JUDGMENT Hon'ble Mr. Justice S.C. Das 1. This appeal under Section 100 of Civil Procedure Code, 1908 was admitted to decide the following substantial question of law:- Whether the courts below committed any error of law by admitting inadmissible documents for putting liability upon the defendant-appellant. 2. The fact of the case in a short compass is that the respondent as plaintiff instituted Money Suit No. 09 of 1996 in the Court of Civil Judge, Sr. Division, Court No. 1, West Tripura, Agartala against the defendant-appellant praying for a decree of Rs. 28,383/- with interest thereon. The plaintiff-respondent, inter alia, pleaded that he was a wholesaler of India Made Foreign Liquor(IMFL), having his business at Colonel Chowmuhani, Krishnanagar, Agartala, in the name and style of 'Tripureswari Bonded Warehouse' and he used to sell the foreign liquors to different retailers both on cash and credit. Defendant-appellant was a retailer of the plaintiff and the defendant used to purchase such Indian made foreign liquor from the plaintiff from time to time both on cash and on credit and during the period from 29.01.1993 to 15.04.1993 the defendant-appellant on different dates purchased foreign liquor valued at Rs. 22,382/- and out of it only paid Rs. 2,500/- in cash on 15.04.1993 and the rest of the amount of Rs. 19,882/- was lying due to be paid by the defendant-appellant. Further the defendant appellant took a loan of Rs. 8,501/- from the plaintiff-respondent and all those transactions were entered in the books of account of the plaintiff. Later on, the defendant stopped purchase of liquor from the wholesale shop of the plaintiff and the plaintiff demanded the amount, lying due to be paid by the defendant but the defendant even after repeated demand, did not make payment, and therefore, the plaintiff issued notice to the defendant to make payment but the defendant did not respond. The plaintiff also issued notice through his advocate but the defendant remained silent and under such circumstances the plaintiff instituted the suit for decree directing the defendant to make payment of Rs. 28,383/- with interest thereon. The plaintiff also issued notice through his advocate but the defendant remained silent and under such circumstances the plaintiff instituted the suit for decree directing the defendant to make payment of Rs. 28,383/- with interest thereon. The defendant-appellant contested the case by filing written statement denying purchase of foreign liquor on credit and further stated that he was a retailer but there was no system of purchase on credit and he never purchased foreign liquor on credit for his shop from plaintiff and no loan was taken by him as claimed by the plaintiff. 3. The trial court formulated four issues, namely- (1) Whether the suit is maintainable in its present form? (2) Whether the defendant purchased foreign liquors from the plaintiff on credit and if so whether the defendant paid the price of the foreign liquors to the plaintiff? (3) Whether the defendant borrowed any amount from the plaintiff for running his business and if so whether he liquidated the loan amount to the plaintiff? (4) Whether the plaintiff is entitled to any relief and if so upto what extent? 4. In course of trial, plaintiff examined himself as PW.1 and in support of his contention relied on 8(eight) items of documents, which have been marked as Exbts., namely- Exbt.1. Permit issued by the Superintendent of Excise, dated 8.1.93 with relevant papers. Exbt.2 Permit and pass issued by the Inspector of Excise on 10-3-93. Exbt.3 Invoice issued by the plaintiff to the defendant on 27.3.93. Exbt.4 Copy of money receipt dated 16.4.93 issued in favour of the defendant. Exbt.5. Copy of ledger containing the Account of the defendant. Exbt.6. Copy of the demand Notice Exbt.7. Postal receipts. Exbt.8. Advocate's notice. 5. The defendant also examined himself as DW.1 but adduced no documentary evidence. 6. I have learned senior counsel, Mr. S.M. Chakraborty, assisted by learned counsel, Ms. P. Chakraborty for the appellant and learned senior counsel, Mr. A.K. Bhowmik, assisted by learned counsel, Mr. R. Datta for the respondent. 7. Learned Civil Judge, Sr. Division, decided issue Nos.1, 2 and 4 in favour of the plaintiff and issue No. 3 against the plaintiff and thereby decreed the suit holding that the plaintiff was entitled to get a sum of Rs. 19,882/- with interest from the defendant-appellant. 8. The defendant-appellant challenged the judgment and decree before the District Court and the learned Addl. Division, decided issue Nos.1, 2 and 4 in favour of the plaintiff and issue No. 3 against the plaintiff and thereby decreed the suit holding that the plaintiff was entitled to get a sum of Rs. 19,882/- with interest from the defendant-appellant. 8. The defendant-appellant challenged the judgment and decree before the District Court and the learned Addl. District Judge in Money Appeal No. 02/1999, dismissed the decree, hence, this second appeal is filed and admitted for decision on the substantial question of law formulated, as reproduced above. 