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2018 DIGILAW 110 (GAU)

RUPAK SHARMA v. M. G. ENTERPRISES

2018-01-23

KALYAN RAI SURANA

body2018
JUDGMENT/ORDER : Kalyan Rai Surana, J. Heard Mr. B.J. Mukherjee, the learned counsel appearing for the appellant-defendant and Mr. B.D. Deka, the learned counsel appearing for the respondents - plaintiffs. 2. By filing this appeal, the appellant-defendant has assailed the judgment and decree dated 01.07.2011, passed by the learned Civil Judge No.1, Guwahati in Money Suit No. 69/1994. 3. In brief, the case of the respondents plaintiffs in the plaint is that the respondent No.2, namely, Monica Goswami is doing business as the proprietress of the respondent No.1 firm under the name and style of M/s. M.G. Enterprises. At the relevant time, the respondents were doing business as Carrying & Forwarding Agent of Golden Tobacco Mfg. Co. In course of business, they had engaged the appellant, namely, Rupak Sarma as Manager of the Respondent No.1 firm, who was entrusted with the responsibility of managing the day-to-day affairs of the business, including responsibility to collect money and deposit the same in the bank account and maintain the daily accounts. It was pleaded that the respondent No.2 did not look into such day-to-day matters, however, her husband, namely, Sanjib Goswami looked into these matters occasionally. It was projected that on 06.02.1992, the appellant had lodged an FIR that while he was returning after collecting a sum of Rs.3,69,789/- from parties, he was intercepted on road by some miscreants, who snatched away his bag. An ejahar was lodged with the police and Panbazar P.S. Case No. 33/1992 under Section 393 IPC was registered. In course of police investigation, the police recovered the said sum of Rs.3,69,789/- was recovered from the chamber of the appellant in the office of the respondent No.1 on being led by the appellant to the said recovery and the money was seized. The police then arrested the appellant for lodging a false case. The manufacturer company was informed and on scrutiny of accounts done on 06.02.1992 and 07.02.1992, for the period from 01.01.1992 to 05.02.1992, actual cash balance should have been Rs.7,29,160.14, which though found collected by the appellant from various parties, was not deposited by him in the bank account of the manufacturer. Accordingly, on reconciliation, a statement was prepared by the representative of the manufacturer on 29.03.1992, which was signed by the appellant upon verification, and taking into account various entries, a sum of Rs.3,63,589/- was found payable by the appellant to the respondents. Accordingly, on reconciliation, a statement was prepared by the representative of the manufacturer on 29.03.1992, which was signed by the appellant upon verification, and taking into account various entries, a sum of Rs.3,63,589/- was found payable by the appellant to the respondents. Hence, the suit was filed against the appellant for recovery of the said amount with interest @ 18% amounting to Rs.8,75,137.71 with pendente lite interest @ 18% and future interest, cost, etc. 4. The appellant filed his written statement and denied the allegations about his exclusive and overall responsibility. It was denied that respondent No.2 did not look into day-to-day affairs of business and it was asserted that at the end of day, the respondent No.2 and/or her husband regularly looked into the affairs of the business and took charge of all money lying as cash in hand and no money was taken away by the appellant and that such money remained either in the business establishment or in the safe of respondent No.2 and/or her husband and keys remained with the respondent No.2. (admitted para-6 about making entry in books of accounts). It was projected that as per his FIR with the police, he had stated that out of the collected money, a sum of Rs.40,000/- kept in bag was robbed. It was also stated that some money recovered from the office drawer of the respondent cannot be said to be money recovered from the appellant as he had no domain over the money as the key to the said drawer was produced by the respondent No.2. It was denied that the appellant had misappropriated the money or committed breach of trust. It was stated that the sum of Rs.7,29,160.14, shown as cash balance was taken charge of by the respondent No.2 and the amount was lying with her and not with the appellant. The appellant only admitted taking a loan of Rs.30,000/- and did not admit that a sum of Rs.26,756/- was not entered by him in the daily transaction after collecting the amount. The appellant only admitted taking a loan of Rs.30,000/- and did not admit that a sum of Rs.26,756/- was not entered by him in the daily transaction after collecting the amount. It was stated that the entries made on 29.03.1992 was absolutely false and fabricated to implicate the appellant and his blank signed papers were used to manufacture the statement and that the appellant had no occasion to check and verify the correctness of the entries made in the statement of accounts as his signature was taken long before hand on blank letter-head by show of force and intimidation by the husband of the respondent No.2. Hence, the claim was denied. 