Second Appeal No.181 of 1990

16th March, 2004

Petitioner Counsel: Mr. S. T. MADANANI

Cases Cited:
Zenna Sorabji Vs. Mirabelle Hotel, AIR 1981 Bom. 446 [Para 4]
Official Liquidator, M/s. Puri Bank Vs. Ramniklal, AIR 1967 Orissa 169 [Para 4,8]
Mohan Lal Bodj Raj Vs. M/s. Dwarka Nath Kuldeep Kumar, AIR 1985 J & K 85 [Para 4,9]
Sardar Gurbaksh Singh Vs. Gurdial Singh, AIR 1927 PC 230 [Para 12]
Gopal Krishnaji Ketkar Vs. Mohammed Haji Latif, AIR 1968 SC 1413 [Para 13]
Nathuji Narayanrao Udapure Vs. Narendra Vasanjibhai Thakkar, 1981 Mh.L.J. 446 [Para 14]
Pirgonda Vs. Vishwanath, AIR 1956 Bom. 251 [Para 15]

JUDGMENT

JUDGMENT :- By invoking the jurisdiction of this Court, the original plaintiff has filed this second appeal under section 100 of the Code of Civil Procedure against the judgment and decree passed by the learned District Judge on 15-12-1987 in Civil Appeal No.215/1985, whereby the appeal is allowed and the suit of the plaintiff is dismissed after setting aside the judgment and decree passed by the learned Civil Judge Junior Division, directing the respondent-defendant No.1 to pay Rs.9873.66 to the plaintiff with interest @ 12% per annum.

The relevant facts are as under :

2. The plaintiff caries on business of grocery articles. The defendant No.1 is son of defendant No.2 and they constituted a joint family. The defendants also were running grocery shop and since the year 1970-71 they purchased goods on credit from the plaintiff's shop. The plaintiff had maintained the accounts regularly during the course of his business in the name of defendant No.1 alone. The defendants had agreed that they would make the payment and the dues would be adjusted towards the old dues by the plaintiff. During the year 1976-77 the amount of Rs.6964.18 was outstanding and thereafter defendants purchased again goods on the credit in the year 1976-77 and thus the total outstanding became Rs.13,217.16. The defendants paid Rs.5,622/- in that year and therefore total outstanding due was 7795.16 at the end of the year 1976-77. The defendant No.1 purchased the goods on credit and made the payment after last purchase on 29-9-1977 and since then they had stopped the transaction with the plaintiff's shop. The total outstanding dues were carried forward in the ledger account for the year 1977-78 and 1978-79. The dues remained unpaid though demanded and hence the plaintiff was constrained to file the suit for recovery of the amount of Rs.9,873.66 with interest.

3. The defendant No.1 combated the claim and contended that defendant No.2 has no concern with the purchases made from the plaintiff's shop by defendant No.1. It is contended that some wrong interest appears in the books of account and only on the basis of the entries made in the ledger book, the defendants cannot be saddled with the liability to pay the dues. The plaintiff Deshraj (P.W.1) examined himself only whereas the defendants did not enter into the witness box. The trial Court on consideration of the documentary as well as ocular testimony of the plaintiff, decreed the suit against the defendant No.1 directing him to pay Rs.9873.66 to the plaintiff with 12% interest from the date of the suit till realisation with costs. The defendant being aggrieved by this judgment and decree of the trial Court, carried appeal to the District Court. The learned District Judge by judgment dated 15-12-1987 allowed the appeal, set aside the judgment and decree passed by the trial Court and consequently dismissed the suit. This judgment of the appellate court is under challenge in this second appeal.

4. Mr. S. B. Bhangde, the learned counsel for the plaintiff contended that the trial Court was perfectly justified in placing reliance on the entries recorded in the ledger account and also on the ratio laid down by this Court in the case of Zenna Sorabji Vs. Mirabelle Hotel and others, AIR 1981 Bombay 446. He contended that the duly bound ledger book is incapable of being tampered with. The entries in the ledger book are admissible in Evidence Act under Section 34. He contended that the plaintiff has not only produced the true extract of the entries from the ledger book but also produced the bill book and cash book and those have been duly proved through the testimony of the plaintiff. He contended that the appellate Court has committed an error in rejecting the evidence in relation to the entires recorded in the ledger book to show total outstanding amount for the goods purchased on credit by the defendant No.1. He contended that the finding of the appellate Court that the entries in the ledger account have not been proved so as to make admissible under section 34 of the Evidence Act, is not sustainable in law. In support of these submissions he relied on the decision of the Orissa High Court in the case of Official Liquidator, Puri Bank Vs. Ramniklal - AIR 1967 ORISSA 169 and M/s. Mohan Lal Bodj Raj Vs. M/s. Dwarka Nath Kuldeep Kumar, AIR 1985 J & K 85.

