Dolon Law

Meeting Under Company Law (Bangladesh)

Meeting is a very important act for the company. In the meeting all the decisions of importance are taken. Participation of the members as well as the directors is necessary to make a meeting meaningful. Meeting is an important instrument for management which increases the efficiency of an institution or company.
Generally, meeting is an association of persons, who associates together to do a lawful act.

J.C. Denier says that Company meeting is a meeting which is held to protect joint interest of the concerned parties (Shareholders, Directors, creditors).

According to M.C. Shukla, company meeting is the gathering of members to decide on lawful acts of the company.
From the above discussion we can find some features of company meeting. Such as –
1) It is a gathering of members, directors and interested parties,
2) It is held to protect interest of the shareholders, creditors and directors,
3) It is arranged to take decision on company affairs.

These meetings are described below:

A. Meeting of shareholders:

1. Statutory meeting: According to Avtar Singh, “ The first meeting of the shareholders of a public company is known as statutory meeting” It has to be called within six months from the date on which the company is entitled to co commence the business, but it cannot be held within one month from the date on which the company is entitled to commence the business as the requirement of section 83(1). In Palmer’s Company law the importance of statutory meeting is explained.
Object: The obvious purpose of a statutory meeting with its preliminary report is to put the shareholders of the company in possession of all the important facts relating the company.
Statutory Report: A statutory report should be framed about the meeting. The statutory report shall contain –
a. Description about share,
b. Cash received from share,
c. Payments and receipts,
d. Description about directors,
e. Particulars of any contract,
f. About underwriting contract,
g. Arrears for any director,
h. The particulars of any commission or brokerage.

Certification: Statutory report shall be certified as correct by ‘not less than two directors.’
Sending of report: The board of directors shall deliver the copy of the statutory report to the registrar of the company to register it.

Default in Filing statutory report: if a petition is presented to the court in the manner provided by provided by part V for winding up of the company on the ground of default of filing a statutory report after holding the statutory meeting The Court may, instead of directing that the company be wound up, give directions for the presentation of the report or for holding a meeting or make such other order as may be just. There is a fine of 5000 Taka if there is any deviation made in this regard.

Annual General meeting: Every company is required to call at least one meeting of its shareholders each year. This meeting is called the Annual General Meeting (AGM).
According to section 81(1) Of The Company Act 1994 - Every company shall in each tear of the Gregorian calendar hold in addition to any other meetings a general meeting as such in the notice calling it and not more than fourteen months shall elapse between the date of one general meeting of a company and that of the next.
The calling of general meeting is a duty imposed on the directors by the Act. In the case of Madan Gopal Dev v. West Bengal (1969) it was held that though the company is not functioning, it is obligatory to hold AGM.
Proviso to Section 81(1) provides that a company may hold a general meeting within a period not more than eighteen months from the date of its incorporation.

Extra – Ordinary General meeting: The meeting which is held to discuss about and taking decisions about important matters are called Extra- ordinary General meeting. This meeting is held within two annual general meetings. This meeting can be called either by the share holders or the directors. This meeting can be called on the requisition of the holders of not less than one tenth of the issued share capital of the company. The requisition must state the objects of the meeting and must be signed by the requisitionists and deposited at the registered office of the company. if the directors do not take steps, then the shareholders themselves can call the meeting within three months of their requisition.

Directors’ meeting: The meetings which are arranged and held among the directors are called the Directors’ meeting. The different kinds of directors, meeting are given below:

1. Council meeting: directors can arrange this kind of meeting to do casual worksand solve various problems of the company. Articles of association of a company, incorporates about this type of meeting. Table A of the Company Act 1994 describes about this type of meeting. According to Section 96 The Directors should call this type of meeting in every three months and they must call at least three meetings a year. The issues of this meeting can be:

• Share allotment,
• Appointment of employees,
• Promotion,
• Transfer,
• Share transfer,
• Issue of debentures,
• Contract in favour of a company, etc.

2. Committee Meeting: Sometimes the directors form committee and gives report about some incidents by taking inquiry into the matter. The committee holds the meeting to discuss about the matter, to make decisions and report about the matter.

Special Meeting: Special meetings are those meetings which are held in special circumstances by special persons. Those are:

a. Class Meeting: There are different types of share in a company. Such as: Preference share, General share, etc. The shareholders are named in their own types of shares. When the different types of shareholders hold meeting among the same type of share holders are called class meeting. Only the majority shareholders of the concerned class can take decision on the meeting. Articles of association describes about the procedure of this type of meeting.

b. Creditors’ meeting: This meeting can be called by the directors as well as by the creditors. On the dissolution of the company on unification or restoration of a company this type of meeting is called. The main purpose of this meeting is to negotiate with the creditors for the purpose of safeguarding the company from damage.

Process of extraordinary general meeting:

Definition: All general meetings other than annual general meeting shall be called as extraordinary general meeting. Extraordinary general meeting is a meeting which is held for some special purposes within two annual general meetings.

