Orissa High Court
Kulamani Mohanty vs Industrial Development Corporation Of ... on 10 July, 2001
Equivalent citations: AIR2002ORI38, AIR 2002 ORISSA 38
Author: P.K. Tripathy
Bench: P.K. Tripathy
ORDER P.K. Tripathy, J.
1. The simple money decree by the learned Subordinate Judge, Bargarh vide the impugned judgment dated 30th March, 1977 in Money Suit No. 78 of 1972 instituted by the Respondent is under appeal at the instance of the appellant, who was the sole defendant in the Court below.
2. Respondent is a Public Limited Company and the appellant was working as a ministerial staff in it in Hira Cement Works at Bargarh. According to the plaint allegation, while in-charge of the duty of clearing goods from the Railways and various Transport Corporations the appellant was taking advance amount from the plaintiff to meet the expenditure and was to submit bills and vouchers in that respect besides refunding the unspent amount. In that process though the appellant received several advances, but when the account was worked out it was found that out of the total advances the bills and vouchers accounted for by the appellant was less by Rs. 3,621.61 paise by 1-4-1970. That amount relates to the financial year 1969-70. As against the total advances of Rs. 61,671.02 paise received during 1970-71, appellant accounted for Rs. 53,621.25 paise. making Rs. 8,049.77 paise as outstanding balance against him. Similarly, in the year 1971-72 out of the total advance of Rs. 67,860.06 paise, appellant could account for Rs. 52,073.98 paise and the outstanding became Rs. 15,786.08 paise, The total of the aforesaid outstanding amount was to the tune of Rs. 27,457.46 paise, which, the appellant, in spite of the undertaking in Ext. 11, failed to pay and hence the suit was instituted for recovery of the said amount.
3. In his written statement the appellant while admitting the plaintiffs case regarding his employment, aforesaid nature of the Job and receipt of the advances for the aforesaid purpose, he advanced the defence plea that all the advances taken by him were duly accounted for either by spending or refunding and the plaintiff with a malice has made a fraudulent claim. He thus denied his liability to make refund of any amount out of the suit claim. In that respect he also advanced a plea that according to the settled office procedure if any employee was to receive any advance to meet any financial expenditure, then before he is sanctioned a further amount for such purposes, there must be clearance certificate by the Accounts Section about adjustment of the previous advance drawn. At that stage no further amount was being given as advance for expenditure purpose in the event of outstanding of any amount against such employee. As a corollary, the appellant thus pleaded that the repeated advances of money for expenditure advanced in his favour presupposes of clearing of the previous advances received by him. In the written statement, appellant also challenged the maintainability of the suit in its present form, claimed the suit to be without any cause of action and in Paragraph 11 of the written statement also stated that 'claim in the suit is excessive'.
4. On the basis of the aforesaid pleadings, learned Subordinate Judge framed the following four issues :--
(i) Whether the suit is maintainable?
(ii) is there any cause of action?
(iii) is the plaintiff entitled for a decree of the suit amount? and
(iv) To what relief the plaintiff is entitled?
5. To prove its case, plaintiff relied on the oral evidence of three witnesses, viz. P.W. 1 Paramananda Pradhan, (Accounts Officer in Hira Cement), P.W. 2 Sri P. K. Bhoi (Assistant in the Sales Department, Hira Cement) and P.W. 3 Sri A. K. Mallick (Assistant in the Accounts Section, Hira Cement). It also relied on the documents marked Exts. 1 to 13 series. Out of the same. Ext. 1 is the resolution of the Board of Directors authorising the General Manager. Hira Cement Works, Bargarh, inter alia, to institute and prosecute the suit. That resolution was dated 28th October, 1969. Exts. 2 to 9 series are the relevant entries in the Ledger Book with respect to the advances given to the appellant and receipts and vouchers thereof in support of payment and accounting for of the said advances. Ext. 11 is the undertaking given by the appellant on 3-5-1972 and Ext. 12 is the list of duplicate vouchers submitted by the appellant with the cover letter dated 2-10-1971. Exts. 13 to 13/c are the credit cash vouchers showing the payment made by the defendant in cash for the advances taken by him on four different dates in 1969, 1970 and 1971. Ext. 10 is the office copy of notice issued to the appellant demanding refund of the outstanding dues.
