Sunday, 4 January 2015

If evidence of contents contained in document is hearsay evidence then that evidence cannot be admitted.


IN THE HIGH COURT OF BOMBAY
O.C.J. Disciplinary Petition No. 1 of 1961 (with Misc. Petitions Nos. 5 and 6 of 1961)
Decided On: 14.07.1966
Appellants: In the matter of Mr. D. and Mr. S., Advocates
Hon'ble Judges/Coram:
V.S. Desai and V.A. Naik, JJ.

Law of Evidence - Proof of contents of document - Tribunal held that proof of signature was not amount to proof of contents of document, which bears signature - Hence, this Petition - Whether, proof of signature was amount to proof of contents of document - Held, it was conceded that report was authentic public document of Genoese Government - However statements contained in report were not based on evidence of any of relatives of consul at Genoa - Information contained therein did not appear to have been received from any member of Mangini's family - There was exceptions under English Law of Evidence to reception of hearsay evidence was evidence relating to pedigree - Further point to be noted was that statements contained in report were treated as hearsay and since they did not fall within exceptions, they were excluded from evidence - Hence it was held that what had been formally proved was signature of Chief Estate Manager of Petitioner and not writing of body of document at exh. 28 and secondly, that even if entire document was held formally proved, that did not amount to proof of truth of contents of document - Thus only person competent to give evidence on truthfulness of contents of document was Chief Estate Manager of Petitioner - Petition disposed of.
"If evidence of contents contained in document is hearsay evidence then that evidence cannot be admitted."
Citation: 1967MhLJ65