5. The submission of the learned counsel for the plaintiff is that the defendants did not enter into the witness box and therefore, the plaintiff had no opportunity for cross-examination of the defendants and in such circumstances, adverse inference under section 114(g) of the Evidence Act has to be drawn especially when the defendant No.1 admitted in his pleadings that he had purchased the goods on credit from the shop of the plaintiff. He contended that the conduct of the defendant would clearly establish that the total dues outstanding against him were to the tune of Rs.9873.66/- as is held by the trial court. He contended that the plaintiff had delivered interrogatories by submitting application (Exh.73) before the trial Court which was erroneously rejected on 13/09/1985. He contended that on the basis of vague pleadings of the defendants that there were no outstanding dues against him is liable to be rejected.

6. None appears for the defendants, though served on merits.

7. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the plaintiff. It is necessary to reproduce Section 34 of the Indian Evidence Act, which reads as under :

"Entries in books of accounts 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."

Analysis of this section would reveal that this provision contemplates; (i) that the entries in the books of account regularly kept in the course of business are relevant and therefore admissible whenever they referred to a matter in which the Court has to inquire, and (ii) that such entires though admissible, are not alone sufficient to charge a person with the liability unless corroborated by other evidence.

8. In Official Liquidator, Puri Bank Vs. Ramaniklal Joshi and others, AIR 1967 ORISSA 169, the Orissa High Court took the view that the adverse inference cannot be drawn against the Bank for the non production of its cash book and held that the evidence of P.W.1 Ex-Secretary of the Balasore Branch of the Puri Bank, who proved the entires in the books of account of the Bank on which the Bank relied in support of its claim against the defendants were kept in the usual course of business are admissible in evidence under Section 34 of the Evidence Act.

9. The Jammu and Kashmir High Court in the case of M/s. Mohan Lal Bodj Raj Vs. M/s. Dwarka Nath Kuldeep Kumar - AIR 1985 J & K 85 observed in para 5 that, the plaintiff has appeared as his own witness and has stated that he has supplied goods to the defendant for an amount mentioned in the plaint out of which part payment was made by the defendant and part payment was due from him on account of supply of those goods. There is no rebuttal led by the defendant with respect to the statement given by the plaintiff. This, in my opinion, would constitute sufficient corroboration within the meaning of law about the entries made in the ledger.

10. In the present case it is relevant to note that the plaintiff has testified to the effect that he has maintained the accounts in regular course of his business as well as he has maintained the bill book, cash book and also produced the copy of the ledger right from the year 1970-71. He also testified that account was opened in the name of the defendant No.1 as he used to purchase goods on credit from his shop. The extract of the accounts produced on record were verified from the original by the Court officials in the trial Court. It is equally significant to note that the plaintiff had delivered interrogatories to the defendant by application (Exh.73) which was erroneously rejected by the trial Court. In the application itself it has been mentioned that the plaintiff has annexed the schedule therein showing the transactions of the plaintiff with the defendant. The defendant have filed their written statement with vague submissions and there is no specific denial of the entries in schedule. The defendants have not explained as to what transaction or entry is in dispute. The defendants are required to answer specifically particular entry of purchase or payment. The pleadings of the defendants are ambiguous. The defendants have taken inspection of the accounts of the plaintiff and the counsel and the defendants have examined each and every bill of the plaintiff including the Khatavani and Cash book. The defendants have however put themselves out of the witness box by filing pursis to the effect that the defendants do not want to lead any evidence and the defendants have not explained about the transaction with the plaintiff and therefore, to make the controversy precise, the interrogatories were delivered. Perusal of the interrogatories would reveal that the defendant No.1 was called upon to answer the following interrogatories:

(1) Is it not true that you were the customer of plaintiff from the year 1970-71 to 1976-77 as contended by the plaintiff?

(2) Is it not true that you were purchasing the goods on credit from the plaintiffs shop as contended by the plaintiff?

(3) What transaction or payment is incorrect as shown in schedule A?

(4) Do you dispute the payments made by you to the plaintiff as shown in Schedule 'A' and if there is dispute regarding any payment of any amount from you to the plaintiff what is that entry?

(5) Is it not that you have purchased goods on credit as shown in Schedule 'A'?

(6) What transaction of purchase you deny?

(7) Do you desire to say that you have not purchased any goods as claimed by the plaintiff?

(8) What entry of purchase you deny?

(9) Have you not taken inspection of the accounts of plaintiff with your counsel?