5. On the basis of pleadings, the following issues were framed for trial 1. Whether the suit is maintainable in its present form? 2. Whether there is cause of action for the suit? 3. Whether the defendant while in employment in the plaintiff firm was entrusted with the responsibilities of managing the day to day affairs of the plaintiff firm including the collection of money on behalf of the plaintiff firm and for deposit of such amount in the bank? 4. Whether the defendant failed to deposit the amount collected by him on behalf of plaintiff firm in the bank? 5. Whether the defendant is liable to pay the claim amount to the plaintiff? 6. To what relief the plaintiff is entitled? 6. In respect of Issue No.2, it was held that there was cause of action for the suit. In respect of Issue No.1, it was held that the suit was maintainable. In respect of issue No.3, 4 and 5, the learned trial court referred to the admission made by the appellant (DW-1) in his cross examination that on 05.02.1992, he had written a statement (Ext.13), showing balance of Rs.7,42,226.14 as on 05.02.1992, which was shown as cash in hand in the Ext.14 statement, which he had checked and verified and signed as Ext.14 (1) finding it to be correct. The learned trial court took a note that although the appellant had statement in his evidence that his blank signature was taken in blank paper by threatening, but no ejahar was lodged with police. The learned trial court referred to the admission made by the DW-1 that on 29.03.1992, he was called from his shop. The learned trial court took a note that although the appellant had statement in his evidence that his blank signature was taken in blank paper by threatening, but no ejahar was lodged with police. The learned trial court referred to the admission made by the DW-1 that on 29.03.1992, he was called from his shop. Hence, it was held that the appellant was an employee under the respondent No.1 firm and wrote account as per Ext.13, and that the appellant used to collect money on behalf of the firm and vide Ext.14, he had admitted the preparation of the said statement by Rabinder Baweja and signed and verified as correct by him and the husband of the respondent No.2. It was held that the appellant had failed to rebut the Ext.14 by proving that on threat he had put his signature on Ext.14. It was held that the appellant had been entrusted and was responsible for day-to-day affair of respondent No.1 firm including collecting money and to deposit it with bank. It was held that as per Ext.14, huge amount was not deposited by the appellant with the bank. It was held that as per evidence of DW-1, Ext.13 and Ext.14, it was established that the entire amount/ balance of Rs.7,42,226.14 as on 05.02.1992 was not deposited by the appellant, which included Rs.3,69,749/- seized by the police. Hence, issues No.3, 4 and 5 were decided in the affirmative. In respect of issue No.6, it was held that the appellant was liable to the respondent No.1 form for payment of Rs.3,69,749/- and it was held that the respondents were entitled to decree as prayer for. 7. The submissions made by the learned counsel for the appellant can be summarized as follows : a. The appellant had denied the entries made in Ext.14 as false and fabricated and claimed that the document was manufactured one. Therefore, the onus was on the respondents to prove the entries with other admissible evidence. b. The respondents did not produce any books of account to substantiate any of the entries made in Ext.13 and Ext.14. Hence, Ext.13 and Ext.14, being stray sheets of paper, was not proved as entries made in the books of accounts and, as such, none of the entries made in Ext.13 and 14 can be said to have been duly proved, as such, the money decree could not have been passed. Hence, Ext.13 and Ext.14, being stray sheets of paper, was not proved as entries made in the books of accounts and, as such, none of the entries