Process: An extraordinary general meeting can be called either by directors or by the shareholders. The process of calling an EGM is given below:

1. Requisition by shareholders: The requisition of the EGM must be made by at least one tenth of the shareholders of paid up capital.
2. Arrangement by the directors: When the requisition is duly made the directors are bound to call the meeting forthwith.
3. Contents of the meeting: The requisition must state the objects of the meeting . It must be signed by the requisitionists and deposited at the registered office of the Company. When an extraordinary meeting is called for special and certain matters no other business can be added afterwards.
4. Self arrangement by the shareholders: When a requisition is at the registered office of the company the directors should, within twenty one days, move to call a meeting and the meeting should actually be held with in 45 days from the date of the requisition. If the directors fail to do so, the requisitionists may themselves proceed to call a meeting, and claim the necessary expenses from the company.
5. Process followed: Any meeting called under this section by the requisitionists shall be held in the same manner as nearly as possible the meeting called by the directors.


Remedy available in case of refusal to hold such meeting:

1. The shareholders can call meeting themselves.
2. The can get expenses which are reasonably incurred in the proceeding of the meeting.
3. The expenses can be cut from the remuneration of the directors.

The Karnataka High court held that the refusal on the part of the directors to call a meeting on requisition does not amount to any offence under section 169 of the Indian Companies Act 1956. Our provision of section 84 resembles with section 169 of the Indian Company Act. So in our country that rule is applicable.

Procedure and requisites of a valid meeting:

Meeting is a procedural work which is made mandatory by the Company Act. So, there are various requirements of a valid meeting. Those are described in a nut shell:

1. Proper authority:
The first requirement of a valid meeting is that it should be called by a proper authority. Obviously the proper authority is the board of directors, except when the meeting has, in the event of default of the directors, been called by the requisitionists, or by the court.
2. Notice:
The second requirement of a valid meeting is that a proper notice of the meeting should be given to the members. An annual general meeting may be called by notice fourteen days in writing, and a meeting other than an annual general meeting or a meeting for the passing of special; resolution may be called by twenty – one days notice in writing. It was held in The case of Azad publications v. Md. Quamrul Anam Khan that notice of an AGM must be sent by registered post. In an Indian case N.V.R. Nagappa Chettier v. Madras race club is an illustration in point –
“Notices were posted on October 16, for a meeting to be held on November 7. The notice was held to be short by one day as in computing the interval of twenty one days, date of posting and date of meeting should be excluded.”

Under section 95 of the Company Act it is emanated that – Notice of every meeting of the board of directors of a company shall be given in writing to every director for the time being in Bangladesh.

3. Chairman:
For the proper conduct of a meeting a Chairman is must. His appointment is usually regulated by Articles of Association. But if there is nothing in the Articles of Association, the members personally present at the meeting shall elect one of the members as the Chairman. In the case of Ram Narain v. Ram kishen (1911) 10 IC 515, it was held that a Chairman who presides over a meeting of a company is neither wholly a ministerial officer nor wholly a judicial officer; his duties are of a mixed nature, and he is not liable to be mulcted in damages, if acting bona fide according to the best of his judgment and without malice.

4. Voting:

The business of a meeting is done in the form of a resolution passed at the meeting. Shareholders have the right to discuss every proposed resolution and to move amendments. According to section 85(a)(i) in annual general meeting all the members are entitled to vote.
Regulation 57 of the Schedule 1 enumerates that the votes should be given by show hands unless a pole is demanded before or at the declaration of the result of show hands according to the provisions of section 85. It is clear that any resolution including a resolution for election of the directors, has in the first instance, got to be put to the vote of the meeting, which must decide on show hands.
According to section 85(2)(d) – in case the company originally having share capital, every member will have one vote in respect of each share or each hundred taka of stock held by him and in any other case, every member shall have one vote.
So we can say that whatever might be the amount of shares or amount of money, every member shall have one vote only. In section 85(2)(c) it is said that, on a poll votes may be given either personally or by proxy. Voting can be taken by polls and on a poll a person can vote on behalf of other by proxy. The instrument appointing a proxy shall be in writing under the hand or the appointer or on his authority duly authorized in writing, or if the appointer is a company or corporation either under seal or under the hands of officer or an attorney duly authorized.

5. Quorum:

Another requirement of a valid meeting is Quorum. Quorum means the minimum number of members that must be present at the meeting.

Quorum for public limited company: For public limited company or for any company other than private limited company five members personally present shall be a quorum.
Quorum for Private limited company: In case of private limited company whose number of members does not exceed six, two members will be sufficient to make a quorum. And in case where the member is more than six, three members are needed.
According to the case of Sharp v. Dawes, Lord Coleridge gave a suggestion that the word ‘Meeting’ prima facie means a coming together of more than one person.’ But to be a meeting in the meaning of the Act, the procedure must be followed properly. So quorum as an essential element of meeting should be existing.

6. Resolution: If the decision of a meeting is adopted with the majority or all members’ vote, it is called a resolution.
B.N Tandon says that – a resolution is a motion or a proposition with or without any amendment which has been adopted at a meeting. Resolutions are of three kinds:
1. General resolution,
2. Special resolution,
3. Extra- ordinary resolution.

Ordinary resolution: A resolution is said to be ordinary when the votes cast n favour of it at a general meeting of a company exceed the votes, if any, cast against the resolution. In other words, ordinary resolution means a resolution passed by a simple majority of shareholders.
According to B.N.Tandon, ‘ A motion when passed by a simple majority of the members present at the meeting and who are entitled to cast vote or by their proxies when allowed is called an ordinary resolution.