(10) Is it not true that the bills inspected by you bears your signature?

(11) Is it not true that the copies of bills filed by the plaintiff on record are true copies of Bills showing your transaction with the plaintiffs?

(12) How your signatures are on the bills are shown in Original Bills maintain by the plaintiff?

(13) When you dispute the transaction with the plaintiff how the Bills bears your signatures?

(14) How you claim exemption from the liability to the claim of plaintiff?

(15) Is it not true that for non-payment of price of goods purchased by you on credit from other Shop Keeper decree passed against you?

11. When the interrogatories were delivered, it was obligatory on the part of the defendants to answer those interrogatories which would have certainly curtailed the controversy between the parties, but instead of doing that, the defendants have opposed the application and it appears that the trial Court has erroneously rejected the same on 13/09/85. The defendants have denied that the outstanding balance of the account was shown in the ledger book against the name of defendant No.1. However, the fact of payment of Rs.5622/- in the year 1976-77 was admitted by the defendant No.1. It was contended that on 29/09/1977 the defendant had purchased goods worth Rs.307.37/- but it was specifically asserted that the price of these goods were paid on the same date to the plaintiff. It was further contended that the defendant No.1 stated his shop at some other place about five years back and not about two years back as contended by the plaintiff. Finally it was contended that the suit of the plaintiff is barred by period of limitation. It is manifest that the entries in the books of account have been duly proved through the evidence of the plaintiff and those entries are clearly admissible in evidence under section 34 of the Evidence Act since the books of accounts are regularly maintained during the course of the business and the entries in the ledger book are not capable of being tampered with. Moreover, the entries in the ledger books are also corroborated by the testimony of the plaintiff and the entries which are recorded in the cash book and bill book. In such situation, the finding of the appellate court that the entires in the account books are not admissible in evidence, cannot be upheld.

12. The next submission of the learned counsel for the plaintiff is that the defendant No.1 did not enter into the witness box and therefore, adverse inference against him may be drawn. There is merit in this submission. In this context reference may be had to the decision of Privy Council in Sardar Gurbaksh Singh Vs. Gurdial Singh, AIR 1927 PC 230 wherein it has been observed that; "It is the bounden duty of a party personally knowing the whole circumstances of the case to give evidence on his behalf and to submit to cross-examination. Non appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case."

13. This Court may also usefully refer the decision of Supreme Court in the case of Gopal Krishnaji Ketkar Vs. Mohammed Haji Latif, AIR 1968 SC 1413, wherein the ratio has been laid down that even if the burden of proof does not lie on the party the court may draw adverse inference if it withholds important documents in his possession and which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.

14. The ratio laid down by the Privy Council has been followed by this Court in Nathuji Narayanrao Udapure Vs. Narendra Vasanjibhai Thakkar, 1981 Mh.L.J. 446 and it was held that; it was the bounden duty of a party personally knowing the whole circumstance of the case, to give evidence on his behalf and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case.

15. This Court has also taken a similar view in the case of Pirgonda Vs. Vishwanath, AIR 1956 Bom. 251 wherein it was held that; "normally a party to the suit is expected to step into the witness box in support of his own case and if a party does not appear in the witness box, it would be open to the trial Court to draw an inference against him. If a party fails to appear in the witness box, it should normally not be open to his opponent to compel his presence by the issue of a witness summons."

16. Generally speaking there is a good deal to be stated in the contentions that the suit should succeed on the ground that the defendant had not cared to enter the witness box and testified as to truth of his case. The party who does not enter the witness box runs a great risk of presumption being drawn against him. In the case of a party on whom burden of proving certain issues lies runs the risk by withholding from entering into the witness box. However, presumption under Section 114 of the Indian Evidence Act, 1872 is rebuttable, but the Section makes it obligatory on the Court to act on such presumptions. Therefore, it is clear that when a party abstains himself from giving substantial evidence, adverse inference can be drawn against it.

17. In the present case the defendant did not enter into the witness box and even has opposed the interrogatory application filed by the plaintiff and therefore, adverse inference has to be drawn against him that he did not enter into the witness box only to avoid the payment of the goods purchased on credit, especially when there is ample evidence on record adduced by the plaintiff in the nature of the entries in the books of accounts which is regularly kept during the course of the business. Therefore, contention of the learned counsel for the plaintiff that the appellate Court had entirely erroneous approach to the matter, is well merited and this Court is of the considered view that the entries in the books of account are admissible in evidence to show the outstanding dues against the defendant No.1. In that view of the matter, the impugned judgment of the appellate Court cannot be sustained in law and is set aside and that of the trial Court is restored. The appeal is allowed with cost throughout accordingly.

Appeal allowed.