made in Ext.13 and 14 can be said to have been duly proved, as such, the money decree could not have been passed. c. The respondent No.2 (i.e. plaintiff No.2) did not enter into the witness box to give her evidence and, as such, this was a case where no evidence was tendered by the respondents. As such, the pleadings made in the plaint were not proved in accordance with law and the suit was liable to be dismissed. d. The burden of proof was on the respondents-plaintiffs and, as such, without the burden of proof being discharged, the suit was incorrectly decreed by wrongly accepting entries made in the disputed Ext.14 as an admission by the appellant. It is submitted that in the written statement, the appellant had specifically stated that the statement at Ext.14 was manufactured subsequently on his blank signed letter-head of respondent No.1 firm. e. The writer of Ext.14, namely, Rabinder Baweja was not called and examined as witness. Moreover, the transaction with Golden Tobacco Manufacturing Co. having not been proved, the entries made in Ext.14 did not prove anything. Hence, the contents of Ext.14 have not been proved. f. There was no material to establish that cash in hand mentioned in Ext.14 was cash with appellant. g. The appellant had got acquittal in the criminal case as per judgment dated 23.08.2007, passed by the learned Additional Sessions Judge (FTC) No.3, Guwahati, in Crl. Appeal No. 5/2000. Hence, there cannot be presumption of entrustment to the appellant or misappropriation of any money by the appellant. h. As per contents of his ejahar with police (Ext.2), the miscreants had snatched a sum of Rs.40,000/- kept in "jhola" (Assamese word for bag) and not the entire collection amount of Rs.3,69,749/-. Hence, the linkage of recovered and seized sum of Rs.3,69,749/- (vide Ext.3) with the appellant was wrong. i. The learned trial court had misread the pleadings and evidence and had arrived at a perverse finding. 8. Per contra, the learned counsel for the respondents has made his submissions in support of the judgment and decree. Hence, the linkage of recovered and seized sum of Rs.3,69,749/- (vide Ext.3) with the appellant was wrong. i. The learned trial court had misread the pleadings and evidence and had arrived at a perverse finding. 8. Per contra, the learned counsel for the respondents has made his submissions in support of the judgment and decree. His submissions can be also be summarized as under: a. The documents on record, viz., ejahar by Sanjib Goswami (Ext.4), signature of Sanjib Goswami on Ext.14, i.e. Ext.14 (2), name of Sanjib Goswami as complainant in charge sheet (Ext.5), as well as admission in written statement that the appellant had handed over money to Sanjib Goswami, the husband of respondent No.2, duly proved that the said person was a competent witness to depose on the basis of his personal knowledge. Moreover, there was no cross examination on the point of authority of the husband of respondent No.2 to depose on behalf of the plaintiff. b. In this case, the respondent No.2 did not examine herself and, as such, there was no legal bar for the respondents-plaintiffs to examine the concerned person i.e. husband of respondent No.2, who had lodged the ejahar and participated in signing of statement (Ext.14). The husband of the respondent No.2 was privy to all incidents which took place after the ejahar of false case alleged to have happened on 05.02.1992 was lodged by the appellant c. The allegation of obtaining signature of appellant by force and threat is a situation which requires disclosure of material particulars like date and time of receiving threat, how he had been threatened, etc. were required to be disclosed by the appellant in the written statement as per the requirement of Order VI Rule 4 CPC, which having not done, there was total absence of pleadings and the appellant cannot be said to have discharged his burden of proving use of force and threat by the husband of the respondent No.2. d. As the entries made under the signature of the appellant was sought to be disowned by the appellant, this was a case where the contents of statement (Ext.14) formed an agreement between the appellant and respondent No.1, which under the provisions of Section 19A of the Contract Act, 1872 would be voidable agreement without free consent, because such consent was obtained under force and threat. Therefore, it was incumbent on part of the appellant to file a counter-claim to get the said writing set aside or declared as voidable. That having not done, it is not open to the appellant to dispute or disown