Special Resolution: A resolution shall be a special resolution when it has been passed by such majority as is required for passing of an extra-ordinary and at a general meeting of which not less than 21 days notice specifying the intention to propose a resolution as a special resolution has been duly given. The decision of special resolution shall be submitted to the registrar within 15 days of the passing of resolution. The special resolution can be passed about –
1. Name change,
2. Change of any clause of memorandum,
3. Change of any article of Articles of association,
4. Lessening of capital,
5. Determining the salary of the members,
6. Dissolution of the company voluntarily,

Extra-ordinary resolution: A resolution shall be an extra-ordinary resolution when it has been passed by a majority of not less than three-fourth of such members entitled to vote as are present in person or by proxy, where proxies are allowed, at a general meeting of which notice specifying the intention to pass the resolution as an extra-ordinary resolution, has been duly passed.

Registration of resolution: A copy of every special resolution and extra-ordinary shall, within fifteen days from the passing thereof, be printed or type-written and duly certified under the signature of an officer of the company and filed with the registrar who shall record the same.
It was observed in Mousel & co. ltd. V. The Registrar, that the registrar has a quasi – judicial function and certain discretion in the matter of recording resolutions.

Winding up is a process where the company’s asset will be gathered and will be used to pay all debts, and the balance for the cost of winding up will be distributed among the shareholders according to their interests in the company. According to Professor Gower, ‘Winding up of a company is the process where-by its life is ended and its property administered for the benefit of its creditors and members.' In the process of winding up the assets of the company are realized by converting them into money and the same is then applied for the satisfaction of the debts. The shareholders do not get anything until the creditors are fully paid. The process of winding up is called liquidation. The process of winding up begins when the court passes an order of winding up or a resolution is passed for voluntary winding up. The company is dissolved after the completion of the winding up proceedings. On the dissolution the company ceases to exist.

Methods of winding up: The process which is followed in the course of winding up is called method of winding up. Section 234 lays down three methods of winding up. Those are –

a. Winding up by the court,
b. Voluntary winding up,
c. Winding up under the supervision of the court.

The brief discussion of these three abovementioned methods is given below:
Winding up by the Court: The court gives order for winding up, if the share-holders, or the creditors or the Registrar of the company Applies to the court, or on any other reasonable ground. After close scrutiny of section 241, we can get six grounds of winding up of a company by court. Those grounds are written below:

1. Passing of special resolution: If the company passes special resolution and resolves that the company would be wound up by the court, then the court can dissolve the company. In an Indian case the company itself was the petitioner and the financial condition of the company was eroded, the court ordered winding up for public interest. Though the company passes a resolution the court is not bound to order for winding up. The power is discretionary. The court may not order for winding up if it would be opposed to public interest or company’s interest. Parties seeking for an order from a court must have equity in their favour.

2. Failure to make statutory report or hold statutory meeting: If the company fails to file statutory report or to hold the statutory meeting the court may order to wind up the company. The petition for winding up on this ground can be presented either by the registrar or by a contributory.

3. Failure to commence business: A company may be wound up by the court if the company does not commence its business within a year of incorporation, or suspends its business for a whole year. The court will see in this case that whether there is a reasonable hope of the company commencing or resuming business and doing it at a profit and the substratum of the company has disappeared. In this case the court also commented that in the matter of winding up the wishes of the creditors and contributories have to be taken into consideration and the court may call a meeting for ascertaining their wishes. If the company is solvent and there are no allegations of mismanagement, and it is hopeful of doing profitable business in future, it is not necessary to wind it up only because it suspended its business for over a year. Only business which is authorized by the memorandum is to be considered to determine whether the company has suspended its business or not. Company does not cease to carry on business if it transfers its undertakings to a subsidiary company. Where the company’s subsidiaries were functioning winding up was not ordered though the company itself had ceased to function. In the case of Vega Sweaters (Pvt.) Ltd The court held that If the business of a company has been stopped for more than one year and the number of shareholders falls below two, the company is liable to be wound up. In an Indian case winding up was ordered where because of the heavy indebtedness of the company’s assets were under creditor’s possession and no business could be done for more than one year.

4. Number of members below the limit: If the number of members is reduced, in the case of private company below two, or, in case of any other company, below seven, the court may order to wind up the company. This is a hard and fast rule which is to be followed strictly if there is no reasonable excuse.

5. Inability to pay debts: A company may be wound up by the court if it is unable to pay debts. A debt must be a determined or definite sum of money payable at a future date. Where the company acts as guarantor for repayment of a loan, and the principal has defaulted, the amount guaranteed has become a debt for which a petition for winding up lies. Winding up is a last resort and cannot be installed merely because the company is unable its debt as long as it can be resurrected by a scheme or arrangement. Inability to pay debts is explained in section 242. It lays down that –

(1) A company shall be deemed to be unable to pay its debts--

(i) if a creditor, by assignment or otherwise, to whom the company is indebted for a sum exceeding five thousand taka then due, has served on the company, by causing the same to be delivered by registered post or otherwise at its registered office, a demand under his hands requiring the company to pay the sum so due and the company has for three weeks thereafter neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor; or
(ii) if execution or other process issued on a decree or order of any court in favour of a creditor of the company is returned unsatisfied in whole or in part; or
(iii) if it is proved to the satisfaction of the Court that the company is unable to pay its debts, the Court shall take into account the contingent and prospective liabilities of the company.

