Orissa High Court
Hira Meher And Anr. vs Birbal Prasad Agarwala on 23 April, 1957
Equivalent citations: AIR 1958 ORISSA 4, ILR (1957) CUT 437
JUDGMENT Mohapatra, J.
1. This second appeal has been filed by the defendants against the judgment and decree passed by Sri R.C. Misra, District Judge of Sambalpur, reversing the decision of Sri B.K. Misra, Munsif of Bargarh, arising out of a suit brought by plaintiff Birbal Prasad Agarwala for recovery of a sum of Rs. 611/10 representing the price of goods supplied to the defendants and for recovery of customary damages by way of interest at the rate of six per cent, per annum.
The plaintiff has laid his claim at Rs. 650/-. The plaintiff's case is that he was a businessman at Kadobahal; but as he was not on good terms with the Gountia of the village, he had to shift his business to Jhilminda at a distance of nearly two miles from his original place of business. The first defendant is the second defendant's daughter's son. The plaintiff's allegation is that the second defendant, who had a retail shop at Kadobahal, used to take articles from the shop of the plaintiff on credit.
The suit is for the price of the articles alleged to have been supplied by the plaintiff to the defendants on 22-1-1952. The plaintiff relies upon the entries in his credit register on that particular date. It is to be noted, all the articles, alleged to have been supplied to the credit of the defendants for the value of which the plaintiff has brought the suit, were supplied on that particular day and they have been entered in one page of the credit register which is Ext. 8, the entries being marked on Ext. 8/a.
2. The defence is a denial of the transaction and further that Ext. 8/a is not at all genuine. According to the defendants, they had never taken the aforesaid articles worth Rs. 611/10 on 22-1-1952 or on any other date and that they do not owe any money to the plaintiff and that a false suit has been brought on account of the plaintiff and the defendants having supported different candidates in the election of the year 1952, one of the candidates belonging to the congress party and the other having been set up by the Ganatantra Parished.
3. The trial Court dismissed the plaintiff's suit finding that Ext. 8 cannot be taken to be an account book regularly kept within the meaning of Section 34 of the Indian Evidence Act. He virtually doubted the genuineness of Ext. 8/a. He further found that there is no other evidence to fix the liability of the defendants as required under the provisions of Section 34. He had disbelieved P. Ws. 2 and 3 on whose evidence the plaintiff relied for the purpose of corroboration of the entries.
4. The lower appellate Court however has reversed the judgment of the trial Court on the finding that Ext. 8 is an account book regularly kept in the course of business and is relevant under Section 34 of the Indian Evidence Act. He also used the evidence of P. W. 2 for the purpose of corroboration. He relied upon the replies given by the defendants to the plaintiff during the course of correspondence between them.
5. I will first examine how far the testimony of P. W. 2 Gunamoni Mohapatra can be used as evidence for the purpose of corroborating the entries in Ext. 8/a. It is to be noted, the trial Court had completely disbelieved the evidence of this witness on a thorough discussion. He belongs to a different village. Rightly therefore the trial Court characterised him as a mere chance wit-ness. He made an observation that the witness might have been hired for the purpose to give evidence.
That apart he discarded his evidence as not satisfying the condition of Section 34 as it is too vague. There is 110 duobt that great weight is to be attached to the view of the trial Court in the matter of appreciation of oral evidence as he had the advantage of seeing and examining the wit-ness. The lower appellate Court certainly could come to a different finding only by giving cogent & compelling reasons. Par from giving such compelling reasons, the lower appellate Court has agreed with the view of the trial Court that the evidence of P. W. 2 is vague but nevertheless he has used it as legal evidence as contemplated under Section 34. In my view, the learned lower appellate Court has gone wrong in law in using the testimony of P. W. 2 as legal evidence required under Section 34. The matter can be clarified by quoting the short evidence of P. W. 2 in full which is as follows:
"Kaduabahal is half a mile from my house.
In Magh before last the defendant No. 2 purchased from the plaintiff's shop at Kaduabahal two or three tins of Kerosene find one or two tins of articles covered in two or three bags. This is from my memory. I am not sure about the quantity. There were other persons.
Cross examination: I used to purchase articles from the plaintiff's shop on credit. Jhilimunda is less than three furlongs from my house (page 2). It is false that I am telling lies. I cannot say if the defendant paid the price of the things purchased."
Manifestly it is too vague as found by the two Courts. He says, he does not know if the price of the things purchased was paid or not. This is the pertinent question on which corroboration is necessary. He must assert that in fact the plaintiff had supplied the articles for the value of which he has brought the suit and that also on credit. Then only there will be corroboration of the position that this transaction has been rightly entered in the credit book.