1. [After stating facts and dealing with points not material to this report the judgment proceeds-] Mr. Palkhivala, on behalf of Mr. D, requested that the bunch of letters produced by Abdul Rehman in his re-examination may be marked as an exhibit. Abdul Rehman was further cross-examined by Mr. Palkhivala on a number of points, and yet exh. 28 was not shown to Abdul Rehman. Nor was any question asked to him in regard to the same. The responsibility of identifying the handwriting of Abreo has been taken by Mr. D upon himself. This is a very queer way of proving such an important document as exh. 28. On the question of proof of the signature of Abreo on exh. 28 also, Mr. D's case has gone on developing from stage to stage. In his examination-in-chief before the sub-committee, Mr. D stated:
On the same day, a copy of this letter was handed over to Mr. Abreo the Chief Estate Manager of the petitioner. I produce the receipt signed by Mr. Abreo. Receipt pat in and marked Ex. 28
In answer to questions in cross-examination, Mr. D stated:
I have already said that my shorthand writer gave a copy of the letter and took his (Abreo's) signature on the receipt. I am very glad that he did so. There is no entry in Outward Register of the copy having been received by Abreo, because there is no covering letter sent to Sir Mohammed Yusuf along with it. It is dear from these answers that all that Mr. D tried to prove was to identify the signature of Abreo. He did not want to go so far as to say that Abreo put his signature in his (Mr. D's) presence. In his examination-in-chief before the Bar Council Tribunal, Mr. D has improved upon his version and has tried to state that Abreo put his signature below exh. 28 in his presence on April 1, 1950. This is what Mr. D. says :
Ex. 28 is the receipt signed by Mr. Abreo in my presence on 1-4-1950 in my office after he was given the copy letter dated 1st April 1950 addressed by us to Mr. Shaligram. Ex. 27/1 is the original of the copy lector which I handed over to Mr. Abreo in respect of which he passed the receipt, Ex. 28.
2. Mr. Peerbhoy contended that the entire document (exh. 28) could not be admitted in evidence inasmuch as Mr. D had only proved the signature below the document. The Tribunal gave a ruling stating that in their opinion proof of the signature was not proof of the contents of the document, which bears the signature. They added that "it would be open to Mr. Peerbhoy to contend that despite the admission of the document on record, what was proved was that the document bore the signature of Abreo and not that their contents were true". In their report., the Tribunal have stated that proof of the signature does not amount to proof of the contents of exh. 28. Nor did it mean that even if Abreo had received that copy of the letter, be showed it to Abdul Rehman at any time. According to the Bar Council Tribunal, the evidentiary value of exh. 28, even if it is held proved, was almost nil. As pointed above, the mode of proving exh. 28 that was initially undertaken by Mr. D. was to identify the signature of Abreo as a person who was acquainted with Abreo's handwriting (vide, s. 47 of the Indian Evidence Act). The ruling given by the tribunal may hold good so far as the question of the proof of the contents of exh. 28 is concerned (we will discuss this question presently at some length), if the only mode of proof adopted by Mr. D. was to identify the signature of Abreo. It certainly does not apply to the second mode of proof which Mr. D. sought to adopt, for the first time, in his further examination-in-chief before the Bar Council Tribunal by saying that Abreo put his signature below exh. 28 in his presence, for this amounts to proof of the execution of the document. We are not, however, disposed to accept the improved version of Mr. D., when he tried to say, for the first time before the tribunal, that he had seen Abreo putting his signature below exh. 28. The mode of proof that Mr. D. adopted in the first instance fell within the purview of s. 47 of the Evidence Act, that is to say, it remounted to his opinion about the signature of Abreo on the basis of his acquaintance with the latter's handwriting.
3. The Bar Council Tribunal had probably in their mind the decision of Bhagwati J. (as ho then was) in Madholal Sindhu v. The Asian Assu Co Ltd A.I.R. 1554 Bom. 305 = 56 Bom. L. R. 147. The Advocate-General has strongly relied upon this judgment and contended that proof of the signature below the document does not amount to proof of the contents of the document. In that case an attempt was made to prove through the sub-accountant in the head office of the Bank several documents consisting of letters and documents executed by Jamnadas in favour of the bank and also the resolutions of the executive committee of the bank and the letters addressed by the bank to Nissim by proving the handwriting in which all the documents purported to have been written. Bhagwati J. characterised this attempt :
as an attempt to prove the handwriting of these various documents without calling in evidence the persons who had written the same or who were acquainted with the contents thereof so that they might not be subjected to cross-examination at the hands of the counsel for the Official Assignee. The witnesses who could have proved those documents and the contents thereof would have been Deshpande the managing director of the bank, Paranjape the Secretary of the bank, Jamnadas and Nissim.
4. Bhagwati J. referred to s. 67 of the Evidence Act and observed ( P- 148 ):
Section 67 of the Indian Evidence Act only permitted the proof of the signature or handwriting of the person signing or writing the document to be given and considered it to be sufficient in those cases where the issue between the parties was whether a document was signed or written wholly or in part by that person. It did not go so far as to say that even if it was proved that the signature or the handwriting of so much of the document as was alleged to be in the handwriting of the person, was in his handwriting, it would go to prove the contents of that document. No doubt the proof in so far as it was sought to be given in the evidence of Balkrishna Bhagwan Deshmukh of the signature or handwriting of the said various documents could have established that those documents were signed or written in the handwriting of Deshpande, Paranjape or Jamandas; but the matter could rest there and would carry the plaintiff no further.
From the facts as they appear from the judgment, it appears to us that the evidence given by Deshmukh in that case amounted to proving the handwriting of the persons concerned under s. 47 of the Evidence Act. We are inclined to the view that the proof offered by the evidence of Deshmukh was proof of the handwriting by a person acquainted with that handwriting and, therefore, amounted to opinion evidence under s. 47 of the Evidence Act. What is important to note is that Bhagwati J. has gone to the length of holding that proof of the signature or the handwriting under s. 67 of the Evidence Act, does not amount to proof of the contents of that document.
5. Mr. Gupte strongly urged that the view taken by Bhagwati J. is no longer good law, because of certain observations of the Supreme Court in Mobarik Ali v. State of Bombay MANU/SC/0043/1957 : (1957) 61 Bom. L. R. 58 : A.I.R. 1957 S. C. 857 :[1958] S.C.R. 328 Before discussing this argument, we will do well to note the wording of the two sections, which we are considering viz. ss. 47 and 67 of the Evidence Act. Section 47 of the Act runs thus; "When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact". Section 67 of the said Act runs thus :
If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
6. Section 67 does not prescribe any particular mode of proof. It lays down no new rule whatever as to the kind of proof that must be given. The section merely states with reference to the deeds what is the universal rule in all cases, viz. that a person who makes an allegation must prove it. The question that arose before the Supreme Court in Mobarik Ali's case was, whether the authorship of the document can be proved without adducing evidence in proof of the signature of the person concerned. In that ease, the prosecution relied upon a number of letters and these letters fell under two categories: (1) letters from the appellant ( accused ) either to Formatting error