(2) The demand referred to in clause (i) of sub--section (1) shall be deemed to have been duly given under the hand of the creditor if it is signed by an agent or legal advisor duly authorised on his behalf, or in the case of a firm, if it is signed by such agent, or by a legal adviser or by any one member of the firm on behalf of the firm.
Creditor who is unable to obtain payment of his debt has the right ex debito justiciate to a winding up order. In the case of Bangladesh Tyres Ltd. V Agrani Bank & Others the maintainability of the application for winding up on grounds of inability to pay debts was challenged upon a counter claim of money by the appellant company. The court found that the counter claim to be just an allegation, no evidence having been placed been placed before the court in support of the counter claim. Such counter claim was not acceptable. The debt must be presently payable to the creditors. It is necessary that the creditor should have delivered the demand to the registered office of the company. Statutory notice is a highly formal and important document and it would appear to follow that the provision of the Act as to service upon the company must be strictly observed. In the case of decreed debt under section 242(1)(ii), question of bona fide dispute may arise, and the court may instead of passing an winding up order, allow the petitioner to stand over on an undertaking by the company. In determining the inability of the company to pay debts the court shall take into account the prospective and contingent liability. The expression commercial insolvency was explained by Sir James in European Life Assurance Society, Re.

6. Just and equitable Ground: Section 241(vi) gives the court a wide discretion in winding up a company on just and equitable ground. The court can give due regard to some points. Those are: a. Interest of the company, b. Interest of the employees, c. interest of the creditors, d. interest of the shareholders, e. general public interest should also be considered.

There must be a strong ground for liquidating a company. It is said that , the winding up matter is a serious affairs which is evident from the perusal of the entire part V, of the Act and in this connection the anxiety of the Privy council in the case of unjustified winding up order may be noticed. A limited company being a juristic person, lives, runs and functions under the provisions of a statute, death warrant can be issued under the same statute. The death warrant in the form of winding up should be sparingly issued. To the last minute effort should be made to save a company from liquidation. Moreover the court may refuse to make an order of winding up, if it is of the opinion that some other remedy is available to the petitioner and he is acting unreasonably in seeking to have the company wound up, instead of pursuing that other remedy. There are some reasons of winding up of a company on just and equitable ground.

LAW OF EVIDENCE 

Question and Answers

EVIDENCE ACT

Ques: What do you understand by best evidence Rule?
Ans. The best Evidence Rule means that the best evidence of which the case in its nature susceptible, must always be produced. (Abdul Majid Vs. State, 39 DLR 414) It means the evidence which is higher in degree or credibility will prevail. For example, Oral evidence can e produced to prove any or all facts.( Section 59 of the Evidence Act). But it must be direct Evidence (Section 60). That means it will prevail over the circumstancial evidence and hearsay evidnce. So for the purpose of giving effect of the best evidence rule , in case of oral evidence it must be that of a person who had directly seen, heard, or perceived by sense or it will be the opinion of a person who holds that opinion ( Section 60). Though all facts can be prved by orall evidence, in case of proving te contents of documents the primary evidence of the document is the best evidence.In the famopus case of – Dinomoyi Debi V. Roy Luchmiput Singh, it was held that ---- “It is a cardinal principle of evidence that where written documents exist, they must be produced as being the best evidence of their own contents.”
But in the case of Documentary evidence primary evidence will prevail over the secondary evidence as mentioned in section 64. So, here Primary Evidence is the Best Evidence in comparison to Secondary Evidence. 
In some cases, Primary as well as Secondary evidence will prevail over oral evidence. It is provided in sections 91 and 92.
Sectiion 91 provids that, when the terms of a contract or of a grant ,or of any other disposition of property have been reduced to the form a document, and in all cases in which any matter is required by by law to be reduced to the form of a document, no other evidence except the document itself or secondary evidence where it is admissible shall be given.
That means in two case direct or secondary evidence will prevail over oral evidence. Those are ---
1. Where the terms of a contract, or of a grant or disposition of property has been reduced to the form of a document.
2. In all cases in which any matter is required by law to be reduced to the form of a document. 
In the abovementioned situation if any document is proved, then no other oral evidence will be admitted for the purpose of varying, contradicting, adding or subtracting from the terms. So here documentary evidence is the best evidence.
From the above discussion we can understand that Best evidnce is that evidence which a party in the most of his power can offer in support of his cause or claim. (MD. Nazrul Islam , Reflection on the law of Evidence, p. 294) 
Ques: What is Patent and latent ambiguity? Write Distinctions Between Them.

