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TMI Blog1918 (11) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ying in sums of money from time to time never asked for any receipt or voucher for them. According to the case of the plaintiff the defendant drew sums of money daring the last 5 or 6 years on different dates; on some occasions he sent round chits to the plaintiff on which payments were made, but on the majority of occasions, payments were made on the defendant's personal request, there being no chits from the defendant authorising those payments. The learned Subordinate Judge has given a decree to the plaintiff as asked for in the plaint. The evidence in the case consists mainly of entries in the plaintiff's books of account. The defendant has not produced any accounts whatever, and the suggestion of the plaintiff is that he has accounts but has wilfully withheld them. The defendant denies that he has accounts but, he says, with reference to about 29 or 30 out of about 200 items, that he did draw those sums and that he recollected having done so, although he has no accounts or other records with which he could refresh his memory. The accounts filed by the plaintiff have been impeached by the defendant as fabrications. The accounts consist of ledgers and day-books. They are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts on his orders would not make any difference. He apparently attended to his business himself. He used to be present at the shop, except when he was away to some other place of business and plaintiff knew the way in which entries used to be made in the books of account by the different writers and accountants. In his examination-in-chief, in addition to the general statement that all the payments were made as entered and that he made the payments himself, he speaks to a large number of specific items of which he has personal recollection independently of the entries in the books; most of those items are of large amounts and he deals with them in detail in his examination-in-chief. While he was cross-examined with reference to these specific items, it does not appear that any attempt was made by the Pleader for the defendant to make out that as regards other items he could have had no personal knowledge or means of speaking to them in the way he did in his esamina-tion-in chief. No doubt it would have bean more in accordance with the proper practice for the Pleader for the plaintiff having asked him specifically about the items of which he had independent recollection, to have que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absolutely clear to my mind that he used to ask the plaintiff to make payments on his account or get money from him himself without any sort of voucher whatever. There are several instances of that sort proved by evidence independently of the entries. The nature of his drawings would also suggest that he could not have been sending chits for every payment. We find, for instance, entries relating to small amounts like ₹ 2, ₹ 3 and ₹ 5, and there are entries to show that payments were made through himself or through other persons, some of whom were apparently peons employed in the office of Gaddam Co. If there were chits in connection with those payments then the entries relating to them would not have appeared in the form in which they are made. The entries mention the names of persons through whom payments were made at the instance of and on behalf of the defendant. If the defence of the defendant was true he could easily have called those persons and shown that the entries were false. He has made no such attempt except in the two oases above mentioned but which I shall show do not bear out the suggestion of the defendant. It was strongly pressed upon us by Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced by Ex-hibit A as showing that it is unlikely that the plaintiff owed large sums of money to the defendant in 1915 or thereabout as related by him. The defendant obtained from the plaintiff assignment of an other for ₹ 4,000 and he paid down ₹ 1,000 and agreed to pay the balance of ₹ 3,000 before the Sub-Registrar. As he failed to pay the balance, the transaction fell through and the plaintiff had to refund Rs. l.000 to the defendant If the defendant's case ware' true, it was not likely that he would pay ₹ 1,000 if as a matter of fact ₹ 6,000 or ₹ 7,000 were owing to the plaintiff. 4. I shall deal now with some of the criticisms made on behalf of the defendant as to the corrections of certain entries. Under the transaction which is represented by Exhibit C 5 that is a chit on which, according to the case of the plaintiff, certain payments were made, ₹ 100 was to be paid to some person not mentioned therein. The suggestion on behalf of the defendant that Exhibit 0 5, which he alleges has been wrongly translated, means that the payment was to be made on behalf of the defendant to the plaintiff himself, is not borne out. If that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s books are false. I am satisfied on considering the evidence as a whole, in spite of the irregular way in which the cape of the parties was conducted in the lower Court and the unsatisfactory manner of proving the entries in, the books of account which were not specifically put to the plaintiff or his witnesses, that the accounts were duly kept in the regular coarse of business and that the entries represent true and honest transactions. 6. Further as regards certain items, there is corrobarative evidence in the shape of vouchers and the circumstances of the case to which I have alluded also show that the items mentioned in the entries in question are true and genuine and represent a real transaction. 