which he testifies or if the writing is made by someone else, it must have been read by the witness within the aforesaid time and known by him to be correct. In this case, the witness has not written the original unproduced document or contemporaneously with that transaction. Mr. Holla, has argued that the word transactions occurring in the provisions is wide enough to include any notes of the portion of document made by the witness or writing made by the witness with reference to a document which has been seen and read by him. The word 'refreshing his memory by referring to any writing made by himself at the time of transaction concerning which he is questioned' in Section 159 of Evidence Act, obviously refers to the writing made by the deponent himself at the time the transaction had taken place. The copying down or jolting down certain notes pertaining to the original document of which the witness has been read is not the transaction contemplated under Section 159 of the act. The copying down or jolting down certain notes pertaining to the original document of which the witness has been read is not the transaction contemplated under Section 159 of the act. The word 'any writing in section 159 of the Act refers to any kind of writing made by the deponent, if the book of accounts, bills or notes of any transaction of which he is a party. ( 12 ) THE decision relied on by Mr. Holla in support of the contentions are all of no assistance to him. In the Supreme Court decision AIR 1963 SC 1850 the facts of the case are different and distinguishable of the facts in the instant case. In that case, the witness who was an Accountant has to depose to large number of transactions and those transactions arc referred to in the Account Books, and he was allowed to refer to the Account Books while answering the questions put to him in his cross-examination. The Account Books were all original documents written by the accountant produced in the Court and to give the particulars of large number of transactions, he was allowed to look into the Account Books. In the instant case, the originals or the certified copy or the true copy of the originals are not produced. Only the notes of inspection of unproduced original documents. As such, the question of permitting the witness to look into such document to refresh his memory under section 159 of the Act does not arise. ( 13 ) IN yet another decision relied on by Mr. Holla in support of his submissions reported in AIR 1946 Bombay 189 is not helpful to him for the obvious reason that that was a case in which the panchanama of identification was written by a Police officer. It was immediately read over to the panchas and admitted by him to be correct. When that original document of panchanama was produced in the Court, the panch was allowed to look into the document to refresh his memory. This case too is distinguishable on facts of the instant case. The other and last one decision relied on by Mr. Holla is the one reported in AIR 1969 Tripura 26. That was a case in which the witness was allowed to refresh his memory by looking into the certified copy and he speaks to the various details of dates etc. The other and last one decision relied on by Mr. Holla is the one reported in AIR 1969 Tripura 26. That was a case in which the witness was allowed to refresh his memory by looking into the certified copy and he speaks to the various details of dates etc. , and the Court has held that such a procedure is not hit by Section 159 of the Evidence Act. As already noticed, in the instant case, the witness is not seeking permission to look into the certified copy or true copy of the document compared with the original to refresh his memory. ( 14 ) YET another question raised by Mr. Holla, learned counsel still to be answered is that whether the witness is entitled to give oral account of the contents of unproduced document as secondary evidence. This Court has already by its order dated 23-1-1992 held that P. W-1 the petitioner cannot mark the piece of paper containing the notes of inspection, to prove the existence and contents of document by secondary evidence. No doubt that this Court has held that he could give the oral account of the contents of the document as secondary evidence provided what he had seen in the original document, established by authenticated foundational evidence. ( 15 ) MR. Sundaraswamy, appearing for the respondent, relying on the decision reported in AIR 1949 Cal. 103, has argued that when the notes contained in the piece of paper cannot be allowed to be looked into for refreshing his memory, in' the decision of Calcutta High Court referred above, it is observed "before a witness is allowed to refresh memory, it must be shown that the writing was made by the deponent at the time when he examined the complainant or so soonafter that the court considers it likely that the transaction was at that time fresh in his memory". There is nothing to show that the slip of paper or certificate was prepared then and thereafter the examination of the complainant. The learned Magistrate was drawing in his imagination when he said that "therefore, I think that the appointment of the doctor's evidence is vitiated by the vitiated suppositions, the paper was prepared contemporaneously with the examination". The contention of Sri Sundaraswamy, learned counsel for respondent is well founded. The learned Magistrate was drawing in his imagination when he said that "therefore, I think that the appointment of the doctor's evidence is vitiated by the vitiated suppositions, the paper was prepared contemporaneously with the examination". The contention of Sri Sundaraswamy, learned counsel for respondent is well founded. The witness P. W-1 has not laid the authenticated foundational evidence that the piece of paper containing notes is true copy of the original. As such, it cannot be looked into for refreshing memory under section 159 when he is questioned while he examined as witness. ( 16 ) WHEN the witness P. W-1 is not allowed to mark the said notes of inspectionas secondary evidence, he cannot get the contents of it recorded by the process of refreshing memory as contemplated under Section 159 of the Act. Even though, p. W-1 is allowed to give the oral account of the contents of the document as secondary evidence to prove the existence and contents of the original document which is not produced into Court, it should be done so by giving oral evidence. Such oral evidence as to the contents of the unproduced original document couldbe given by resorting to provisions of Section 159 of the Act, provided the document, the deponent seeks to look into is the certified or true copy of the original not otherwise. ( 17 ) I am of the view that P. W-1, petitioner cannot look into the piece of paper containing the notes of inspection of unproduced document, by way of refreshing memory to give oral account of the contents of the unproduced document as secondary evidence. The points raised in this case are answered accordingly. --- *** --- .