the complainant and (2) letters to the appellant from Jasawalla or the complainant. Most of the letters from the appellant relied upon bore what purported to be his signatures. A few of them were admitted by the appellant. There were also a few letters without signatures. The complainant and Jasawalla spoke to the signatures on the other letters. The objection raised on behalf of the appellant was that neither of them had actually seen the appellant writing any of the letters nor were they shown to have such intimate acquaintance with his correspondence as to enable them to speak to the genuineness of these signatures. The trial Judge as well as the learned Judges of the High Court had found that there were sufficient number of admitted or proved letters which might well enable Jasawalla and the complainant to identify the signature of the appellant in the disputed letters. They also laid stress substantially on the contents of the various letters, in context of the other letters and telegrams to which they purported to be replies and which formed the chain of correspondence as indicating the genuineness of the disputed letters. The learned counsel objected to this approach on a question of proof. Their Lordships of the Supreme Court observed (p. 66) :
...We are, however, unable to see any objection. The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in ss. 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the Court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram, would be in a reasonably good position both with reference to his prior knowledge of the writing or the signature of the alleged send or, limited though it may be, as also has knowledge of the subject matter of the chain of correspondence, to speak to its authorship. In an appropriate case the Court may also be in a position to judge whether the document constitutes a genuine link in the chain of correspondence and thus to determine its authorship. We are unable, therefore, to say that the approach adopted by the Courts below in arriving at the conclusion that the letters are genuine is open to any serious legal objection. The question, if any, can only be as to the adequacy of the material on which the conclusion as to the genuineness of the letters is arrived at. That, however, is a matter which we cannot permit to be canvassed before us.
7. We are unable to understand how the above observations in any way amount to modification of the view taken by Bhagwati J. in Madholal's case nor do we appreciate how they help Mr. Gupte in the argument that he is advancing. Mr. Gupte in particular, relied upon the following sentences occurring in the above passage (p. 66 )
The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in BB. 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document....
8. The issue under consideration in that case was whether the internal evidence afforded by the contents of the document amounted to the proof of the authorship of the document and, therefore, their Lordships held that the evidence of the recipient of the document would be material to establish the authorship of the document. This was the real decision that was given by the Supreme Court in Mobarik Ali's case. Even the general observation viz. "It (proof) may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents or of the signature by one of the modes provided in ss. 45 and 47 of the Indian Evidence Act " are not of much help to Mr. Gupte. As pointed out above, at the initial stage Mr. D tried to resort to the mode of proving spoken of in s. 47 of the Evidence Act but at a later stage, shifted the ground and tried to give direct evidence of the execution of the document. It is true that proof of the signature or of the handwriting by one acquainted with the handwriting is a recognised mode of proof under s. 47 of the Evidence Act. Therefore, in so far as Mr. D. says that he recognised the signature of Abreo, the latter's signature can be taken to have been proved under s 47 of the Act. But the proof of the signature on the basis of opinion evidence, however, is not proof of the handwriting of the document. Mr. Gupte pointed out that the body of the document at exh. 28 is typewritten. Therefore, there is no question of proving the writing of that document. At the same time, it must not be forgotten that the figure and letters '1st' are written in hand and in pencil. Mr. D. has not attempted to identify the figure and letters. The whole document, therefore, cannot be said to have been even formally proved. Apart from this aspect of the matter, it is clear to us that the decision in Mobarik Ali's case does not affect the decision given by Bhagwati J. viz., that the proof of the document does not amount to proof of the contents thereof. The only question that arose in Mobarik Ali's case related to the formal proof of the document and, therefore, their Lordships of the Supreme Court held that the letters and telegrams could be said to have been formally proved by reason of internal evidence provided by the documents and the positive evidence given by the recipient of those documents. Once, the letters and telegrams were held proved, the further question about the proof of the contents did not arise in Mobarik Ali's case, because the author of the documents was the accused himself and the statements contained therein would amount to his admissions. In our view, therefore, the decision of Bhagwati J. is still good law.
9. The reason on which the decision of Bhagwati 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. We, therefore, hold that to attempt to prove the contents of the document by proving the signature or the handwriting of the author thereof is to set at naught the well recognised rule that hearsay evidence cannot be admitted. This question has been discussed by Halsbury at para. 533, at p. 294 (Halsbury's Laws of England, 3rd edn., Vol. 15) under the heading 'Hearsay'. Says Halsbury:
...Statements in documents may also be hearsay. So, if A had taken counsel's opinion before acting, the contents of the opinion would be admissible for the same purpose, but not to prove the truth of any statement of fact therein.
In para. 534 Halsbury has discussed the reasons for rejection of hearsay evidence and says (p. 295 ):
The reasons advanced for the rejection of hearsay are numerous, among them being the irresponsibility of the original declarant, the depreciation of truth in the process of repetition, the opportunities for fraud which its admission would offer, and the waste of time involved in listening to idle rumor. 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.
10. The Advocate-General drew our attention to a decision of House of Lords in Sturla v. Freccia (1880) 5 A.C. 623. In that case, the report of a Committee appointed by a public department in a foreign State was admitted in evidence as a public document. It was, however, held that it was not admissible as evidence of all the facts stated therein. In that case the facts were:
The document in question, a report of certain persons called the Giunta di Marina, at Genoa, is sought to be put in evidence for the purpose of proving that a person who was formerly consul for the Genoese Republic in London, and the succession to whose daughter, Mrs. Brown, is now in question, was a native of Quarto near Genoa, and at the time that report was made, aged about forty-five years. The document has been tendered for that purpose and for that purpose only.
11. It was conceded that the report was an authentic public document of the Genoese Government. The statements, however, contained in the report were not based on the evidence of any of the relatives of the consul at Genoa. The information contained therein did not appear to have been received from any member of Mangini's family. One of the well-recognised exceptions under the English Law of Evidence to the reception of hearsay evidence is the evidence relating to pedigree. The only question, which their Lordships of the House of Lords were considering, was whether the contents of the report fell within the purview of the above exception and their Lordships held that it did not, because the statements contained in the report were not baaed on the evidence given before the dispute started by any of the members of the deceased's family. We are not concerned with that part of the decision of the House of Lords in the present case. The point to be noted is that the statements contained in the report were treated as hearsay and since they did not fall within the well-recognised exceptions, they were excluded from evidence. To conclude this part of the discussion, we hold, in the first place, that what has been formally proved is the signature of Abreo and not the writing of the body of the document at exh. 28 and secondly, that even if the entire document is held formally proved, that does not amount to a proof of the truth of the contents of the document. The only person competent to give evidence on the truthfulness of the contents of the document was Abreo.

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