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Octavious Steel Co. Ltd. Vs. Endogram Tea Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 80 of 1977
Judge
Reported inAIR1980Cal83
ActsEvidence Act, 1872 - Sections 35, 74 and 114
AppellantOctavious Steel Co. Ltd.
RespondentEndogram Tea Co. Ltd.
Cases Referred(Madholal Sindhu v. Asian Assurance Co. Ltd.
Excerpt:
- .....documents are, therefore, relevant under section 35 of the evidence act. these documents being public records within the meaning of sections 35 and 74 of the evidence act, can be proved by mere production of the original documents in court. no formal proof is necessary. in support of his contention that these documents are public documents, mr. bhabra cited air 1918 cal 988 a special bench decision of this high court, holding that 'record' in section 74 clause 2 of the evidence act referred to collection of documents made by private persons and kept as a record in public offices to which the public have generally access. he also relied on : air1967cal191 , where the division bench held that the official correspondence would come under section 35 of the evidence act. the next case.....
Judgment:
ORDER

Pratibha Bonnerjea, J.

1. On 21-6-79, the defendant tried to prove certain documents contained in a file through its witness Mr. Balsubramanium. The witness could only prove the signatures, appearing in the documents and frankly admitted that he had nothing to do with this file. The evidence of this witness is that the Controller of Capital Issues has two branches. CCI (i) and CCI (ii). This CC (ii) deals with the valuation of assets and shares and this file belongs to CCI (ii). This file was caused to be produced under subpoena by the defendant from the custody of C.B.I. The first three sheets of the file have been marked Exts. 120-A, 120-B and 120-C subject to objection. But serious objections were taken by the plaintiff when Mr. Bhabra, the counsel for the defendant, stated thathe would like to tender 13 documents in this manner. The counsel for the plaintiff objected on the ground that the contents of Exts. 120-A, 120-B and 120-C could not be proved by the witness. Only the signatures have been proved and without the contents, the signatures would be irrelevant and should not be admitted in evidence. Mr. Bhabra thereupon submitted that the defendant company being a Sterling Company, they had to obtain the sanction of the Reserve Bank of India under Section 31 of the Foreign Exchange Regulation Act, for the sale of the tea estate at agreed price. Before giving sanction, the Reserve Bank in its turn, referred the matter to the Ministry of Finance seeking their advice in the matter under Section 75 of the FER Act. These facts are not disputed (See M. Goenka's Evidence Q 2883). The value of the tea estate is an issue in this suit. The file contains the inter-departmental communications of CCI (ii) in connection with the reference made by the Reserve Bank. These documents are, therefore, relevant Under Section 35 of the Evidence Act. These documents being public records within the meaning of Sections 35 and 74 of the Evidence Act, can be proved by mere production of the original documents in Court. No formal proof is necessary. In support of his contention that these documents are public documents, Mr. Bhabra cited AIR 1918 Cal 988 a Special Bench decision of this High Court, holding that 'record' in Section 74 Clause 2 of the Evidence Act referred to collection of documents made by private persons and kept as a record in public offices to which the public have generally access. He also relied on : AIR1967Cal191 , where the Division Bench held that the official correspondence would come under Section 35 of the Evidence Act. The next case relied on by Mr. Bhabra is : (1953)IMLJ636 . It was held in that case that where according to the official practice, a book or a file of paper is maintained containing the copies of the communications sent, the book or the copies thus maintained itself is an official register withinthe meaning of Section 74 of the Evidence Act. In : [1972]2SCR646 , police report of election meetings were held to be relevant under Section 35 of the Evidence Act.

2. Mr. Mitter, however, submitted that Section 74 of the Evidence Act includes public document and records of private documents. The public documents, in true sense of the term are those documents to which the public has the right of inspection and can take certified copies thereof and they must be records of the final act of the officer concerned. Records relating to intermediatory stages would not be regarded as public documents.

3. On the basis of the decisions reported in : AIR1967Cal191 and : [1972]2SCR646 , I have no doubt in my mind that the documents sought to be tendered by Mr. Bhabra, if they can be proved in a legal manner, will be relevant under Section 35 of the Evidence Act and will come under Section 74 of the Act. In view of my above finding I am not dealing with the nicety of law regarding the different classes of public documents on their different characteristics as pointed out by Mr. Mitter as that would be beside the point.

4. Mr. Bhabra submitted that these documents being original public documents, their production in court is sufficient to prove the execution and contents of these documents. He relied on : [1975]2SCR259 and many other authorities from different High Courts.

5. Mr. Mitter, the counsel for the defendant (Sic) (Plaintiff?), on the other hand relied on : AIR1973Bom14 and a few other cases in support of his contention that the originals of public documents have to be proved formally like any other private document.

