Bajrang Textile (M/s.) vs Fagulal

N.K. Agarwal, J.

Legality and propriety of the judgment and decree dated 19.01.2004 passed by the First Additional District Judge, Raigarh, in Civil Appeal no. 3-B/02, is under assail in this revision.

Facts of the case, in brief, are that the plaintiff is proprietor of the firm M/s Bajrang Textiles dealing in business of cloths. The defendant is his customer used to purchase cloths from his shop. On 30-04-1997, he purchased cloth valued at Rs. 5640/- on credit but did not pay the same despite demand notice, and therefore, the plaintiff filed the instant suit for recovery of Rs. 7500/-i.e 5640/= (principal amount) + 1,860/- (interest). The defendant denied the allegations as contained in the plaint and submitted that he never purchased cloths on credit at any point of time, the suit is misconceived and deserves to be dismissed. The plaintiff produced copy of credit memo, Rokad and Khata and also examined himself and one other witness. The defendant also examined two witnesses including himself. Learned trial Court placing its reliance upon the account books and credit memo produced by the plaintiff, decreed the suit. In an appeal preferred by the defendant, the judgment and decree by the trial Court was set aside and the suit was dismissed, hence this revision.

Shri Sunil Sahu, learned counsel for the plaintiff submit that learned appellate Court had wrongly disbelieved the account books and the witness examined by the plaintiff and had wrongly dismissed the suit.

I have gone through the entire evidence led by the plaintiff. The plaintiff in his statement had nowhere stated that the account books which he produced were kept in regular course of business; did not submit the books of accounts/credit memo showing previous credit transactions with the defendant; the trial Court passed the decree placing its reliance upon the books of account produced by the plaintiff; whereas the appellate Court after discussing the documents and the evidence adduced in its entirety disbelieved the credit transaction as, as per it the plaintiff failed to produce the books of account relating to past credit transaction and also disbelieved PW2 Shivshankar, examined by the plaintiff. What the plaintiff has produced is a copy of Khata containing a single entry showing purchase by the defendant and showing debit balance of Rs. 5,640/-. It is not a book showing detail of transactions between both the parties. In the same way, only a single credit memo has been filed which does not contain signature of the defendant. A copy of Rokad has also been produced showing single transaction between the parties.

Section 34 of the Evidence Act, 1872, reads as under:-

Entries in books of accounts 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 statement shall not alone be sufficient evidence to charge any person with liability.

It is manifest from Section 34 of the Evidence Act that while its first part speaks of relevancy of entry as evidence, the second part speaks in a negative way and of its evidentiary value for charging a person with liability. To make an entry relevant thereunder, it must be shown that it has been made in book, that book is a book of account and that book of account has been regularly kept in the course of business. Even if the above requirements are fulfilled and the entry becomes admissible as relevant evidence, still, the statement made therein shall not alone be sufficient evidence to charge any person with liability. Therefore, it will be necessary to first ascertain whether the entries in the document in the present case fulfill the requirement of above section so as to be admissible in evidence, meaning thereby the accounts were regularly kept in the course of business or not.

In the instant case, as referred hereinabove, the plaintiff did not utter a single word in his deposition whether or not the books have been regularly kept in the course of business and the entries therein are correct which is a pre-requirement to make an entry relevant and admissible.

Rationale behind admissibility of parties'' books of account as evidence is that the regularity of habit, the difficulty of falsification and the fair certainty of ultimate detection give them in a sufficient degree a probability of trustworthiness. Therefor, without proving the fact that such books of accounts are kept in regular course of business by examining trustworthy witness in this behalf, the entries cannot be said to be relevant or admissible u/s 34 of the Evidence Act.

Since ah element of self-interest and partisanship of entrant to make a person- behind whose back and without whose knowledge the entry is made -liable cannot be ruled out. Therefore, the additional safeguard of insistence upon other independent evidence to fasten him with such liability, has been provided for in Section 34 by incorporating the words " Such statements shall not alone be sufficient to charge any person with liability" It is not enough merely to prove that the books have been regularly kept in the course of business and the entries therein are correct. It is further incumbent upon the person relying upon those entries to prove that they were in accordance with facts. Such entries though relevant were only corroborative evidence and it is to be shown further by some independent evidence that the entries represent honest and real transactions to charge defendant with the liability. The plaintiff also failed in this respect. The other witness examined by plaintiff P.W.2 Shivshankar could not be able to substantiate the transaction and his testimony cannot be said to be trustworthy so as to charge the defendant with liability on the strength of entries in the books of account. Therefore, the plaintiff had failed to prove his case in both the way i.e failed to prove that books of accounts were kept in regular course of business and also failed to corroborate the same by examining independent, clinching, cogent and trustworthy witness.

For the foregoing reasons the appellate Court has rightly dismissed the suit of the plaintiff/applicant. The plaintiff/applicant failed to point out any jurisdictional illegality/material irregularity committed by the Court below.

The revision is liable to be dismissed and is hereby dismissed.