M MANOHAR Vs. T K MILLS

JUDGEMENT

(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. The Supreme Court has observed as follows:

(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. 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.