ALUMAL TAHELRAM Vs. MEHTHRAM BASARMAL

JUDGEMENT

(1.) Mr. Nanavati the learned Advocate for the appellants contends that the decree has been passed merely on the basis of the entries in the account books maintained by the applicant firm and that much evidence is not sufficient to pass a decree against them having regard to the provisions contained in sec. 34 of the Indian Evidence Act. According to him some other evidence is essential in respect of the transactions in dispute before they can be made liable for the claim in question. Sec. 34 of the Indian Evidence Act provides that entries in books of account 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 illustration there below is as under:- A sues B for Rs. 1 0 and shows entries in his account books showing B to be indebted to him to this amount. The entries are relevant but are not sufficient without other evidence to prove the debt.

(2.) Now it is clear and over which there is no point raised that there existed mutual dealings between the parties and mutual current and open account was continuing between the parties prior to August 1947. Besides the books of account of the applicant firm were regularly kept during the course of their business and they are therefore relevant for the purpose of this inquiry. What is therefore essential is to find out the nature and extent of other evidence required in cases of this character so as to accept that evidence for holding the opponent firm liable for the amount due thereunder. For that purpose I may refer to some decisions referred to by Mr. Oza the learned Advocate for the respondent. The first case is of Rampyarabai v. Balaji Shridhar VI Bom. L.R. 1904 at page 50 where it has been laid down that entries from books of account are relevant under sec. 34 of the Evidence Act but are not by themselves sufficient to charge any person with liability-corroboration is required. This decision however was sought to be made use of by Mr. Oza for advancing an argument that they are also relevant under sec. 32 sub-sec. 2 of the Indian Evidence Act and when that is so no corroboration is necessary. Now sec. 32(2) says that the statements of relevant facts made by any persons who is either dead or who cannot be found or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court reasonable are relevant. According to him therefore the statements in those entries regarding the two disputed transactions can be taken as reliable piece of evidence and corroboration is not at all necessary. For that an attempt was made to suggest that two of the partners of the plaintiff-firm are dead and one other person who was writing accounts has been out of India and that way cannot be procured without an amount of delay or expenses. That argument has hardly any basis for the simple reason that the two entries in question one in respect of 8 sum of Rs. 10 923 with regard to the gunny bags (Bardans) and the other in respect of a sum of Rs. 9 489 in respect of 283 bags of Gavar were not in the handwriting of any such persons who are either dead or in the hand of a person who had gone outside India. The first entry Exh. 160 was in the hand of one Rupchand the other partner of the firm. He is alive and has been living at Bombay. The other entry is in the handwriting of one Ramchand the Mahetaji i.e. the clerk of the plaintiff-firm. He is not shown to be dead Nor is he a person who cannot be had without an amount of delay or expense. Besides there is no evidence to show that any of these two partners who are dead or one account clerk who is out of India had entered into these transactions as such and or dictated those entries to the writer thereof. Thus sec. 32 sub-sec. 2 of the Indian Evidence Act can hardly avail to the learned Advocate for the appellant in saying that whatever has been mentioned in the entries should be taken as a piece of evidence and can well be acted upon having regard to the decision of Rampyarabai v. Balaji Shridhar (supra) just referred to here above. While therefore the principle laid down in that case that where accounts are relevant also under sec. 32(2) they are in law sufficient evidence in themselves and the law does not as in the case of accounts admissible only under sec. 34 require corroboration. The entries in accounts may in the same suit be relevant under both sections and in that case rule of corroboration does not apply. Later on in the course of the judgment there are some observations which show that though the accounts which are relevant under sec 32(2) do not as a matter of law require corroboration the Judge is not bound to believe them without corroboration; that is a matter on which he must exercise his own judicial discretion as a Judge of fact. As I said above sec. 32(2) of the Act which was sought to be invoked by Mr. Oza has no application whatever to the present case and we have therefore to go on the basis that corroboration in respect of the entries in question is necessary they being relevant under sec. 34 only.

(3.) Therefore we have to consider the nature and extent of evidence by way of corroboration that the Court would expect to have on record before acting upon such entries in any such case. One thing is clear that sec. 34 does not require or limit in any manner as to what type of material is essential-as corroboration to the statements made in books of account. Besides what is necessary is that the entries and the statements in such books of account must-on reasonable consideration inspire the confidence to the Court that they must be true. In a case of Kallu Mal Dhakkan Lal v. Bhawani Das Rekhab Das A.I.R. 1925 Allahabad 742 it was held that sec. 34 does not limit in any way at all the nature of the material upon which the Court may rely to support the statements in the books of account Such material may take the shape of contemporary vouchers receipts or other documentary evidence In that case the Learned District Judge had not referred to any specific oral evidence given in the case but he had referred in detail many of the circumstances surrounding the transactions between the plaintiff and the defendants and circumstances surrounding the existence of account books and from all the circumstances he accepted the genuineness of the account books. Then the Division Bench of the High Court has observed that there is nothing in sec. 34 to limit or define the material which the Court may rely upon as corroborating the account books and that the District Judge was justified in law in relying upon these account books. In a case of Mukhi Ram v. Firm Kamta Prasad Balam Das A.I.R. 1937 Patna at page 222 it is observed 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 if it otherwise stood unchallenged for the purpose of corroborating the evidence contained in the entries from the account books. In the case of Firm Jodha Mal Budhu Mal v. Ditta and others A.I.R. 1925 Lahore 242 it has been observed that plaintiffs own oath in support of entries can be sufficient to support the entries in plaintiffs account books to fix the defendant with liability. One other case which I would like to refer to is of Ramgobind Prasad and another v. Gulab Chand Sahu and others A.I.R. 1941 Patna 430. There it has been observed that what would amount to independent evidence sufficient to corroborate the entries in the account books depends upon the facts of each case and particularly on the issues between the parties. Then it has been observed that 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 those entries actually took place. Where the transactions sued upon are numerous and extend over some length of time the genuinenss of the account books it regularly kept in the course of business will be the determining factor. But mere proof of the correctness of the entries in the account books is not enough. They must be corroborated by some evidence. Such corroboration is best afforded by the evidence of the person who wrote the account books and in whose presence the transactions took place. He need not prove each and every particular transaction If he proves the entries written by him and states that the transactions referred of in those entries actually took place in his presence or to his knowledge the effect will substantially be the same.