the entries made in Ext.13 and Ext.14 and, as such, the suit was otherwise liable to be decreed on admission. e. The DW-1 in his cross examination has not only admitted his signature i.e. Ext.14 (1), but has even admitted that the said Ext.14 was prepared on 29.03.1992, when he was called from his shop. Moreover, there exists an endorsement in Ext.14 to the effect that "Checked and Verified and found to be correct", which is marked as Ext.14 (3). Thus, not only the respondents had proved the signature of the appellant but also the fact that the entries contained therein was checked and verified and found to be correct. Thus, the best evidence having been proved, there was no requirement to prove supporting evidence like books of accounts, bills, vouchers, etc. to prove each and every entry made in Ext.14. Moreover, the DW-1 has specifically admitted in his cross examination that Ext.13 is the accounts written by him on 05.02.1992 on a loose sheet of paper. The closing balance on 05.02.1992 was Rs.7,29,160/- and the said cash in hand of 05.02.1992 was written in Ext.14. Later on, DW-1 admits in his cross examination that accounts at Ext.13 were written on 04.02.1992. He had further admitted that Ext.14 was written on 29.03.1992. It is also submitted that the appellant was fully aware of the contents of Ext.14 and also knew that who had written the same, as such, it is impossible that the said document was prepared on blank paper in his absence, then the appellant would not know about the date when it was written and who was the writer of the said document. f. The other overwhelming evidence was there on record and, as such, the non-examination of the respondent No.2 could not be fatal so as to non-suit the respondents. In this regard, reliance is placed on the case of Rattan Dev Vs. Pasam Devi, (2002) 7 SCC 441 . f. The other overwhelming evidence was there on record and, as such, the non-examination of the respondent No.2 could not be fatal so as to non-suit the respondents. In this regard, reliance is placed on the case of Rattan Dev Vs. Pasam Devi, (2002) 7 SCC 441 . g. On the point that when overwhelming evidence in form of Ext.13 and Ext.14 was duly proved, there was no requirement to prove books of account as corroborative evidence, reliance is placed on the case of Union of India Vs. Ibrahim Uddin, (2012) 8 SCC 148 . h. On the point that if there was no cross examination on vital facts, then the pleadings of the respondents are deemed to be accepted, reliance is placed on the case of Muddasani Venkata Narsaiah Vs. Muddasani Sarojana, AIR 2016 SC 2250 . i. On the point that civil cases can be proved by preponderance of probability and strict proof as in criminal cases was not required, reliance is placed on the case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple & Anr., (2003) 8 SCC 752 . 9. As per the submissions made by the learned counsels appearing for the parties, the following points of determination arise for decision in this appeal :- i. Whether the non examination of the respondent No.2, who was the proprietress of respondent No.1 firm would disentitle the respondents for any decree as prayer for in the plaint? ii. Whether the appellate order of acquittal vide judgment dated 23.08.2007, passed by the learned Additional Sessions Judge (FTC) No.3, Guwahati in Crl. Appeal No. 5/2000 is relevant for deciding this appeal? iii. Whether the two account statements marked as Ext.13 and Ext.14 was a sufficient proof of acknowledgement of debt by the appellant? And whether the learned trial court committed any error in decreeing the suit on the basis of the two account statements marked as Ext.13 and Ext.14? iv. Whether the accounts statement marked as Ext.14 was liable to be discarded on the ground that it was not admissible in evidence? v. Whether the judgment and decree impugned herein is sustainable? 10. And whether the learned trial court committed any error in decreeing the suit on the basis of the two account statements marked as Ext.13 and Ext.14? iv. Whether the accounts statement marked as Ext.14 was liable to be discarded on the ground that it was not admissible in evidence? v. Whether the judgment and decree impugned herein is sustainable? 