6. I find that : [1975]2SCR259 is a clear authority on this point and as such I am dealing with this case in detail. In : [1975]2SCR259 (Kanwarlal Gupta v. Amarnath Chawla) it was an appeal under the Representation of the People Act 1951. In that case, under an order of the trial court, the Inspector Genera] of Police submitted to the petitioner a chart giving all particulars of the election meetings held by the respondents. This chart was prepared from the reports of different public officers who covered these public meetings. It was held by the Supreme Court inthat case relying on : [1972]2SCR646 that the reports were made by the public servants in discharge of their official duties and they were relevant under the first part of Section 35 of the Evidence Act. It was held at page 325 :--

'This chart was obviously to be prepared from the official records in the possession of the Inspector General of Police which would be relevant under the first part of Section 35 of the Evidence Act'.

7. It was argued on behalf of the respondents in that case that if the chart would be treated as a piece of evidence then the respondents would be deprived of an opportunity to cross-examine the C.I.D. officers who made the reports or maintained the official records from which the chart was prepared. Their objections were negatived by the Supreme Court. This judgment was delivered by Bhagwati J. who held at page 326:--

'But that is no argument, because even if the reports made by C. I. D. officers or the official records maintained by the Inspector General of Police, had been produced by the Inspector General of Police, they would have been admissible in evidence under the first part of Section 35 of the Evidence Act, without any oral evidence as to their contents being required to be given by the C. I. D. officers who made the reports or maintained the official records. The petitioner is, therefore, not unjustified in asking us to treat the chart as a piece of evidence with probative value, though it must be said that it is a weak type of evidence and standing by itself, without anything more, it cannot be regarded sufficient to establish the holding of a public meeting by the first respondent. It can, however, certainly be relied upon as a corroborative piece of evidence which may be considered along with other evidence for the purpose of deciding whether a particular public meeting was held in connection with the election of the first respondent'.

8. This case lays down two principles: (1) Original public documents including their contents can be proved by mere production in court without formal proof of their contents, (2) The contents of these documents will be treated as evidence with probative value although the writer of the documents will not be called as a witness. So far as thefirst principle is concerned this decision in : [1975]2SCR259 overrules by implication the decisions reported in AIR 1947 Cal 318, AIR 1918 Cal 988, (SB) and : AIR1973Bom14 strongly relied on by Mr. Mitter in support of his contention that the original public documents must be formally proved like any other private document.

9. The counsel for the plaintiff submitted that the contents of the documents concerned were written hearsay evidence and could not be admitted in evidence at all. In support of his contention, he cited AIR 1954 Bom 305 (Madholal Sindhu v. Asian Assurance Co. Ltd.) where Bhagwati J. held that proof of signature did not prove the correctness of the contents of the document. He then relied on : AIR1968Bom112 where the Division Bench, on the basis of this observation of Bhagwati J. in AIR 1954 Bom 305 held at paragraph 42:--

'The reason on which the decision of Bhagawati J. is based is not far to seek. The evidence of the contents contained in the document is hearsay evidence unless the writer thereof is examined before the court.'

10. Mr. Mitter also cited AIR 1945 Cal 492 on this point where it was held :--

'A map by itself is nothing but statements made by the maker by means of lines and pictorial representations instead by word of month as to the state or configuration of a particular site and the objects standing thereon. To admit in evidence a map without calling the maker thereof is same as admitting in evidence statements made by a third party who is not called as a witness. In other words, it amounts to admitting hearsay'.

11. He also relied on Halsbury's Law of England Vol. 15, 3rd Edn., para 533 at page 294 :--

'Statements in documents may also be hearsay'.

The reasons for excluding hearsay evidence was also given in para 534 of the same volume:--

'The two principal objections, however, appear to be the lack of an oath administered to the originator of the statement and the absence of opportunity to cross-examine him.'

12. One thing must be pointed out here that in AIR 1954 Bom 305, : AIR1968Bom112 and AIR 1945 Cal 492, the courts were dealing with the private documents.

13. The rule of hearsay may not stand in the way of proving public documents because once it is proved that the documents are official records or official correspondence, the court has to raise the presumption under Section 114(e) of the Evidence Act. The question of 'hearsay' was not expressly taken in : [1975]2SCR259 but the counsel for the respondent did expressly object against the admissibility of the chart on the ground that he would not be able to cross-examine the writer or the person who used to maintain the public records out of which the chart was prepared. But the Supreme Court overruled the objection by saying 'That is no argument.' This establishes that in the opinion of the Supreme Court, the facts that the C. L D. officer was not on oath and was not cross-examined, were immaterial for the purpose of admitting in evidence the contents of that chart. It has been expressly held by the Supreme Court in this case that the contents of a public document will be admissible in evidence in spite of the fact that the writer is not called as a witness. In respectful agreement with this decision I hold that the documents sought to be tendered by Mr. Bhabra are admissible in evidence without calling the writers thereof but this evidence being very weak in its probative value can be treated as corroborative evidence only. If however the writer is called as a witness, there the contents can be treated as an independent piece of evidence. In view of my finding I overrule the objections taken on behalf of the plaintiff against the admissibility of the contents in Exts. 120A, 120B and 120C and direct that these documents should go in as Exhibits unconditionally.


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