Ans: Interpretation to documents is an important task for the courts to come in a right decision. So, interpretation must be done with great care and caution. There are some rules of interpretation of Documentary evidence in Sections 93- 98 of the Evidence Act. The first rule of interpretation enumerates that if the language of the the document is plain in itself, and when applies accurately to existing facts, the court should not alter the meaning by giving it extraneous interpretation. But sometimes there may be some vagueness in the document. According to Lord Bacon, all ambiguities may be either Patent or Latent. These are Latin Terms named as 1. Ambiguitus Patens, 2. Ambiguitus Latens. 
Patent Ambiguity: According to Lord Bacon, ‘ A patent ambiguity is one which appears to be ambiguous upon the deed or instrument.’ 
According top K.K. Singh, ‘Ambiguity Patent is that where the the document appears to be ambiguous on the face of the dcument.’
According to Starke, ‘ By patent ambiguity must be understood an anbiguity inherent in the words and incapable of being dispelled either by any legal rules of construction applied to the instrumentitself or by evidence showing that terms.
In our Evidence Act, no such word like Patent Ambiguity is given But Section 93 deals with such ambiguity.It says that if the language of the Deed is uncertain and defective in itself, no evidence can be given to show its meaning or to supply its defects. 
Priniple: The duty of the court is always interpretation, to find out not really what was the intention of the partis, but merely to find out the meaning of the words expressed by them.( Gwillim vs. Gwillim – 1833).
Under section 93 it is the language of the document alone that will decide the question and it would nit be open to the parties or the court to attempt to remove the vagueness by relying upon any extrinsic evidence. Such an attempt would really mean the making of a new contract ( Lallubhai Patel vs. Lalbhai TrikumalMills – 1958 SCJ 866). 
Example: In a contract for transportation with the food Corporation of India, the column for the transport charges were left blank, the attempt of both sides to give evidence of the oral agreement on the point was not accepted, since blank spacs cannot be filled by oral agreements. The charges for services rendered may be recovered under section 70 of the Contract Act. ( Food Corp. Of India V. Birendra Nath dhar, AIR 1989 NOC 119 Cal) .
Latent Ambiguity : According to Lord Bacon, Latent ambiguity is one which seemeth certain and without ambiguity for anything which appeareth upon the deed or instrument, but there is some collateral matter out of the deed that breedeth ambiguity.
Though does not mention the name, in Evidence Act, Section (95-97) deal with Latent Ambiguity.
According to K.K. Singh, ‘ Latent ambiguity means that the document is clear, unambiguous an plain on the face of it, but ambiguity arises when it is being applied in existing facts.( The Indian evidence Act, K.K.singh, 2nd ed, p.230)
Section 95 says that, when lnguage used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.So, latent Ambiguity is such ambuiguity that nobody can trace out any defect in the language of the deed ambiguous docment merely by reading the docment, but the defect comes out when it is not accurately applying to existing facts referred to in the diocument. 
Principle: It is based on the Maxim, “ Falsa Demonstratio non necet” that means ‘a false description does not vitiate the docment.’ 
Example: A sells a housse to B, by deed – ‘My house in Dhaka.’ Ahad no house in Dhaka, but it appears that he had a house at narayanganj, of which B had been in possession since execution of the deed. These facts may be proved to show that the deed related o the house at Narayanganj.
Under section 96, another principle of latent abiguity is given. That is – where the description in document applies equaly to one of the two or more subjets, evidece to explain its language is admissible.
Example: A agrees to sell to B, for tk. 1000, my White horse. A has two white horses. Evidence may be given of facts which of them was meant.
Section 97 enumerates another principle of Latent Ambiguity. It says that – when the language used applie partly to one set of existing facts, but the whole it does not apply correctlyto either, evidence may be given to show to which of the two it was meant to apply.
Example: A agrees to sell to B ‘My land at X’ in the occupation of y’. A has land at X’ but not in occupation of Y’ and he has a land in the occupation of Y, but not at X’. Evidence may be given of facts showing which he meant to sell. 

Ques: Distinguish between Patent and Latent Ambiguity.

These two terms have some differences which are given below:
A good test of difference is to put the instrument ino the hads of an intelligent educated person. If on the perusal he finds no ambiguity but there is nevertheless an uncertainity as to its application, the ambiguiy is latent; if he detects abiguity from merely reading the instrument it is patent. ( Norton, S. 633, pp.351-352. 

*In the patent ambiguity, the vagueness can be shown on the face of the instrument; on the other hand no such defects can be found on the instrument in case of latent ambiguity.

*In the aptent ambiguity the contradiction is in the existing words or language. But in case of latent ambiguity contradiction is with the existing facts.

*The ambiguity is inherent in the document in case of patent ambiguity. And in case of latent ambiguity the Vagueness is eclipsed.

*Patent ambiguity is Subjectie ambiguity; whereas, the patent ambiguity is objective ambiguity.

*In case of Patent Ambiguity extrinsic evidence is not admissible to remove it. (section 93) But extrinsic evidence is admissible in case of Latent ambiguity. (Section 9, 96, 97 of the Evidence Act)

From the above discussion we can say that in case of Patent Ambiguity no lenient Interpretation is given but in case of Latent Ambiguity the court takes a lenient view according to the Act.

Ques: Explain the relevency of admission in civil and criminal proceeding.