7. But, it is argued on behalf of the appellant' that the evidence as it stands is not sufficient in law to found a decree on, against the defendant. Section 34 of the Evidence Act lays down that the entries in books of account, regularly kept in the course of business, are relevant, but such a statement will not alone be sufficient to charge any person with liability. That merely means that the plaintiff cannot obtain a decree by merely proving the existence of certain ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of all the items. He had independent recollection of some items, and as regards others he might have remembered them on looking into the accounts. This is suggested by a statement made by the plaintiff in his cross examination. He says with reference to certain entries: ' These I remember independently even without looking into accounts. As regards the items which he did not remember in that way, I do not find that the cross -examination was directed to show that it was improbable or unlikely, having regard to the lapse of time, or the course of business adopted by the plaintiff, or that be could not be relied upon to remember those items even on reference to the entries. It is quite true as pointed out by the learned Pleader for the respondent, that so far as it appears on the record, the plaintiff did not in so many words say that, as regards the items of which he had no independent recollection, he was sure that they were true items on examining the entries which were made and of which he had knowledge at the time or soon afterwards. That would have been the correct way of examining the plaintiff on this point, but the Pleader who conducted the case for the defence n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to be proved, strict attention should be paid to the method of proving them as pointed out in Hingu Miya v. Heramba Chandra Ckakravarti 8 Ind. Cas. 81 : 13 C.L.J. 139, and further that the entries themselves ought to be marked as Exhibits and not the books. In Jasu-ant Singh v. Sheo Narain Lal 16 A. 157 (P.C.) 21 I.A. 6 : 6 Sar. P.C.J. 404 : 8 Ind. Dec (n.s.) 101 we find that their Lord-' ships discuss at length not only the genuineness of the entries in the books of account, but also the character of the entries themselves as to whether they represented a real transaction with reference to certain items which were proved by evidence independently of the entries, and rely upon the general circumstances of the case showing that the accounts were bona fide and true. They observe: 'Their Lordships need not go through other items in the books', nor deal with the evidence showing that the defendant had bill transactions with other people. The oases they have examined are sufficient, in the entire absence of countervailing evidence, to establish three propositions. They prove that the defendant's sweeping denials of his connections with bill transactions are not true, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egarding certain entries in those accounts and other independent evidence regarding them. But I do not think that that decision is in any way inconsistent with the general proposition enunciated regarding Section 34. In that case there was in fact some direct evidence as to the making of the hundis which were in question and their Lordships, no doubt, said that the direct evidence was quite untrustworthy. They must presumably have meant that notwithstanding its intrinsically untrustworthy character they were prepared to act on it in view of the otheroiroum-stances of the case and the direct evidence as to particular items. 10. The question is whether the evidence of the plaintiff can be accepted and taken as a basis for the decree, supplemented as it is by the evidence of the accounts. The defendant contends that the plaintiff's evidence, if rightly construed, was not direct evidence at all and what he said really amounted only to inference from the account entries, and that he should not be understood as saying that he himself had any knowledge of the payments whatever independently of the presumptions which he was drawing from the entries in the accounts regarding them. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no suggestion resembling that now made by the defendant in cross examination. The defendant in fact made no objection to the plaintiff making the statements he did both generally and in detail. There were no doubt some questions put to the plaintiff with reference to his residence, as to which he admitted that he stayed in Tuticorin and also in other villages 16 miles distant and that the suit transactions took place in Tuticorin. He said also, that his agents transacted business in his absence. But he said nothing at that point regarding the particular payments which are in dispute. He said only I was present when I made those payments to the defendant. We have been referred to a number of payments which are the subject-matter of the appeal and there is no reason for adopting any such un-natural interpretation of the evidence. There was nothing farther in the plaintiffs cross-examination or in the cross-examination of one of his accountants, P. W. No. 2. P. W. No. 3, another accountant, was, no doubt, asked a question in reply to which he said: I must refer to the account to say whether all payments were made by me or by plaintiff. I cannot say anything from memory. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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