As against that, the defendant examined himself as the solitary witness for defence and relied on Exts. A to E, which are five pay orders relating to the month of May, June and August, 1969. These documents respectively correspond to Exts. 5/a(33), 5/a(41), 5/a(40), 6/a(12) and 5/a(15).
6. Learned Subordinate Judge answered all the issues in favour of the plaintiff with calculating and determining the amount liable to be refunded by the appellant at Rs. 23,497.49 paise. Learned Subordinate Judge found that Ext. 1 is sufficient to hold that the General Manager had the authority to Institute the suit and sign the plaint. He also rejected the contention of the appellant that the suit is barred by limitation under Article 19 of the Limitation Act, 1963. He also held that non-production of suit documents by the respondent at the stage of admission of the suit does not defeat the said claim, though irregular, inasmuch as the defendant was permitted to inspect those documents by the date of commencement of hearing of the suit and under such circumstance no prejudice was caused to him. That is how he decided Issue No. 1 in favour of the respondent. From out of the said discussion, he recorded the finding that since a claim for refund of money has been made, there is cause of action for the suit and accordingly affirmatively decided Issue No. 3. On making a meticulous examination of the documentary and oral evidence, learned Subordinate Judge fixed the liability of the appellant at Rs. 23,497.49 paise and passed the decree for recovery of the same. It be noted here that some inaccuracy in calculation and wrong method adopted in accounting, which is found by this Court, is noted and corrected in a tabular chart at a succeeding paragraph in this judgment.
7. In the appeal memo the appellant has challenged the findings on Issue No. 3 only inasmuch as he has not challenged the findings recorded by the trial Court regarding Issue Nos. 1 and 2. It is needless to point out that the findings on Issue No. 4 is consequential to Issue No. 3. Learned counsel for the appellant argued that learned Subordinate Judge failed to properly appreciate the evidence on record and also incorrectly followed the provision of law in resting the burden of proof on the defendant to show the repayment. He further argued that the appellant never admitted about receipt of any item of the claim amount but only admitted about his occupation, nature of job and the manner in which such transactions were going on; hence that contention of the appellant could not and should not have been regarded as appellant's admission to throw the onus to disprove the claim of the respondent or to prove the refund of the advance amount. In that respect also he drew the attention of the Court to the evidence of plaintiffs witnesses. He also argued that the bills and vouchers were not properly proved by the plaintiff/respondent to stake a claim against the appellant. Accordingly, he prayed to set aside the impugned decree. In course of hearing, learned counsel for the appellant also advanced a contention that refunding of the unspent amount, though have been incorporated in the books of account and vouchers tendered in evidence by the plaintiff, but that was not properly taken into consideration by learned Subordinate Judge while examining such evidence, vide exts. 2 to 9 series. At the time of argument he could not show such instances and undertook to file a note pointing out individual item of such accounts, but he did not submit such particulars in his written notes.
8. Learned counsel appearing for the plaintiff/respondent simply advanced argument supporting the impugned-judgment.
9. After perusal of the evidence on record, both oral and documentary, the findings recorded by the trial Court and considering the above noted argument along with the citations, this Court records the following findings.