If the statements made by the witness, read as a whole, do not particularly refer to the transaction in suit which was on credit basis on the date, it cannot in law serve as evidence for the purpose of satisfying the requirements under Section 34, Evidence Act.
6. P. W. 3 Jogeswar Bhoi is a witness who was examined by the plaintiff for the purpose of proving that there was a Puncnayati where the defendant admitted the claim of the plaintiff. He had been thoroughly disbelieved by the trial Court who remarked that the witness was a hired one. The lower appellate Court has committed an error of record in observing "the learned Munsif has not disbelieved P, W. 3", but nevertheless the lower appellate Court has not used the evidence of P. W. 3 for the purpose of basing his judgment in favour of the plaintiff. We may take this evidence completely out of consideration.
7. There remains the evidence of the plaintiff himself on which Mr. Mohapatra, appearing for the respondent, places very strong reliance. Ext. 8/a has been scribed by the plaintiff himself. The trial Court in a way had disbelieved not only the plaintiff's case but also his evidence. The plaintiff had not produced his daily account book saying that he did not keep any such daily accounts. In criticising that part of the statement the trial Court disbelieved the plaintiff's version.
The lower appellate Court does not categorically make use of the plaintiff's evidence as corroborative of the entries. He makes a passing remark:
"In the present case besides the evidence of the plaintiff there is the evidence of a customer, P. W. 2, who was present on the occasion."
He mainly relied upon the evidence of P. W. 2 and the reply. The plaintiff is a party who has been disbelieved by the trial Court. But that apart, let us see how far the plaintiff's evidence, read as a whole, can be taken as legal evidence under Section 34, Evidence Act. The entire evidence was placed before me. There is no assertion that in fact the plaintiff had supplied the articles on credit on 22-1-1952 which have been so entered in Ext. 8/a. This appears to me to be a very material omission on account of which his evidence cannot be treated to be corroborative of Ext. 8/a.
8. The last item of evidence is the reply. The lower appellate Court has in a very vague way referred to the letters and replies given by the defendant. But at the time of argument the only document referred to was Ext. 1 which has a bearing on the point. This is a reply given by the defendant on 20-4-1952 to the letter of the plaintiff. The contents of the reply indicate that it can never be taken to be a case of admission on the part of the defendant that he had taken the articles on credit.
On the contrary, in very clear language he states that on the receipt of the letter of the plaintiff he was simply surprised. He asserts that in fact whatever articles he had taken from the plaintiff, their prices have been paid and that there were no dues of the plaintiff outstanding against him. In my opinion therefore this cannot be used as evidence in support of credit transaction transpiring from Ext. 8/e.
9. Coming to Exts. 8 and 8/a I am definitely of the view that they cannot be taken to be accounts regularly kept in the course of business to be relevant under Section 34, Evidence Act. Ext. 8 is not a bound book but it is a stitched one. As it appears from the statement of the plaintiff himself, he endorses the fact of advancing articles on credit and payments towards the same.
In the register, other customers have transacted business. For each such customer one separate page is given in Ext. 8. He does not say that it is regularly kept in the course of business. I will in this connexion refer to few observations of their Lordships of the Supreme Court in the case of Ganesh Prasad v. Narendranath, AIR 1953 SC 431 (A). The relevant observation appears at page 432 :
"As regards the entries in the almanac, it is necessary only to point out, as has been done by the High Court, that these are again loose sheets of papers with Wanks left at different Places. The writer is of course not available and therefore the Weight which could be attached to documents which on the face of them are regularly kept cannot attach to these papers. The sheets and entries could be substituted or interpolated at different places, if one were so minded.
Having regard to these defects therefore it is not possible to say that the entries have been made in the regular course of business and have the necessary probative value. In our opinion. therefore the conclusion of the High Court is correct."
Here indeed the plaintiff himself has scribed. But it is significant to note that in the present case the sheets and the entries could be substituted or interpolated at different places, if one were so minded. In account books regularly kept in due course of business, usually the pages are interconnected, and particularly in daily accounts, the balance of one day or one page Is carried over to the other day or the other page so that interpolation or replacement of a particular page become very difficult and sanctity is to be attached to such books. As in the present case this is not the position and very conveniently the pages can be replaced or interpolated, I am not prepared to attach any importance to Ext. 8/a.