Introductory note: Section 17 to 31 of the Evidence Act 1872, deal with relevacy of admission.Section 17 to 23 deals with about the relevancy of admission whereas section (24-30) deal with relevancy of admissions which is known as confssion. Section 31 enumerates an overall –spreading principle of estoppel. Now, I shall discuss about the relevancy of admission in civil and criminal proceeding separately. 

Relevancy of admission in Civil Proceeding: Generally te civil proceeding deals with right in property or office or any pecuniary relation, rights arised from contract or any kind of suit for compensation or damage.In determining rights and liabilities in civil cases sometimes admission of parties are brought into consideration. These provisions are enumerated in some sections of Evidence Act. Those are described below-

Section18, enumerates that if any statement is made by any party to the proceedingor their representative, holding the representative character at the time of making such statement, is admission [Section 18(1)]if any inference of any fact in issue or relevant fact can be drawn from the statement.[Section 17] So, in a Civil case, the statement of a party or his representative is relevant, provided that the representative made the statement on behalf of his engagor while sustaining such character.
Statement of persons who are interested together in proprietary or pecuniary capacity are admissible against each other. This is about relation of proprietary and pecuniary is nature. So, it is relevant for civil cases. To render the admissionof one person is amissble against another, it must relate to some matter in which either both were jointly interested or one was interested dervatively, through the other, and a mere ommunity of interest will not be sufficient. [Johnson v. Lindsay, 1899, 53 JP 599]  
Section 19, enumerates a rule about admission by strangers become relevant in which cases. This section mainly applies in Civil cases. The admission of a third person against his own interest, when it affects his liability and when that position or liability has to be proved against the party. [Appavu V. Nanjappa 20 IC 792] 

For Example – A’ undertakes to collect rents for B’. B’ sues A’ for not collecting rent due from C’ to B’. A statement by C’ that he owed B’ rent is an admission, and is a relevant fact as against A’ if A’ denies that C’ did owe rent to B’.  

Section 20 says about admission of strangers when applicable, wich is the second exception of general rule laid down in section 18.If a man refers another upon any particular business to a third person, he is bound by what the third person , i.e. referee says or does concerning it as much as that had been said or done by himself. This rule is mainly applied in civil case, though it can be applied in criminal cases considering section 25, 26, 27, and other sections relating.

Section 22 says about the oral admission when a party can prove that they are entitled to give secondart evidence for proving a document, then they can pose oral admission to prove it. This rule is applicable for both civil & criminal cases (Sheo V. Juggernath - 10 1A 79).

Section 23 This section is exclusively for relevency of admission in civil cases. This section provides that in civil cases an admission is not relevant when it is made upon an express condition that evidence of it is not to be given (or 2) under circumtances from which the court can infer that the parties agreed together that evidence of it should not be given at sit finislitium ( it is for the interest of the state that there should be an end of litigation).  
From the above discussion we can say that in civil procedding admission become relevant, when :-

1. it is made by parties to the procedding.
2. it is made by representives acting as representatives at the time of making admission.
3. it is made by interested parties.
4. it is made by a person who is referred by a party.
5. it is made to prove a document by oral evidence.
6. And it is not relevant when agreement or understanding between the parties not to disclose the admission exists.

Relevency of Admission in Criminal Cases :
Admissions which are used in criminal cases are called as confession. Confessions can be of two kinds- Judicial & Extra-judicial. The weight or evidentiar value of judicial confession is greater. To become relevant the following conditions should be fulfilled-
1. It must not be caused by inducement, threat or promise (section-24).
2. It must not be made to a police officer (section-25), subject to the provisions of section 27.
3. It must be made in the immediate presence of a magistrate when the accused is in the custody of police officer.
4. It must be made after the impression, caused by any inducement, etc. has been fully removed (section-28)
5. The confession of an accused is relevant only against himself, subject to section 30. 

A Confession which is voluntary is admissible,even if it is false, on the contrary of confession which is not voluntary is not admissible however true it may be (Fatehchand V E, 26 crl 937). The burden of proving the voluntary or involuntary chracter of confession, under the English law, lies on the prosecution {R V. Thomson (1893) 2 QB 12}. It is the duty of the court to enquire very carefully into the matter and circumstances under which the confession was taken and particularly the length of time during which the accused was in custody.

Where an officer accused person himself makes a confessional statement which is taken down as a first information report, the statement is inadmissible against the accused as it amounts to a confession to a police officer {State Vs. Ghandal (13 DLR WP 62)}.

Long detention is the custody of police after arrest & prior to his production before the magestrate renders his confession (which he made to the magistnate) inadmissible against him {Haji Year Muhammad Vs. Rahim Dino (13 DLR WP58)}.

Safar Ali Vs. State (36 DLR 185) where the accused was deteined in police custody for three days prior to his production & confession before the magistrate, his lordship Aminur Rahman Khan J, observed-

"Prolonged police custody immediately proceeding the making of confession is sufficient if not otherwise properly explained to brand it as involuntary. In this case, there was no explanation from the prosecution side why the accused was detained in Thana custody for 3 days."

The requirement of section 26 is that if an accused gives confession in the custody of a police officer he must have given before a magistnate.

