Kerala High Court
K.N.Manilal vs E.F.Johnson on 13 December, 2010
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 349 of 1997()
1. K.N.MANILAL
... Petitioner
Vs
1. E.F.JOHNSON
... Respondent
For Petitioner :SRI.K.RAMACHANDRAN
For Respondent :SRI.P.B.KRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :13/12/2010
O R D E R
"C.R."
THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ.
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AS No.349 of 1997-E
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Dated 13th December 2010 Judgment Bhavadasan, J.
The plaintiff extended a loan for a sum of Rs.1,20,000/- to the defendant. The defendant was running a ration shop. According to the plaintiff, the loan had to be repaid with 18% interest. The amount was given by way of a cheque on 03.06.1991 and it was encashed by the defendant. Towards the end of 1992, the plaintiff fell into financial stringencies and demanded the amount back from the defendant. Notice issued to the defendant invoked a reply, containing false statements. Since the defendant had not repaid the amount, the suit was laid.
2. The suit was resisted by the defendant, who admitted receipt of the loan amount. According to him, he had repaid the entire principal amount by 19.03.1992. The repayment was in part payments and since the relationship between the plaintiff and defendant was so cordial, the defendant had not insisted for vouchers or receipts from the plaintiff towards the repayments so made. The statements in the reply notice are true. On the basis of these contentions, he prayed for a dismissal of the suit. AS No.349/97 2
3. On the above pleadings, necessary issues were framed by the court below. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 and A2 from the side of the plaintiff. The defendants examined DWs 1 and 2 and had Exts.B1 to B3 marked (the appendix shows only Exts.B1 and B2, but a perusal of the records shows that Ext.B3 has also been marked).
4. On an evaluation of the evidence before it, the trial court accepted the plea of the defendant that the principal amount had been discharged, but granted the plaintiff a decree with regard to the interest due to him. Dissatisfied, the plaintiff comes up in appeal.
5. The learned counsel for the appellant pointed out that the court below has erred in law in placing reliance on Ext.B1, which is the day-book kept by the defendant to uphold the plea of discharge. Even assuming it is a book of accounts kept in the regular course of business, that by itself, is insufficient to discharge the burden of proof cast on the defendant, as his plea is one of discharge. No evidence other than Ext.B1 was adduced by the defendant. The learned counsel also stressed on the inconsistencies in the oral testimony of DWs 1 and 2 and pointed out that those inconsistencies have not been taken note of by the court below. According to the learned counsel, it is rather inconceivable that the defendant would not have taken some documents from the plaintiff to AS No.349/97 3 ensure that the repayments said to have been made by him were duly recorded. Ext.B1 is a self-serving document and it cannot be the sole basis to negative the claim of the plaintiff. In support of the above contention, the learned counsel for the appellant relied on the decision in Chandradhar v. Gauhati Bank (AIR 1967 SC 1058), Shambhu Bhat v. Karnataka Vyavasaya Varthaka Sangha Ltd. (1987(1) KLT 768) and Central Bureau of Investigation v. V.C.Shukla (AIR 1998 SC 1406).
6. The learned counsel appearing for the respondent, on the other hand, pointed out that it is not correct to say that the decision against the plaintiff was based, solely on Ext.B1 document. There was the evidence of DWs 1 and 2 and also Exts.B1 to B3. The entries in Ext.B1 would clearly show that the principal amount had been repaid. The payments made on various dates have been recorded in Ext.B1 and that has been inspected by the statutory authority. The accounts so made have been audited by DW2. These items of evidence, taken along with Ext.B1 had convinced the court below that the contention put forward by the defendant is probable. According to the learned counsel, the trial court, after having perused the documents, had come to a conclusion that the defendant's case is more probable. It could not be said that the view taken by the trial AS No.349/97 4 court was totally wrong or perverse. Even assuming a different view is possible, it may not be appropriate for the appellate court to interfere with the judgment and decree of the court below.
7. The main contention taken before this court is that the decision rendered by the court below was solely based on Ext.B1 day book. That becomes admissible in evidence going by Section 34 of the Indian Evidence Act (hereinafter referred to as "the Act"), which reads as follows :
"34. Entries in books of account including those maintained in an electronic form when relevant - Entries in books of accounts including those maintained in an electronic form regularly kept in the course of business, are relevant whenever they refer to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability."
