Kunjamnia v. Govinda Kurukkal — 1959 DIGILAW 334 (KER)

Judgment :- 1. The plaintiff is the appellant. The suit was for recovery of a sum of Rs. 508-9-6 being the balance due under Ext. A pro-note executed by the defendant in the plaintiff's favour and Rs. 383/13/9 the balance due as per accounts. The pro-note was executed on 9-2-1123 for Rs. 1550/-. Towards the pro-note an amount of Rs. 200/- was paid on 29-12-1124, Rs. 120/- on 4-3-1125 and Rs. 1000/- on 25-5-1125 and these payments have been endorsed on the promissory note by the defendant. Towards the amount due as per accounts Rs. 100/- was paid on 13-11-1125, Rs. 25/- on 25-2-1126 and Rs. 50/- on 4-11-1126. These amounts were given credit to in the plaintiff's accounts and Rs. 383-13-9 represented the balance due. The defendant admitted the execution of the pro-note, but denied that he had any other dealings with the plaintiff. According to him the three payments of Rs. 100/-, Rs. 25/- and Rs. 50/- alleged to have been credited in the accounts were also paid in discharge of the pro-note, but the necessary endorsements were not made in the pro-note as the pro-note was not available with the plaintiff when those amounts were paid and he agreed to have it credited later when the transaction was closed. Besides these amounts according to the defendant another sum of Rs. 200/- was also paid towards the pro-note by his brother-in-law Chinnappa Menon on his behalf as per Ext. IV cheque issued by Chinnappa Menon on the Cochin Nayar Bank. According to the plaintiff Ext. IV cheque which was payable to "self" was handed over to him by Chinnappa Menon because the latter wanted some money urgently and 29-1-1950 happened to be a Sunday. As the plaintiff had no money with him he took the amount from Pw. 2 and paid the same to Chinnappa Menon and two or three days later when the cheque was cashed the amount was returned to Pw. 2. As such the cheque had nothing to do with the dealings between him and the defendant. 2. The plaintiff produced his accounts for 1123 to 1126 both journal and ledger in support of the case that the defendant had pattuvaravu dealings with him and that the sum of Rs. 383/13/9 was the balance due from the defendant on that account. As such the cheque had nothing to do with the dealings between him and the defendant. 2. The plaintiff produced his accounts for 1123 to 1126 both journal and ledger in support of the case that the defendant had pattuvaravu dealings with him and that the sum of Rs. 383/13/9 was the balance due from the defendant on that account. He also examined three witnesses besides himself to prove that the defendant had dealings with him during the relevant period. To substantiate his case regarding Ext. IV cheque for Rs. 200/- given by Chinnappa Menon, the plaintiff has examined Pw. 2 who gave evidence that he advanced the amount to be paid to Chinnappa Menon and that the amount was returned to him by the plaintiff two or three days hence. Chinnappa Menon was also cited as a witness in the plaintiffs's list, but as he was not available an affidavit was obtained from the witness to prove the circumstances under which he came to give the cheque to the plaintiff. However this part of the plaintiff's case was not accepted by the trial court. The plaintiff's accounts as well as the oral evidence adduced by him to support his case that the defendant had pattuvaravu dealings with him were accepted by the trial court and a decree was given for the amount claimed in the plaint less the sum of Rs. 200/- covered by Ext. IV. In appeal the learned Subordinate Judge held that the plaintiff's accounts were not acceptable as they were not properly maintained and the oral evidence adduced by the plaintiff was artificial and interested. He therefore dismissed the suit except to the extent of Rs. 49/12 admitted by the defendant to be due under the pro-note. The plaintiff has now come up in appeal against the decree to the extent that it went against him. 3. The only point arising for determination in this appeal is whether the plaintiff's case that the defendant had pattuvaravu dealings with him is true and whether the amount decreed to him by the trial court on that account is due to him. The plaintiff is a gold merchant. He produced Exts. F series, journals kept by him for the years 1120 to 1126 and Exts. C to E the corresponding ledgers. The plaintiff is a gold merchant. He produced Exts. F series, journals kept by him for the years 1120 to 1126 and Exts. C to E the corresponding ledgers. He has given evidence that all the entries in the accounts were made by him, that the accounts were regularly written and maintained and that they contain a correct account of the dealings he had with his customers including the defendant. He has also given evidence that the amounts paid from time to time to the defendant as well as the amounts repaid by the defendant are correctly entered in the accounts. No doubt there are some defects noted in maintaining the accounts. The amounts advanced by the plaintiff from time to time in his business are not entered in the accounts with the result that in some cases the debit side appears to be in excess of credit side. There are also some instances where the entries in the ledger are not entered in the journal. In spite of these defects in maintaining the accounts which seem to be due to the inexperience of the plaintiff the trial court found that the accounts are correct and genuine. However the learned judge relied upon some of these defects to come to the conclusion that the accounts are not accurately kept and do not represent the true state of affairs. The learned judge appears to have given undue importance to the mistakes committed by the plaintiff who wrote the accounts. The words "regularly kept" do not necessarily mean kept in a technically correct manner. No particular set of rules or system of keeping accounts is prescribed under S.34 of the Evidence Act Even the roughest memoranda of accounts kept by petty shop-keepers ace admissible if they are authentic. The crucial question for consideration is whether the entries are honest or whether there are any conscious attempts at falsification. Account books will be discredited if some of the entries therein are proved to be bogus by independent evidence which precludes the possibility of error or accident. It was not even suggested to the plaintiff that a single entry in his accounts running for a period of five years is false or bogus. The only entry about which he was questioned is regarding the correction of a mistake in entering a debit entry as a credit entry. It was not even suggested to the plaintiff that a single entry in his accounts running for a period of five years is false or bogus. The only entry about which he was questioned is regarding the correction of a mistake in entering a debit entry as