The another principle of relevancy of admission in criminal proceeding is that which is enumerated in section 27. In Demon upadhyaya's case Shah J. has observed that, section 27 is founded on the principle that even tough the evidence relating to confessional or other statements made by a person, whils't he is in the custody of a police officer, is tainted 7 therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be prenmed to be untainted & therefore, declared provable is so far as it distinctly related to the fact thereby discovered {1961 (2) SCJ334}.

In English law the confession made by an accused person to a police oficer or whilst he is in police custody is admissible. In our country it is otherwise.

If the confessional statement is supported by discovery of facts it is presumed to be proved & not to have been extracted. It is obvious that the provisions of section 27 Evidence are not restricted to "Confessions" but its not is muych wider that can contain all statements containing information that lead to discovery of facts (Nabi Mohammad Chand Hossain Vs. State of Maharastra, 1980 CrL 860).

Section 28 enumerates another principle about relevancy of admission in criminal proceedings that is - A confession is admissible after impressions caused by inducement, threat, etc. has been fully removed because it then becomes free becomes free & voluntary.

Another Principle about admission is derived is section 29. It enumeratews that if a confession which is shown to be otherwise relevant does not become irrelevant merely because of the circumstances like breach of promise of secrecy, etc.

That means it may not be admissible as a confession, but it can be admissible in other grounds.
Section 30, enumerates a principle that a confession of an accused can be used as against him as well as his accomplices.because, when a person admits his guilt & exposes himself to the pains & penalties provided therefore, there is a guarantee for his truth (West 1){R V. Daji Narsu (1882) 6 Bom 288}.

Admission to be used against the person who makes it: 
Section 21 gives an overall idea & principle which us applicable boths in civil & criminal proceddings. It enumerates that Admission are relevant & it is used against the person who makes it or his representative in interest. But admission can be used for or on behalf of the person making it in three cases. Such as :
1. If the persons were dead it would be relevant as between third persons under Section 32.
2. When a person makes statement of the existence of any state of mind or body, relevant or in issue, made at a time when such state of mind or body existed which was accompanied by any conduct making its falsehood improbable.
3. An admission which is relevant otherwise than as an admission.

Estoppel- The effect of admission:
 Admission whether written oral, or implied from conduct or assumed character are not conclusive of the matter admitted, i.e. although they are good evidence against the party making them or his representive in interest, he is not concluded by them & is at liberty to prove that they were under threat or inducement or fraud or they made it under mistake of law or fact. But he is estopped by his statement. It is the essence of estopped that a party is wholly estopped or precluded from contradiction his former representation or conduct.
 
Hense estopped is a conclusive admission. On the otherhand admission are not conclusive proofs of the matter admitted, but in (civil cases) the persons making the admissions may be estopped from disproving them & they thus operate as conclusive proof.
 
From the above discussion we can clearly understand that the Evidence Act clearly enumerates the rules & principles about relevancy of admission in civil & criminal proceedings.

Ques. Discuss the evidentiary value of character of a person in a civil & criminal proceeding under the Evidence Act.
Ans:
Evidense Act 1872 deals with the different matters. Character is one of them. Section 52 to 55 of the Evidence Act discuss about character. Section 52 to 55 discuss about the relevency of character in civil & criminal proceeding.

Before discussing the evidentiary value of character of a person in civil & criminal proceeding we should know what do we mean by character.

Explanation of section 55 defines the character. In a words, character includes both reputation & disposition.

Evidentiary value of character of a person in civil cases :
From section 52 we can get a clear idea that in civil proceeding the character of parties is irrelevant. Civil proceeding deal with the parties rights to some property or office- not with any crime; suits for torts deal with a person’s rights or liabilities in damages. For example: compensations. In short, ina civik action a party’s character can neither be used as a weapon of offence nor as a shield of defence.

In section 52, there is, however, a subtle exception to the rule of excluding character evidence underlying the clause except in so far as such character appears from facts otherwise relevant. The meassing of this clause is that, though the parties are precluded from giving evidence of good character in their opponents, the court has its own discretion to draw presumption with regard to the probability, whether in the affirmative or in the negative, of a party’s liability, in a view of his character as revealed from the relevant facts adduced in evidence in the suit. The word ‘appears’ means as the party’s character appears or seems apparent to the court from facts not adduced as evidence but as adduced in proof or defence of the action.
Section 55 reveals the fact that character of a party in a suit for damages is relevant 

Case: State vs. Liton & Abdul Matin and others 7 BLC 622 . Again section 12 states that in suits where the plaintiff would get damages as a pecuniary satisfaction 

Case : Ma Sein jin vs. Kayaw Maung (1936).

Success, the facts, which would increase or decrease the amount of damages would be relevant.
So, we can say that in general character of a person irrelevant in a civil preceeing but sometimes it may be relevant.

Evidentiary value of character of a person in criminal proceedings :
Section 53 states that –
In criminal proceedings the fact that the person accused is of a good character is relevant. From the above section it can be said that good character of any accused person is relevant in a criminal preceedings. This means that , a person indicted for the commission of an offence or crime can always lead into evidence as relevant any fact which would show that he is a person of good character. 

