PW-3 Srinivasan in the following terms:
“The evidence of PW-3 Srinivasan itself does not
inspire confidence since though he was a member
of the investigation team, he does not remember
anything else about the transaction of the
Plaintiffs except the circumstances under which
he has signed the letter of confirmation- Exh
D2-2.”
21. The learned senior counsel further contends that the
said finding of the learned special court ignores the
provision of Sections 159 & 160 of the Indian Evidence
Act, 1872 (hereinafter “the Evidence Act”). It is
contended that the Evidence Act recognizes that human
memory is fallible and after some time, it may become
totally blank about a transaction of long ago. Sections
159 and 160 of the Evidence Act are quoted hereunder:
“159. Refreshing memory: A witness may, while
under examination, 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. The witness 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.”
“160. Testimony to facts stated in document
mentioned in Section 159- A witness may also
testify to facts mentioned in any such document as
is mentioned in section 159, although he has no
specific recollection of the facts themselves, if
he is sure that the facts were correctly recorded
in the document.”
22. It is further contended by Mr. Ram Jethmalani, the
learned senior counsel on behalf of the appellant, that
Mr. Srinivasan, PW-3, was called to depose in the year
2009 for a transaction that took place in November 1992.
Thus, it would be perfectly reasonable for him to claim
that he remembers practically nothing unless reminded by
the contemporaneous document of 1992 of which, he had once
before been reminded in 1996. The learned senior counsel
further contends that no suggestion was put to him at the
time of his cross examination regarding any bribery or
inducement on behalf of the CMF. No suggestion was also
put to him that the letter dated 11.03.1996 was not
written by him. It was further not suggested to him that
no such meeting happened on 07.11.1992.
23. The learned senior counsel for the appellant further
contends that the respondent CMF in their Written
Statement before the Special Court never denied the
happening of the meeting on 07.11.1992. Para 12 of the
Written Statement reads thus:-
“……this Defendant denies that S.R Ramaraj stated
to CBI on 07.11.1992 or at any time that
Defendant No.2 had a dummy transaction with the
Fund or that the details of the said alleged
transactions came to light only during the
proceedings in Misc. Petition No. 81 of 1995.”
24. The learned senior counsel further contends that
because even the respondent CMF never denied the happening
of the meeting on 07.11.1992, the learned Special Court
erred in coming to the said conclusion, which is contrary
to the pleading and evidence on record.
25. We agree with the contention advanced by the learned
senior counsel on behalf of the appellant, Mr. Ram
Jethmalani with regard to the meeting on the above date.
26. There needs to be specific denial by a witness as to
the suggestion regarding the happening of a meeting for
the Special Court to arrive at the conclusion that the
meeting did not take place. Order VIII Rule 5 of the Code
of Civil Procedure, 1908 deals with this aspect, which is
reproduced hereunder:
“Order VIII Rule 5 - Specific denial:
(1) Every allegation of fact in the plaint, if
not denied specifically or by necessary
implication, or stated to be not admitted in the
pleading of the defendant, shall be taken to be
admitted except as against a person under
disability………”
It is a settled position of law that if an allegation
made in the plaint is not specifically denied in the
written statement, it is treated as admitted, as was also
held by this Court in the case of Balraj Taneja v. Sunil
Madan
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.9540-9541 OF 2010
STANDARD CHARTERED BANK …
Vs.
ANDHRA BANK FINANCIAL SERVICES LTD & ORS. ……
Citation;(2016)1 SCC 207
V. GOPALA GOWDA, J.