10. While challenging the Exts. 2 to 9, learned counsel for the appellant relying on the ratio in the case of Zenna Sorabji v. Mirabelle Hotel Co. (P) Ltd., AIR 1981 Bombay 446, argued that though Exts. 2 to 9 have been marked exhibits without objection, but that itself is not sufficient to prove the transaction of advancement of money in favour of the defendant unless each of the entries in the Books of Account are properly proved to have been maintained in regular course of business and it has the characteristic of the Books of Accounts as provided in Section 34 of the Evidence Act besides corroboration to the documentary evidence through relevant oral evidence. The trial Court has not recorded any finding stating that because of Exts. 2 to 9 being accepted as evidence without objection, therefore the Books of Accounts are proved. Thus the above criticism of the impugned Judgment by the appellant is not correct. However, relevancy of the abovenoted citation and the principle enunciated therein is considered along with the other citations relied upon by him in the context of proof of Books of Accounts. It may be noted that. In that connection the ratio in the case of Nagindas Ramdas v. Dalpatram Iccharam alias Brijram, AIR 1974 SC 471 relating to admission is found neither relevant nor applicable.
11. Learned counsel for the appellant argued that the Books of Accounts produced and proved by the plaintiff is far below the standard inasmuch as each of the entries has not been properly proved by the person who had endorsed the same. According to him the evidence of P.Ws. 1 to 3 does not cover all the entries alleged against the appellant and under such circumstance the Books of Accounts having not been properly proved by corroborative evidence, the allegation of advancement of money is not sustainable even if the appellant has not spect any rebuttal evidence. In that respondent he relies on the cases of The State of Andhra Pradesh v. Cheemalapati Ganeswara Rao, AIR 1963 SC 1850; Kelu Sahu v. Hadibandhu Sahu, AIR 1968 Orissa 19; Mohan Lal Bodj Raj v. Dwarka Nath Kuldeep Kumar, AIR 1985 Jammu & Kashmir 85; Hira Meher v. Birbal Prasad Agarwala, AIR 1958 Orissa 4; Sohanlal v. Gulab Chand, AIR 1966 Rajasthan 229; and Chandi Ram Deka v. Jamini Kanta Deka, AIR 1952 Assam 92. As noted above, in that respect he has also relied on the case of Madhu Pradhan v. Nara Kanhar, (1994) 2 Orissa 638 in support of his contention that weakness in the evidence of the defendant is no ground to grant relief to the plaintiff. Learned Cousel for the appellant. In the aforesaid context, distinguished that the defence plea of the appellant is not in admitting any of the entries in the Books of Accounts, but in general stating that in due discharge of his duties he was receiving amount for expenditure and the unspent amount was being refunded, that plea cannot be regarded as an admission relating to receipt of money vide any particular entry/ vouchers.
12. In the case of the State of Andhra Pradesh, (AIR 1963 SC 1850) (supra) in a case of criminal conspiracy and misappropriation, keeping in view the peculiar facts and circumstances of that case, the Apex Court propounded that :
"Section 34 Evidence Act makes entries in books of account regularly kept in the course of business relevant in all proceedings in a court of law. These entries are, however, not by themselves sufficient to charge any person with liability. Therefore, when A sues B for a sum of money, it is open to him to put his account books in evidence provided they are regularly kept in the course of business and show by reference to them that the amount claimed by him is debitted against B. The entry though made by A in his own account books, and though it is in his own favour is a piece of evidence which the Court may take into consideration for the purpose of determining whether the amount referred to therein was in fact paid by A to B. The entry by itself is of no help to A in his claim against B, but it can be considered by the Court along with the evidence of A for drawing the conclusion that the amount was paid by A to B. To this limited extent entries in the account books are relevant and can be proved. Section 34 does not go beyond that. It says nothing about non-existence of entries in account books. Hence, the absence of any corresponding entry in the account books of B to whom the payment is alleged to be made, is not by itself evidence of the fact that payment was received by B. But the absence of entry in the accounts book of B would be inconsistent with the receipt of the amount and would thus be relevant fact which can be proved under Section 11, Evidence Act. For the purpose of showing that no amount was received by B. his account books would thus be as relevant as the account books of A for the purpose of showing the contrary.
Further the non-receipt of amount by B and the non-existence of Entry in accounts pertaining to that amount would be relevant under Section 5 and the best evidence to prove the non-existence of the entry would be the account books of B himself, The value to attach to them is another matter and would be for the Court of fact to consider."