a credit entry. Another defect pointed out by the learned Subordinate Judge regarding the accounts is the failure to credit Rs. 200/- found by the trial court to have been paid to the plaintiff under Ext. IV cheque. As mentioned already the plaintiff's case was that Ext. IV cheque had nothing to do with the plaint transaction and he adduced some evidence in support of it but his plea came to be repelled mainly on the ground that he failed to examine Chinnappa Menon who is seen to have been not available. The first summons on Chinnappa Menon was returned unserved because he was then in Bombay. When he returned home for Onam vacation fresh summons was issued. This too was unserved as he had gone to Palayamkottai. Then Chinnappa Menon's affidavit was produced in which he supported the plaintiff's case in full. Under the circumstances the adverse inference drawn by the learned Sub-Judge is not justifiable. It was further pointed out with reference to the accounts that on several days when money is seen to have been advanced to the defendant no money was available to be so paid. It is seen from the accounts that paltry amounts of Re. 1/-, Rs 1/8/-, Rs. 2/-, Rs. 4/-, Rs. 10/- were advanced from time to time and it was only on a few occasions that any considerable amount was paid in a lump. The plaintiff was not asked how he came by those amounts and if he was asked it is sure that he could have easily explained it. He is a gold merchant and it is not difficult to imagine that he could have had funds other than those covered by the accounts. Moreover as already mentioned the failure to enter the several amounts included by the plaintiff in the accounts must have been responsible for the debit side appearing to be in excess of the credit side in the books. Moreover as already mentioned the failure to enter the several amounts included by the plaintiff in the accounts must have been responsible for the debit side appearing to be in excess of the credit side in the books. The various mistakes that are referred to by the appellate court to discredit the plaintiff's accounts are the surest indication that the entries were made from time to time and that there was no attempt to fabricate the accounts or write them up at one stretch. In Ext. F journal for 1122 and 1123 at p. 109 there is the seal of the Income Tax and Sales Tax Officer and the Officer's initials with the date 20-3-1123. There is also a simil sealar at p. 197 after the last entry in the accounts. Again in Ext. F2 journal for 1125 and 1126 at p. 21 after the last entry for the year 1125 the Sales Tax Officer has made certain notes in pencil and put his initials with the date 16-2-1951. Thus the accounts from 1123 were produced before the Income Tax and Sales-Tax authorities before the controversy between the parties arose. The plaintiff as Pw.1 has given evidence that the seals were affixed and the entries were made by the officers concerned and his evidence in that respect has not been challenged in cross-examination. Therefore the learned Subordinate Judge was not right in brushing aside these entries on the ground that the person who affixed the seals and made the entries were not examined. I agree with the learned Munsiff in finding that the accounts though they were not scientifically maintained were regularly kept in the course of business and that the entries made therein are genuine and were made by plaintiff himself who had personal knowledge of the dealings. The oral evidence of Pws. 3 to 5 who are traders carrying on their business either in other rooms of the building where the plaintiff is running his shop or in the immediate neighbourhood of it that they witnessed the dealings between the defendant and the plaintiff during the relevant period also supports the plaintiff's case. The conduct of the defendant in not replying to Ext.1 notice issued by the plaintiff on 20-3-1125 where he made a specific demand for the amounts due to him under the pro-note and also as per accounts, is also significant. The conduct of the defendant in not replying to Ext.1 notice issued by the plaintiff on 20-3-1125 where he made a specific demand for the amounts due to him under the pro-note and also as per accounts, is also significant. The explanation offered by the defendant for not repudiating the claim is not satisfactory. The defendant appears to be a man well acquainted with courts and litigation and it is unlikely that he would not have promptly repudiated the claim made in the notice for the balance due on accounts if as a matter of fact there were no dealings apart from the pro-note between them. It is still more improbable that he would have made the subsequent payments of Rs. 100/-, Rs. 25/- and Rs. 50/- without getting them endorsed on the note. The explanation by the defendant that the necessary endorsement could not be made on all the three occasions because the payments were made either in the shop or on the road when the pro-note was not available is too puerile to be accepted. The plaintiff swears that there were pattuvaravu dealings between him and the defendant from the year 1119 and that the pro-note was executed for the balance found due on that date. The defendant admits that there were such dealings, but according to him all the amounts were received as per pro-note and there were no pattuvaravu dealings as such. He has not been able to produce any one of those pro-notes which he is alleged to have got back on repayment of the amounts. Evidently such a stand is taken with a view to support his contention that there were no pattuvaravu dealings subsequent to the execution of the pro-note. Whatever may be the nature of the dealings between the parties it is admitted that there were dealings between them from the year 1119 and that they were friendly, with each other. On one occasion the plaintiff went to the extent of obliging the defendant by standing surety for him. Hence it is not likely that the plaintiff would bring forward a false claim for a paltry sum of Rs. 383-13-9 an 1 go to the extent of fabricating accounts for a period of four for five years to substantiate the false claim. 4. Hence it is not likely that the plaintiff would bring forward a false claim for a paltry sum of Rs. 383-13-9 an 1 go to the extent of fabricating accounts for a period of four for five years to substantiate the false claim. 4. I have no hesitation in confirming the finding of the learned Munsiff that the defendant had pattuvaravu dealings with the plaintiff subsequent to the execution of the pro-note and that Rs. 719-8-10 is due from him to the plaintiff on account of the pro-note and patturavaravu dealings. 5. In the result the decree of the Subordinate Judge is reversed and the decree passed by the learned Munsiff is restored. Parties will pay and receive proportionate costs in all the three courts. Allowed.