10. Points of determination No. (i) : a. It is not disputed, rather, it is admitted by the appellant in his written statement as well as in the evidence-on-affidavit by the appellant that he handed over the daily accounts as well the daily cash to the appellant No.2 as well to as her husband, namely, Sanjib Goswami. It is also seen that the husband of the respondent No.2 had lodged the ejahar (Ext.4) with the concerned police station. In the statement dated 29.03.1992 (Ext.14), bears the signature of the said Sanjib Goswami [Ext.14 (2)]. The same person is the complainant as per the charge sheet (Ext.5) submitted in connection with Panbazar P.S. Case No. 36/1992 under Section 408 IPC. Hence, there is no way to hold that the husband of the respondent No.2 had personal knowledge of the transaction with regard to which he had given his evidence in the suit. Not only the connection of the husband of the respondent No.2 is disclosed in the plaint, but his association with the respondent No.1 firm and respondent No.2, his wife, who is the proprietress of the respondent No.1 firm is squarely admitted by the appellant. It is also the specific defence of the appellant in his written statement as well as in his evidence-on-affidavit that his blank signature was taken on the letter-pad of the respondent No.1 by the husband of the respondent No.2 by threat and force, which was later on converted to his account statement, showing dues payable to respondent No.1 firm. Therefore, there is nothing to hold that Sanjib Goswami (PW-1), the husband of respondent No.2 was not a competent witness to depose on the basis of his personal knowledge. Moreover, the learned Counsel for the appellant could not show that there was any cross-examination of the PW-1 on the point of his authority to depose on behalf of the plaintiff. Therefore, there is nothing to hold that Sanjib Goswami (PW-1), the husband of respondent No.2 was not a competent witness to depose on the basis of his personal knowledge. Moreover, the learned Counsel for the appellant could not show that there was any cross-examination of the PW-1 on the point of his authority to depose on behalf of the plaintiff. b. As per record, an amount of Rs.3,69,749/- was recovered and seized by the police in connection with Panbazar P.S. Case No. 33/1992 and the signature of Sanjib Goswami appears as the seizure witness No.1. As per the plaint, the cause of action for the suit, inter-alia, arose on 07.02.1992, when such money was recovered and seized. On 08.02.1992, the husband of respondent No.2, who was examined as PW-1 had lodged the ejahar before the police against the appellant. Thus, the husband of the respondent No.2 i.e. PW-1 appears to have participated in all events which had taken place since the time of recovery and seizure of money, alleged to have been stashed by the appellant. c. That as per the provisions of Section 120 of the Evidence Act, 1872, the husband or wife of any party can be said to be a competent witness in all civil suit. Under the circumstances, when the admitted pleading by the appellant in his written statement is that the husband of the respondent No.2 participated in the affairs of the firm of his wife i.e. respondent No.2, this court is of the considered opinion that as the competency of the PW-1 to depose on behalf of the respondents had not been questioned by the appellant before the learned trial court or in course of the cross-examination of PW-1, the respondent No.2 cannot be non-suited at this appellate stage. d. For the reasons as stated above, this Court finds that the ratio of the case of Rattan Dev (supra), referred to by the learned counsel for the respondent is found to be appropriately applicable in the fact situation of the present case in hand. e. Thus, in view of the discussions above, the point of determination No. (i) is answered in the negative and against the appellant by holding that the non-examination of the respondent No.2, the proprietress of respondent No.1 firm would not disentitle the respondents for reliefs as prayed for in the plaint. 11. e. Thus, in view of the discussions above, the point of determination No. (i) is answered in the negative and against the appellant by holding that the non-examination of the respondent No.2, the proprietress of respondent No.1 firm would not disentitle the respondents for reliefs as prayed for in the plaint. 