In the case of Kelu Sahu, (AIR 1968 Orissa 19) (supra,) relating to the books of account kept in regular course of business vis-a-vis the provision in Section 34. Evidence Act, this Court held that (Para 5) :
"All that the law requires is that the entries must be corroborated. Any evidence which is relevant under the Evidence Act would be sufficient for the purpose of corroboration. No particular form of evidence is necessary. The materials for corroboration may be contemporaneous vouchers, receipts, or any other documentary evidence or the testimony of witnesses. It is not necessary that independent oral evidence is to be given in each case. Even the evidence of the plaintiff himself may be sufficient for corroboration provided the Court accepts the same. Thus no inflexible rule as to the test of corroboration can be prescribed."
More or less the same view has been taken in the other cited decisions relating to the mode of proof of books of account though on different facts different conclusions were derived.
In the case of Madhu Pradhan, (1994 (2) Orissa LR 633) (supra) this Court reiterated the settled principle that plaintiff cannot succeed because of the weakness of the defence case and each case must stand on its own merit.
13. Keeping in view the aforesaid settled position of law, it has to be seen whether the books of accounts have been properly proved. It is the case of the plaintiff that the books of account exhibited in this case are kept in the office of the plaintiff, a public limited company, in regular course of business. Not only in that respect account books were produced and each of the relevant entries were proved, but also there was no challenge to that evidence of the plaintiff. As has been stated by the Apex Court and also the different High Courts including this Court (in the above noted decisions), there is no specific method of proving the books of account. If the books of account produced as the primary evidence and oral evidence is led as corroborative evidence relating to the entries in the books of accounts maintained in the regular course of business, unless the contrary is proved or any doubt is raised through evidence regarding genuineness of such books of account or any of the entries, then such books of account should be regarded as proved. The thrust of the argument of the appellant is that many of the entries were not made by P. W. No. 1. That does not make any difference Inasmuch as P.W. No. 2 is the other witness who has stated about making most of the entries. Be that as It may, when the entries were proved by the official staff from the books of account and when those entries were proved not only without objection but also no evidence was brought on record worth the name to doubt correctness of those entries, hence this Court finds no reason to reject such evidence or to hold contrary view than the findings recorded by learned subordinate Judge. As it appears, the appellant having failed to rebut and to discharge his onus, has tried to escape by resorting to unavailable technical pleas on the basis of some citations which on principle, as noted above, also do not support his stand.
14. On a careful perusal of the oral and documentary evidence and scrutiny of the same vis-a-vis findings recorded by the trial Court in accepting such evidence, this Court concerns with the factual findings and there is nothing to interfere with the same save and except the working out of the accounts on the basis of correct calculation.
15. At this juncture, it is worthwhile to state the inaccuracy in the calculation made by the trial Court, may be due to confusion in arithemetics or typographical errors. In that respect the calculation and accounting made by the trial Court and the correct accounting which this Court has worked out, is mentioned in the following chart :--
CHART SHOWING THE ACCOUNTS Accounts worked out by the trial Court on the basis of evidence on record Accounts worked out by this Court on the basis of evidence on record (A) (B) Account year Sl. No. Particulars and the mode of calculation Rs. P. Acct. year Sl. No. Particulars and the mode of calculation Rs. P. 1 2 3 4 1 2 3 4 1969-1970
(i) Total advanced amount as noted in the Register (Ext. 2) 88,115.71 1969-1970
(i) Total advance according to the gross total noted Ext. 2.
88,115.71
(ii) Defendant accounted for the expenditure (-) 84,494.10
(ii) On proper addition, the amount advanced being excess by Rs. 1346.98 p.