9. It is submitted by learned senior counsel, Mr. Chakraborty that Exbt.5, the copy of the Ledger containing the accounts of the defendant is the document on the basis of which the decree was passed against the appellant and that copy of the Ledger was not admissible in evidence since it was not a "books of account" as prescribed in Section 34 of the Indian Evidence Act and it was simply loose photocopy of two sheets alleged to have a copy of the Ledger maintained by the plaintiff, neither signed nor authenticated by anybody and the trial court was absolutely wrong in admitting such a document for decision of the suit. It is also submitted by learned counsel that the appellate Court committed gross illegality in holding that the defendant since did not raise any objection in the trial court regarding admissibility of Exbt.5, he has waived his right to challenge it in the appellate Court and such finding of the first appellate Court was wrong and is liable to be interfered. In support of his contention, learned senior counsel referred the decision of this Court in the case of Dharam Chand Joshi vs. Satya Narayan Bazaz reported in AIR 1993 GAU 35 . He has further relied on the decision of the Hon'ble Apex Court in the case of Malay Kumar Ganguly vs. Sukumar Mukherjee reported in AIR 2010 SC 1162 on the ground that the document, which is otherwise inadmissible, cannot be taken as evidence only because no objection to the admissibility was taken. 10. On the other hand, appearing on behalf of the respondent, learned senior counsel, Mr. Bhowmik has submitted that Exbt.5 is corroborated by other evidence on record i.e. the permit issued by the Superintendent of Excise in the name of the defendant, which shows that the commodity was sold to the defendant. 10. On the other hand, appearing on behalf of the respondent, learned senior counsel, Mr. Bhowmik has submitted that Exbt.5 is corroborated by other evidence on record i.e. the permit issued by the Superintendent of Excise in the name of the defendant, which shows that the commodity was sold to the defendant. He has, however, admitted that no credit Memo. was issued since there was no system of issuing a credit Memo. but the exhibited documents i.e. Exbts.1 and 2 clearly supported the copy of the Ledger i.e. Exbt.5, and hence, the concurrent finding of the trial Court and the first appellate Court should not be disturbed. It is also submitted that Demand notice was issued twice by the plaintiff and his engaged learned counsel but the defendant did not respond to the notice, and under such circumstances, a presumption should be drawn against the plaintiff that he had nothing to say about the claim made by the plaintiff regarding the due amount. 11. To decide the question of law formulated, as reproduced above, I have gone through the evidence and materials on record and also have a glimpse to the relevant provisions of law. 12. Admittedly, Exbt.5 are two loose sheets of papers, photocopy of a Ledger alleged to have maintained by the plaintiff in course of his business and he relied on that Ledger, which has been marked as Exbt.5 by the trial Court in course of reexamination the plaintiff on 24.04.1999. While exhibiting the documents, in course of his reexamination, the plaintiff stated that he deposed in the suit on 17.06.1998 and on 09.11.1998 as PW.1. During his deposition, the documentary evidence filed by him in the suit was lying in the case record. The Presiding Officer told him that the said documents shall be taken into evidence as marked exhibits after his examination is over and at the time of writing of the order but due to inadvertence the same were not marked as Exbts. He identified the documents filed by Firisti dated 18.01.1996, and those were marked as Exbt.1 to Exbt.8 as per Firisti i.e. the list accompanying the documents. He further stated that most of the documents were copies of the originals maintained in his office and the originals were given to the purchasers. He did not issue money receipt without actual payment in cash in selling the articles. He further stated that most of the documents were copies of the originals maintained in his office and the originals were given to the purchasers. He did not issue money receipt without actual payment in cash in selling the articles. He has filed one money receipt, which has been marked as Exbt.4. In other cases, the cost of the goods and articles was not paid to him so he did not issue money receipt in favour of the defendant. He, therefore, prayed for a decree. The above deposition of the plaintiff makes it clear that in course of his re-examination he simply identified the documents submitted by Firisti in respect of his case and those were just marked as Exbts.1 to 8. The contents of those documents have not been proved. Mere marking of documents as exhibits does not prove the contents thereof unless those are proved before the Court according to the procedure prescribed by law. Merely because no objection was raised by the defendant the contents of the documents do not automatically become admissible in evidence. It is, therefore, evident that the plaintiff did not prove the contents of the documents including that of Exbt.5, the alleged copy of the 'books of account'. 