11. Point of determination No. (ii) :- a. The DW-1 in his cross examination has not only admitted his signature i.e. Ext.14 (1), but has even admitted that the said Ext.14 was prepared on 29.03.1992, when he was called from his shop. Moreover, there exists an endorsement in Ext.14 to the effect that "Checked and Verified and found to be correct", which is marked as Ext.14 (3). Thus, not only the respondents had proved the signature of the appellant but also the fact that the entries contained therein was checked and verified and found to be correct. Thus, the best evidence having been proved, there was no requirement to prove supporting evidence like books of accounts, bills, vouchers, etc. to prove each and every entry made in Ext.14. Moreover, the DW-1 has specifically admitted in his cross examination that Ext.13 is the accounts written by him on 05.02.1992 on a loose sheet of paper. The closing balance on 05.02.1992 was Rs.7,29,160/- and the said cash in hand of 05.02.1992 was written in Ext.14. Later on, DW-1 admits in his cross examination that accounts at Ext.13 were written on 04.02.1992. He had further admitted that Ext.14 was written on 29.03.1992. It is also submitted that the appellant was fully aware of the contents of Ext.14 and also knew that who had written the same, as such, it is impossible that the said document was prepared on blank paper in his absence, then the appellant would not know about the date when it was written and who was the writer of the said document. b. While, the learned Counsel for the appellant contends that as the appellant had been acquitted in the criminal case, by necessary implication it must be held that the case of the respondents is false and, as such, the decree passed by the learned trial court cannot be sustainable either on facts or in law. In this regard, this Court is of the considered opinion that the judgment passed in course of a criminal proceeding cannot be the basis of the judgment in a civil suit. In this regard, this Court is of the considered opinion that the judgment passed in course of a criminal proceeding cannot be the basis of the judgment in a civil suit. In this regard, it may be referred the provisions of Section 43 of the Evidence Act, 1872 would be appropriate, which is extracted below, is required to be referred to - "43. Judgments, etc., other than those mentioned in sections 40 to 42, when relevant. - Judgments, orders and decrees, other than those mentioned in Section 40, 41 and 42, are relevant, unless the existence of such judgment, order, or decree, is a fact in issue, or is relevant under some other provisions of this Act." Thus, as the existence of the judgment dated 23.08.2007 passed by the learned Additional Sessions Judge (FTC) No.3, Guwahati in Crl. Appeal No. 5/2000 is not a fact in issue in the present suit or appeal, the said judgment cannot be said to be relevant in respect of the subject matter of this appeal. Hence, the point of determination No. (ii) is decided in the negative and against the appellant. 12. Point of determination No. (iii) :- a. It is seen that in his cross examination, the appellant (DW-1) has admitted his signature in the accounts statement i.e. Ext.14 (1). He has also admitted that the said statement (Ext.14) was prepared on 29.03.1992. He has also admitted the endorsement "Checked and Verified and found to be correct" [Ext.14 (3)]. Thus, through the evidence of the appellant (DW-1), the respondents had successfully proved the signature of the appellant, but also the endorsement written by the appellant that the entries contained therein was checked and verified and found to be correct. b. Moreover, the appellant (DW-1) has specifically admitted in his cross examination that Ext.13 was the accounts written on a loose sheet of paper by him on 05.02.1992 (later on stated to be 04.02.1992). The closing balance on 05.02.1992 was Rs.7,29,160/- and the said cash in hand of 05.02.1992 was written in Ext.14. The account statement dated 29.03.1992 (Ext.14) is written under the heading of "A/c. of Rupak Sarma with M.G. Enterprises". The closing balance on 05.02.1992 was Rs.7,29,160/- and the said cash in hand of 05.02.1992 was written in Ext.14. The account statement dated 29.03.1992 (Ext.14) is written under the heading of "A/c. of Rupak Sarma with M.G. Enterprises". c. Thus, the best evidence having been proved by the appellant, which is admitted by no other than the appellant, this Court is of the considered opinion that there was no requirement for the respondents to prove any other supporting evidence like books of accounts, bills, vouchers, etc. to prove each and every entry made in Ext.13 and Ext.14. d. The appellant has not disputed, questioned or challenged the correctness of the entries made in Ext.13 and Ext.14. e. Hence, despite the irregularity of the respondent No.2 i.e. the proprietress of respondent No.1 having not stood in the witness box, the admission by the appellant in respect of the said two account statements proved as Ext.13 and Ext.14 was a sufficient proof of acknowledgement of debt by the appellant. Thus, the point of determination No. (iii) is answered in the negative by holding that the learned trial court committed any error in decreeing the suit on the basis of the two account statements marked as Ext.13 and Ext.14. 