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Madhya Pradesh High Court · body

2002 DIGILAW 977 (MP)

MAHAVIR PRASAD v. VASUDEVA PRASHAD

2002-10-23

S.SAMVATSAR

body2002
S. SAMVATSAR, J. ( 1 ) THIS appeal is filed by the defendant challenging the judgment and decree dated 29. 1. 1994, passed by Second additional District Judge, Morena Camp sabalgarh in Civil Suit No. 12b/89, whereby the Court below has passed a decree for payment of Rs. 19,884/- with interest at the rate of 6% per annum and the costs. ( 2 ) THE facts of the case are that the plaintiff/respondent no. 1 filed a suit for recovery of an amount of Rs. 26,999. 85 p. alleging that the plaintiff had supplied goods (grains)amounting to Rs. 19,884. 50 p. on credit on 9/3/1985 vide bill (Ex. P/l), Ex. P/2 is the entry in the stock register, Ex. P/3 is a copy of the cash-book and Ex. P/4 is a copy of the account. According to the defendant, hence, he filed the present suit after serving a notice (Ex. P/5 ). Ex. P/7 is a copy of the acknowledgement. ( 3 ) THE defendant in his written statement denied the said transaction in toto. ( 4 ) THE trial Court relying on the copies of the account-books (Ex. P/2 to P/4) has passed a decree against the defendant holding that the said account-books were kept in the regular course of business and hence, the transaction is proved. The Court below, therefore, passed a decree for Rs. 19,884/- plus interest @ 6% p. a. Against this judgment and decree the defendant has filed the present appeal. ( 5 ) THE main contention raised by the appellant is that the plaintiff has failed to prove the said transaction and, therefore, the Court below has erred in passing the decree against the defendant. The Court below has passed the decree on the basis of the account-books. ( 6 ) SHRI. N. K. Jain, learned counsel for tha appellant, urged that the account-books are not proved. Similarly, it is not proved that the account-books were kept by the plaintiff in regular course of business. He invited my attention to the statements of the plaintiff and his witnesses. The plaintiff has examined himself as PW. 3. ( 6 ) SHRI. N. K. Jain, learned counsel for tha appellant, urged that the account-books are not proved. Similarly, it is not proved that the account-books were kept by the plaintiff in regular course of business. He invited my attention to the statements of the plaintiff and his witnesses. The plaintiff has examined himself as PW. 3. In his entire statement the plaintiff has nowhere uttered a single word that the accounts in question were kept in regular course of business and unless and until the plaintiff proves that the accounts were kept in regular course of business, no decree can be passed on the basis of said accounts. For this purpose he invited my attention to Section 34 of the Evidence Act, which reads as under :-"sec. 34. Entries in books of account when relevant.-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. " ( 7 ) SECTION 34 of the Evidence Act states that a decree can be passed on the basis of entries in the account-books, which are kept in regular course of business, but the said statement would not alone be sufficient evidence to charge with any person with the liability. ( 8 ) THE Supreme Court in the case of dadarao v. The State of Maharashtra, has laid down that the plaintiff in his oral evidence must show that the account-books were kept in regular course of business as required by section 34 of the Evidence Act. In absence of oral evidence to that effect or any other evidence to prove that the account-books were kept in regular course of business, no decree can be passed. ( 9 ) IN the present case, I find that neither the plaintiff nor any of his witnesses have stated that the account-books were kept in regular course of business. ( 10 ) MOREOVER, mere proving the fact that the account-books were kept in regular course of business is not sufficient. Section 34 of the evidence Act further requires that the entries should be corroborated by the other independent evidence. In the present case, the plaintiff has stated in para 4 of his statement that the account-books were written by his Munim sitaram. Section 34 of the evidence Act further requires that the entries should be corroborated by the other independent evidence. In the present case, the plaintiff has stated in para 4 of his statement that the account-books were written by his Munim sitaram. Thus, the plaintiff is not the scribe of the account-books. Sitaram is examined by the plaintiff as PW. 2. Sitaram in para 2 of his statement has categorically stated that he has not kept the account-books. Thus, neither the plaintiff nor his Munim Sitaram is the scribe of the account-books and thus, the scribe of the account-books is not examined and in such circumstances also no decree can be passed on the basis of the said account-books. ( 11 ) IN the case of Ramgobind Prasad and another v. Gulab Chand Sahu and others, patna High Court has held that in absence of examination of the scribe of the account-books the respondent cannot be fastened with the liability of paying the amount due shown in the account-books. ( 12 ) THE other relevant evidence which is not adduced by the plaintiff is "kachchi Rokad". The plaintiff (PW. 3) in para 6 of his cross-examination has admitted the fact that "kachchi rokad" is maintained by the plaintiff and entry is made first in the "kachi Rokad" and thereafter the said entry is recorded in other books. The plaintiff has not assigned any reason for withholding the "kachi Rokad". Moreover, the plaintiff has also stated that he has paid the sales-tax and Mandi tax on the said transaction but he has not filed any document to prove the payment of Mandi tax or sales-tax. He has admitted that every transaction taken place in Mandi is recorded in the record of Mandi. The plaintiff could have brought the said evidence to corroborate the entries in the account books but this evidence is also not produced by the plaintiff. Thus, the plaintiff has failed to prove the entries in the account-books by leading any corroborating evidence to support his case. Thus, the plaintiff has failed to lead any independent evidence to corroborate his entries in the said account-books. At the same time, he has also failed to prove that the account-books were kept in regular course of business and, therefore, the defendant cannot be fastened with the liability merely on the basis of copies of accounts filed by the plaintiff. Thus, the plaintiff has failed to lead any independent evidence to corroborate his entries in the said account-books. At the same time, he has also failed to prove that the account-books were kept in regular course of business and, therefore, the defendant cannot be fastened with the liability merely on the basis of copies of accounts filed by the plaintiff. It is pertinent to point out that the bill (Ex. P/1) is also not signed by the defendant. Hence, there is absolutely no evidence to fasten the defendant with the liability. ( 13 ) IN the result, the impugned judgment and decree cannot be sustained and is set aside. The appeal is allowed and the plaintiff's suit is dismissed. No order as to costs. Appeal allowed. .