13. It is therefore evident that no book of account was produced before the trial Court in respect of transaction made in the ordinary course of business. Section 34 of the Evidence Act prescribes thus- 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. 14. Admittedly, Exbt.5 is not the books of account maintained by the plaintiff in the ordinary course of business. It is only a photocopy of two sheets of papers, neither signed by anybody nor having with any endorsement as to who wrote it and on the basis of what primary documents. No credit Memo. produced to show that the plaintiff sold the articles on credit to the defendant. It is only a photocopy of two sheets of papers, neither signed by anybody nor having with any endorsement as to who wrote it and on the basis of what primary documents. No credit Memo. produced to show that the plaintiff sold the articles on credit to the defendant. There is no other document to show that the goods mentioned in Exbts.1 and 2 permits issued by the Excise Department were actually sold to the defendant and the defendant received delivery of those goods on credit. Under such circumstances, it is quite clear that Exbt.5 was an inadmissible document accepted by the trial Court beyond procedure prescribed by law. 15. Learned senior counsel, Mr. Bhowmik has submitted that the defendant could not show any cash Memo. in respect of the items shown in the permit issued by the Superintendent of Excise, which are marked as Exbts.1 and 2. 16. As submitted by learned counsels, every sale of foreign liquor by a wholesaler is to be approved by the Superintendent of Excise. Exbts.1 and 2 are permits allowed by the Superintendent of Excise to the wholesaler i.e. the plaintiff to sell certain quantity of foreign liquor to the defendant but there is no evidence that the defendant ultimately took delivery of those articles on credit. 17. Burden lies on the plaintiff to prove his case. Such burden cannot be shifted on the defendant irrespective of whether the case is contested or not. Section 101 of the Evidence Act prescribes thus: 101. Burden of Proof - Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence to facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 18. In view of the above provision, the argument advanced by learned counsel, Mr. Bhowmik has no substance at all. Burden absolutely lies on the plaintiff to prove his case with legal evidence. It is the plaintiff to prove that the defendant purchased India made foreign liquor from him on credit and such fact has to be proved by adducing documentary evidence. Neither any credit Memo. produced before the court nor the books of account produced. Burden absolutely lies on the plaintiff to prove his case with legal evidence. It is the plaintiff to prove that the defendant purchased India made foreign liquor from him on credit and such fact has to be proved by adducing documentary evidence. Neither any credit Memo. produced before the court nor the books of account produced. Even if the defendant remained silent, the case of the plaintiff would not prove unless the plaintiff proved his case with admissible evidence. In the case of Dharam Chand Joshi (supra) this Court has held that unbound sheets of papers are not books of account and such sheets of papers cannot be relied particularly when there are interpolations and over writings. In the case in hand, Exbt.5 are simply photocopies of two sheets of papers said to be the Ledger of the books of accounts and without production of the original, those were illegally taken into evidence by the trial Court and the decree cannot sustain on such inadmissible evidence. 19. The first appellate court dismissed the appeal on the ground that no objection was raised by the defendant when Exbt.5 was taken in evidence. Such an inference drawn by the first appellate Court is also not tenable in law. A document, which is not otherwise admissible, does not become admissible simply because the adverse party did not raise any objection. The finding of the first appellate court is contrary to the law settled by the apex Court and by this Court. 20. In the case of Malay Kumar Ganguly (supra) the apex Court has held that the document, which is otherwise inadmissible, cannot be taken an evidence only because no objection to the admissibility thereof was taken. 21. The decision of the first appellate Court in taking Exbt.5 as evidence and the decision of the first appellate Court on that point were absolutely wrong and are liable to be interfered. The judgment and decree, therefore, passed by the learned Civil Judge, Sr. Division, Agartala in TS. 09/1996 and affirmed by the learned Addl. District Judge in T.A. No. 02/1999 are set aside and quashed. The appeal is accordingly allowed but in the circumstances without costs. Send back the L.C. records along with the copy of the judgment. Appeal allowed