13. Point of determination No. (iv) :- a. In view of the discussions in respect of the point of determination No. (iii) above, in the considered opinion of this Court, the accounts statement marked as Ext.14 was not liable to be discarded on the ground that it was not admissible in evidence. Accordingly, the said point is answered against the appellant. 14. Point of determination No. (v) :- a. While discussing the other points of determination, it has been held that the documents on record, viz., (i) ejahar by Sanjib Goswami (Ext.4), (ii) signature of Sanjib Goswami on Ext.14, i.e. Ext.14 (2), (iii) name of Sanjib Goswami as complainant in charge sheet (Ext.5) shows that Sanjib Goswami had actively participated in these events. Moreover, the appellant has admitted in his written statement that he had handed over money to Sanjib Goswami, the husband of respondent No.2. The cumulative effect of above is that it establishes that the husband of the appellant was handling business of the respondents, at least, as per the sequence of events in this case. Moreover, the appellant has admitted in his written statement that he had handed over money to Sanjib Goswami, the husband of respondent No.2. The cumulative effect of above is that it establishes that the husband of the appellant was handling business of the respondents, at least, as per the sequence of events in this case. Hence, there can be no denying that the said person was a competent witness to depose on the basis of his personal knowledge. Moreover, in a civil suit, the husband can be a competent witness as per Section 120 of the Evidence Act, 1872. It is worthwhile to mention here that there appears to be no cross examination on the point of authority of the husband of respondent No.2 to depose on behalf of the plaintiff. b. There is force in the submissions made by the learned Counsel for the appellant that in the plaint there is no disclosure of material particulars like date and time of receiving threat to compel or how the appellant had been threatened by the husband of the respondent No.2 to give his blank signature, on which appellant claims that Ext.14 was subsequently prepared. The disclosure of such material facts is required as a rule of pleading under Order VI Rule 4 CPC, the appellant has not been able to disprove the writings contained in the accounts statement at Ext.13 and Ext.14. c. This Court also finds force in the submissions made by the learned counsel for the respondents that as the appellant did not make any endeavour to get the two accounts statement i.e. Ext.13 and Ext.14 set aside or declared as void/voidable, and as the said documents having not been disproved, it is not open to the appellant to dispute or disown the entries made in Ext.13 and Ext.14. Hence, as the other overwhelming evidence was there on record, in the present case in hand, the non-examination of the respondent No.2 cannot be held to be fatal so as to non-suit the respondents at this appellate stage. The ratio in this regard is found to be settled in the case of Rattan Dev (supra). Hence, as the other overwhelming evidence was there on record, in the present case in hand, the non-examination of the respondent No.2 cannot be held to be fatal so as to non-suit the respondents at this appellate stage. The ratio in this regard is found to be settled in the case of Rattan Dev (supra). Moreover, as it is found that the appellant has himself proved the accounts statement marked as Ext.13 and Ext.14, as per the ratio laid down in the case of Ibrahim Uddin (supra), there was no requirement to prove books of account as other corroborative evidence. d. Hence, in view of above, this court is of the considered opinion that the respondents were entitled to the decree as prayed for. The point of determination No. (v) is answered in the negative and against the appellant. 15. In view of the discussions above, there appears to be no infirmity in the decision of the learned court below on all the issues framed for trial and in decreeing the suit. Accordingly, this appeal fails. The impugned judgment and decree dated 01.07.2011, passed by the learned Civil Judge No.1, Guwahati in Money Suit No. 69/1994 for a sum of Rs.3,63,589/- with interest @ 6% from date of filing of the suit i.e. 29.04.1994 till realization stands affirmed. This appeal stands dismissed with cost. 16. Let a decree be prepared accordingly. 17. Send back the LCR.