(-) 1,346.98
(iii) Balance due = 3,621.61
(iii) Correct figure of the total advance = 86,768.73
(iv) On proper addition the total advance as noted in the Register (Ext. 2), It comes to 86,768.73
(iv) Defendant accounted for expenditure (-) 84,494.10
(v) Difference in the total advance amount vide above sl. Nos. (i) to (ii) 1,346.98
(v) Balance amount due on the defendant = 2,274.63
(vi) Advance vouchers on eight entries in Ext. 2 totalling Rs. 1560.94 p. was not proved by plaintiff and that is liable to be deducted (-) 1.560.94
(vi) Advance vouchers in eight entries in Ext. 2 totalling Rs. 1560.94 paise not proved by the plaintiff (-) 1,560.94
(vii) Net
- 213.96
(vii) Not balance due on the defendant = 713.69 Note :-- The trial court recorded that the said Rs. 213.96 p. is to accrue to the credit of the defendant and to be carried forward to the next year for adjustment.
1970-1971
(i) Total advanced amount 61,671.02 1970-1971
(i) Total advance according as per book balance 61,671.02
(ii) Carried forward amount to the credit of the defendant from 1969-70 (-) 213.96
(ii) Expenditure accounted for by defendant (-) 53,621.25
(iii) Balance amount liable to be accounted for by the defendant 61,457.06
(iii) Balance amount 8,049.77
(iv) Expenditure accounted for by defendant (-) 53,621.25
(iv) Vouchers not proved in three items (-) 195.56
(v) Balance amount outstanding against the defendant 7,835.81
(v) Net outstanding amount (-) 7854.21
(vii) Vouchers in proof of payment on 3 entries not proved totalling (-) 195.56
(vii) Net outstanding against the defendant 7,835.81 1971-1972
(i) Total advance amount 67,860.06 1971-1972 Note :- The accounting and net amount found outstanding against the defendant at Rs. 15,661.68 paise Is correct.
(ii) Expenditure accounted for by the defendant (-) 52,073.98
(iii) Balance due = 15,786.08
(iv) Vouchers not proved on 3 items (Rs. 118/- and twice Rs. 3,20 p.) (-) 124.40
(v) Net outstanding against the defendant = 15,661.68 Therefore, on a proper assessment of evidence and proper accounting of the dues on the appellant, this Court finds that appellant is liable to pay in the following manner:--
1969-70 : Rs. 713.69 paise 1970-71 : Rs. 7854.21 paise 1971-72 : Rs. 15,661.68 paise _________________________________ Total : Rs. 24,229.58 paise
Even if the respondent has not argued anything on that aspect, perhaps for not carefully examining the account or otherwise, but once the aforesaid inaccuracy in calculation comes to the notice of this Court, as the first appellate Court, the said mistake should stand corrected notwithstanding no cross-objection filed by the respondent. In that respect, it may be noted that the total amount claimed by the plaintiff for a decree was Rs. 27,457.46 paise and he has paid the Court-fees for seeking that relief. Therefore, there is no legal bar for granting a decree to the plaintiff for Rupees 24.229.58 p.
16. At this juncture, another relevant fact must also be noted that during the course of argument though learned counsel for the appellant argued that several other bills and vouchers submitted by the appellant are on record and they were not properly taken to consideration by the trial Court, this Court did not find any such lapses or lacunae. At the same time, it may be pointed out that in course of hearing this Court also asked the appellant to furnish a list of such documents to make a further probe, but the appellant after taking time to submit such a statement, has not submitted any such statement. On the other hand, this Court finds that scrutiny of each item of evidence was properly made to fix the extent of liability of the defendant/appellant.
17. For the reasons stated above, this Court finds no merit in the appellant's argument to interfere with the impugned Judgment and accordingly the appeal is dismissed with the aforesaid modification in the decretal dues. In the suit, plaintiff prayed for pendente lite and future interest, but that relief was not granted in favour of the plaintiff. In the meantime, about 30 years have elapsed. When the money due to a public limited company has not been paid by the appellant, therefore, it is further ordered that in the event the appellant shall pay/deposit the above modified decretal amount within a period of three months from the date of this judgment, then he may not be charged with any interest. However, if he shall fall to pay or deposit the said amount within the aforesaid period, then plaintiff shall be en titled to recover the decretal dues with pendente lite and future interest at the rate of 6% per annum from the date of institution of the suit till the date of realisation.