Case:
Habeb Mohammad vs. State (1954)
It was held in the above mentioned case that A man’s character is often a matter of importance in explaining his conduct & in judging his innocence or criminality.
Section 54 states that good character as well as bad character is relevant. But in this section the prusecution is not allowed to give evidence of the bad character of the accused in criminal proceedings. Except in the two exceptional cases-
a) When the evidence of good character of the accused has been given &
b) When the bad character of the accused itself is a fact in issue.


Case:
Kazi Mazharul Haque vs. State. 33 DLR 202
It was held any entry in any public document by a public servant in the discharge of his official duties is relevant.
From the above discussion we can say that character of any person plays a vital role in the evidence act.


Whether reputation or disposition supports the definition of character.
Explanation of section 55 states that-
In section 52,53,54 & 55 the word ‘character’ includes both reputation & disposition; but (except as provided in section 54) evidence may be given only of general reputation & disposition & not of particular acts by which reputation or disposition were shown.

According to explanation the word ‘character’ includes reputation as well as disposition of a man. A man’s reputation is the public opinion about him. It means what though of a person by others on the otherhand disposition is the individual opinion of the witness about a person. Rumour about a man is not his reputation. Rumour is hearsay evidence of a particular fact.

Explanation makes it clear that the evidence of general reputation or general disposition may be given but not of particuolar fact.As the most consummate villain may be able to prove that on same occassion he has acted with humanity, fairness or honour. A man’s general reputation is the reputation, which he bears in the place in which he lives amongst all the townsmen & if it is proved that a man who lives in a particular place is looked upon by his fellow townsmen, whether they happen to know him or not, as a a man of good repute, that is strong evidence that he is a man of good character. On the otherhand if the state ofthings is that the body of his fellow townsmen who know him took upon him as a dangerous man & a man of bad habits, that is strong evidence that he is a man of bad character.

Case:
Raisri prasad vs. Queen Empress Ltd. 23 C 621
It was held that the general reputaion of a man is the direct evidence of his character.

So character includes the general reputation & general disposition.



Ques: What is character? What kind of character is relevant in criminal proceedings?
Ans:
Section 55 discuss about the definition of character. Character of an accused person is relevant in criminal preceeding.

Definition of Character:
Explanation of section 55 contains the definition of character.
In section 52,53,54 & 55, the word character includes both reputation &dis position; but (except as provided in section 54), evidence may be given only of general reputation & general disposition, and not of particular acts by which reputation or disposition were shown.

In short, the word character includes reputation & disposition.

Relevant character in criminal proceedings:
Section 53 states that-
In crimainalproceedings, the fact that the person accused is of good character is relevant. Section 53 says only this that the fact that the accused is of good character, is relevant. This only means that if the accused desires, he is at liberty to lead evidence to his good character, specially where two interpretations may be made of his good conduct. The accused, a subedar in the state of Hyderabad, had proceeded to a village within his Suba with a party of police & without any justification had ordered his men to open fire on unarmed & in offensive Hindu villagers, as a result of which four men died. The defence version was that action had to be taken because violent resistance was offered by villagers to the arrest of a certain criminal whom they were harbouring. The accused, charged under section 302, applied for the examination of defence witness for the purpose of establishing the motive of his action & the state of his mind. He proposed through such witness to show that he was not minical to Hindus & that his behaviour towards them in the past was friendly & protective. The trial judge disallowed his application.

Case:
Habeeb Mohammad vs. State of Hyderabad (1954)
It was held that the accused was entitled to defend himself as proposed & the denial of that opportunity to hi had vitiated the trial.

So we can see that good character of an accused person is relevant in criminal proceedings.

This section is based on the principle that the evidence of good character about an accused person may prove his innocence. Even an innocent person may become accused, not because he has committed the offence but because of certain circumstances against him. In such cases the evidence of good character may be helpful in proving the accused’s innocence & can explains acts & conduct.



Ques: Admission are not conclusive proof, but may act as an estoppel- discuss.
Ans:
Section 31 lays down that-
“ Admission are not conclusive proof of the matter admitted but they may operate estoppels under the provisions herein after contained.”
This section declaries that admission unless they operate as estoppel are not conclusive proof the matters admitted & this is a rebuttable evidence against their maker. An admission is not conclusive as the truth of the matters stated therein. It is only a piece of evidence, the weight to be attached to which must depend upon the circumstances under which it is made. If the first part of the section stating admission are not conclusive proof of the matters admitted implies if a person admits something he will have the right to retract from the fact admitted.

Case:
Pakistan Development Corporation Ltd. PLD (WP) Karachi;885
It was held that as admissions are not conclusive proof so it is always open to a person who has made an admission to show that he had done so under some mistakes, misrepresentation or miscalculation.

But the above mentioned statement does not mean an admission can never be a conclusive proof as the second part of the part containing “they may operate as estoppels under the provisions hereinafter contained” clears it that admission may be conclusive proof by way of estoppel as stated in section 115.

Except in cases of estoppel, though admissions are not conclusive proof bt if duly proved, is sufficient evidence of the fact admitted. Because there is no rule of law nor anything in this act to prevent a court from acting & deciding an issue on the basis of admission if the admission has been proved & the maker has failed to satisfy the court that it was untrue or mistaken.

From the above discussion we can say it that an admission is not conclusive proof of the matter but a very strong evidence is required to rebut the inference drawn from the admission.