Admissibility of notes of attendance made by solicitor at conversations as statements.

Wanchoo, J.-

This appeal by Special Leave is limited to the question of admissibility in evidence of a certain document in a criminal trial. The brief fact, 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 Company limited, 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 amounts mentioned above. Among the witnesses for the prosecution were Gopikisan, Chairman, Modi, Secretary, and Santook, a Solicitor of 1 he company. When the defalcation was discovered, certain conversations took place between Gopikisan Modi and Santook who was consulted in this connection, and the appellant, between January 21 and 27, 1955. Santook prepared what are called notes of attendance of these conversations soon afterwards. In his evidence in Court, Santook deposed to what had taken place between him and these persons on those dates. The notes of attendance marked Exhibit 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-

(1) that they could not be admitted in evidence as copies had not been supplied to the accused under section 173 of the Code of Criminal Procedure, and

(2) that they could not be given in evidence under section 157 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 513. The trial Judge thereupon made a reference to the High Court under section 307 of the Code of Criminal Procedure. The High Court went through the entire evidence, including Exhibit V, found the case proved, and convicted the appellant.

Learned counsel for the appellant has given up the attack on the admissibility of these notes on the basis of section 173 of the Code of Criminal Procedure in view of the decision of this Court in Narayan Rao v. State of Andhra Pradesh1. He has, however, strenuously contended that the notes cannot be admitted in evidence under section 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 be 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 section 157 does not include any writing or memorandum made 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 section 159 ; but it does not: become admissible in evidence unless the other party cross-examines the witness on the document under section 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 Santook in order to corroborate him. In short, the contention of the learned counsel is that such a writing can only be used under section 159 and cannot be called a statement within the meaning of section 157 , for the word ‘statement’ used in section 157 implies that it must have been communicated to another person.

Now, the word ‘statement’ is not defined in the Act. We have, therefore to go to the dictionary meaning of the word in order to discover what it means, Assistance may al