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TMI Blog1911 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Courts below as to the scope and application of S. 34 of that enactment, that it may serve some purpose to pause and examine its provisions before applying them to the facts of this case. The remarks of their Lordships of the Privy Council in Jaswant Singh v. Sheo Narain Lal [1894] 16 All. 157 , 21 I.A 6 (P.C) are instructive as to the variety in account books. Some may be, as described by the Subordinate Judge in the above case, of no evidential value, but merely a man's private record, prepared by him, as may be in accordance with his pleasure or convenience. "Other accounts may be so kept, and may so tally with external circumstances, as to carry conviction that they are true. And their Lordships continue. "The Evidence Act, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d: "It must be confessed the to forge elaborate accounts extending over six years, or even to insert new sheets in such accounts, would be a most dangerous undertaking, and to make the different books correspond exactly would be a task of almost insuperable difficulty." 2. I have written enough to show that the words in Section 34 of the Evidence Act, "books of account, regularly kept in the course of business" are of the first importance in giving effect to the principle enbodied in the section. 3. That principle is to admit only such statements recorded by a party in his own behalf as by their nature and circumstances are ordinarily beyond his power to tamper with, undiscovered for the purpose of a particular case. Therefore when an ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a volume, pamphlet, sheet of latter press, sheet of music, map, chart, or plan separately published." This is a special definition for the convenience of using a single word to answer the purpose of a particular Act, and would obviously misrepresent what the legislature had in mind when enacting Section 34 of the Evidence Act. It may be pointed out that even the Marwari bahis, though capable of being unbound without damage, are not made in that form for that purpose, but, when properly kept, are paged and intended not to be taken apart at any time for any purpose. I think the term "book" in S. 34 aforesaid may properly be taken to signify, ordinarily, a collection, of sheets of paper bound together with the intention that such binding sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of totals and striking of balances from time to time lies the chief safeguard under which books of account have been distinguished from other private records as capable of containing substantive evidence on which reliance may be placed. A private diary may be most regularly kept and contain records of facts, contemporaneously made, of the utmost value. It may be used for contradicting or corroborating a witness or refreshing his memory and the like under Sectionss 144, 157 and 159 and others of the Evidence Act; for such user does not make the document itself evidence: cf. Ramji v. Rangayya [1862-63] 1 M.H.C.R 168. It may also come in under S. 32(2) if the requirements of that section are satisfied. But no entry in such a diary can be fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tries of items, of which no account is made at any time, is not a book of account for the purposes of S. 34. The papers produced by D.W 12 in this case are entirely devoid of totals and balances. Therefore, the entries in them never ripened into accounts, and such entries--which could obviously be fraudulently added to or penned through at any time without hindrance or discovery--are not admissible under S. 34. 7. Finally, when we have got books of account, properly so called, we must see that they have been regularly kept. This does not mean, as is frequently supposed, that they must be maintained in a particular form favoured by bankers--usually called the mahajani system. Their evidential value will, of course, depend upon their formali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut formal proof, that because the book is the khata or robkar of some firm, it is regularly kept. The question whether or not a book is regularly kept is one of fact, to be proved (if not admitted), according to the circumstances of each case. 8. Where an entry is properly admitted it is mere waste of time to have its contents repeated out of the mouth of a witness who merely reads it and cannot supplement it with his personal knowledge. Use of an entry to refresh memory is one thing: its proof as substantive evidence under S. 34 is another; but this distinction is constantly lost to sight by Judges and practitioners. A clerk called as a witness may depose: "I remember paying out Rs. 100 as a loan to the defendant some time last year. Havi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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