The section itself says that the statements falling under S.34 of the Act by themselves cannot be the sole basis for casting liability on a person. In the decision reported in Chandradhar v. Gauhati Bank (supra), it was held as follows :
"No person can be charged with liability merely on the basis of entries in books of accounts even where such books of accounts are kept in the regular course of business. There has to be further evidence to prove payment of the money which may appear in the books of accounts in order that a person may be charged with liability thereunder, except where the person to be charged accepts the correctness of the books of account and does not challenge them."AS No.349/97 5
In the decision reported in Shambhu Bhat v. Karnataka Vyavasaya Varthaka Sangha Ltd. (supra), it was held as follows :
"The finishing words of S.34 'shall not alone be sufficient evidence to charge any person with liability' certainly indicate that the evidence of the entries in books of accounts, though are relevant, cannot be treated as independent and substantial evidence. The evidentiary value of the entires in the account books must, therefore be corroborative, supportive or confirmatory in nature. This section evidently makes an exemption to the doctrine that 'a man cannot make evidence for himself'. To attract this section, it has to be proved that the accounts are written in a book and that book must be a book of accounts and that accounts must be one regularly kept in the course of business. To say that the accounts are regularly kept in the course of business, it requires that the accounts are kept according to a set of rules or a system."
Going by the provisions contained in S.34 of the Evidence Act and the principles laid down in the aforesaid decisions, the books of accounts kept in the regular course of business are relevant. But, that statement, by itself, does not form substantive evidence. It needs corroboration. The section is clear to the effect that a person cannot obtain a decree by merely proving the existence of certain entries in the books of accounts kept in the regular course of his business. He will have to adduce independent evidence to show that the entires are genuine. Since an entry in the accounts book is an admission by the maker himself in his own favour, it can be accepted as evidence only if it has strictly complied with the requirements contained in AS No.349/97 6 Section 34 of the Act. The words 'books of accounts', 'business' and 'regularly' occurring in Section 34 of the Act came up for consideration in the decision reported in Central Bureau of Investigation v. V.C.Shukla (supra). It is not necessary to refer to those aspects in detail for they are not very relevant for the present purpose.
8. As to what would amount to independent evidence sufficient to corroborate a document falling under Section 34 of the Act, depends upon the facts and circumstances of each case. What is to be looked into is whether there is any other evidence except the entires in the books of accounts so produced, to justify the claim made by the person concerned or in other words, to show that the entry is true and correct. It cannot be disputed that the oral testimony of the person concerned and his witnesses which supports the document relevant under Section 34 of the Act, can be taken as a corroborative evidence. We have to mention that the court will be justified in assessing the broad probabilities of the case also.
9. It is true that the burden is on the defendant in the case on hand, to prove the plea of discharge. He has produced Ext.B1 document which is a day book kept in his regular course of business. It is seen verified by the statutory authority, namely, the AS No.349/97 7 Sales Tax Officer. DW2 says that he had audited the accounts of the defendant for the period 01.04.1991 till 31.03.1992. Ext.B3 is the audit report and the balance sheet. He asserts that the accounts were prepared after perusing the ledger and other books available with the defendant. Of course, he says that he had not seen any vouchers available with the defendant. On the other hand, DW1, in his evidence has stated that there are vouchers to evidence the payments stated to have been made by the plaintiff. He would also say that there are other documents to evidence the same. It is this aspect which is highlighted by the appellant to show that the claim made by the defendant is not true. If, as a matter of fact, the defendant's claim is true, he should have produced those documents which would have established that his contention is correct. Therefore, an adverse inference should have been drawn against him, it is contended.
10. Though the argument may look attractive, it is without any force. A perusal of Ext.B1 prima facie shows that it is kept in the regular course of business. The entry regarding the receipt of amount from the plaintiff is seen mentioned in Ext.B1. The payments made on various dates as mentioned in the trial court judgment are seen reflected in Ext.B1. It does not appear that it is a cooked up book for the purpose of the case. The first of the AS No.349/97 8 repayment entry is dated 18.09.1991. Even going by the plaint, the first demand for the amount comes only in 1992. It is too much to believe that anticipating a demand in 1992, the defendant would have made false entries in Ext.B1 from September 1991 onwards. Further, the day-book has been verified by a statutory authority and the accounts have been audited also. Ext.B3, the audit report indicates that payments have been made by the defendant to the plaintiff. There is no reason to disbelieve the version of DW2 and the statement produced by him.
11. It is not as if that the defendant relies solely on Ext.B1. He has given the oral evidence and has also examined DW2 to show that he had repaid the amount. There is nothing in the evidence of DW2 to doubt the statements made by him. Taken along with Ext.B3 document, if the court below thought in all probability, the case put forward by the defendant is more probable, it could not be said that the court below was wrong in law or on facts. It is a plausible view and that view cannot be said to be perverse or unwarranted or unjustified, going by the evidence on record. If that be so, interference by the appellate court is not called for. AS No.349/97 9
The result is that this appeal is without merits and it is liable to be dismissed. We do so with costs to the respondent.
THOTTATHIL.B.RADHAKRISHNAN, JUDGE P.BHAVADASAN, JUDGE sta AS No.349/97 10