I will also refer to some observations made by their Lordships of the Assam High Court in the case of Chandi Ram v. Jamini Kanta, AIR 1952 Assam 92 (B). Their Lordships observed:
"The first question is whether the account books relied on by the defendant in support of the Plea of repayment can be regarded as relevant. In order to be relevant, they must be kept regularly in the course of business. They must be in conformity with some known system of accounting. The books produced in this case do not fulfil these requirements. They are merely the ledgers of the defendant. They are not supported by any day book or roznamcha.
They do not contain entries of transactions as they take place. There is no daily opening or closing balance in the ledger accounts. What has been shown from these books is that there was plaintiff's account and in that account entries were made. These entries could a I have been made on any one day. These books, therefore, cannot be regarded as relevant under Section 34, Evidence Act."
Here each customer has been allotted a particular page or pages. The entries are not supported by any day book or roznamcha. There is no daily opening or closing balance in the book before us exactly, as their Lordships observed, these entries could have been made on any one day. There is no guarantee that they could not be so made. (10) Mr. Mohapatra however has placed before us a few other decisions. He has relied upon Mukhi Ram v. Kamta Prasad Balam Das AIR 1937 Pat 222 (C). There their Lordships were of the opinion that there is nothing in law to prevent the Courts from coming to a conclusion that the particular transactions are proved by the evidence of certain witnesses even though the witnesses have not stated that the evidence they give is from their own personal knowledge It is a matter entirely for the party against 'whom they have deposed.
If he does not wish to cross-examine the witness on those matters and attempt to shake their evidence in cross-examination, he and he alone must suffer. In the present case, we have absolutely no position of the like nature. There is no question whether the witnesses are speaking from their own personal knowledge or not. The pertinent question before us is whether the statements are worth being accepted and secondly, even if they are accepted in full, whether they could serve as corroborative evidence as contemplated under Section 34, Evidence Act.
Mr. Mohauatra has referred me further to a decision of their Lordships of the Allahabad High Court reported in Mt. Har Dei v. Sri Kishun AIR 1932 All 60 (D). Th3 headnote runs thus:
"Whatever particular words the plaintiff may have issued in proving the balance of account based on a bahi khata, where the sum total of his statement leaves it in doubt whether he was speaking from personal knowledge or without Personal knowledge, and the defendant fails to cross-examine him to show that he had not personal knowledge either about all or any of the words sufficient to give the plaintiff the benefit of the doubt, he should be deemed to have personal knowledge."
Exactly the same remark of mine will apply to this case. I will further observe that the principle of benefit of doubt going in favour of the plaintiff in a Civil suit is not intelligible to me, with very great respect to the learned Judges.
The other case cited by Mr. Mohapatra is reported in Suraj Prasad v. Mt. Makhna Devi, AIR 1946 All 127 (E). The relevant passage in the judgment of their Lordships is as follows ;
"It seems to us, therefore, that the learned Judge was not justified in acting upon the technical ground that the account books were no evidence to attach a liability to Mt. Makhna Devi. They could be used to corroborate the oral statement of Suraj Prasad that the payments had been, made.'' There is absolutely no dispute over the position and the case is of no assistance to me in deciding the present case.
11. The learned lower appellate Court has relied upon a quotation from the judgment of Chatterji, J in the case of Ramgobind Prasad v. Gulab Chand, AIR 1941 Pat 430 (P). The passage quoted by the learned lower appellate Court is as follows:
''What is necessary to be seen in each case is whether besides the entries in the account books there is any evidence to prove that the transactions referred to in these entries actually took place....But mere proof of correctness of the entry in the books will not be enough. There must be some evidence to corroborate these entries.
Such corroboration will be best afforded by the evidence of the person who wrote the account books and in whose presence the transactions toot place..... .If he proves the entries written by him and states that the transactions referred to in these entries actually took place in his presence or to his knowledge, that would be enough Where-however, the dispute between the parties confine to some particular items only specific evidence may be available and should be insisted upon to prove these transactions."
In my opinion, this goes against the contention of the plaintiff. Their Lordships observed that it is necessary to see in every case whether besides entries in the account books there is any evidence to prove that the transactions referred to in these entries actually took place. In the present case, as I have indicated above, apart from the fact that the plaintiff himself is the scribe who has been disbelieved by the trial Court he does not even assert that the present transaction on credit took place actually and that therefore it was so entered.
Their Lordships further emphasised that if the scribe proves the entries written by him and states that the transaction referred to in these entries actually took place in his presence or to his knowledge, that would be enough. In my opinion, this element is absent in the present case.
12. In conclusion, therefore, the appeal must succeed and is accordingly allowed. The judgment and decree of the lower appellate Court are set aside and the judgment and decree of the trial Court are restored. The defendants-appellants are entitled to their full costs throughout.