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M/s. Pankaj Soaps & Detergents, Represented by Its power holder, Ramesh J. Shah, Kochi & Another v/s M/s. Chaithanya Brothers, Represented by Its Proprietor & Authorized Signatory, N. Bharathan, Alappuzha & Another

    RFA. No. 321 of 2014 (C) & CO. No. 26 of 2017

    Decided On, 23 June 2022

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE P. SOMARAJAN

    For the Appearing Parties: K.N. Sivasankaran, Sunil Shanker, Achu Subha Abraham, N. Aswathy, K.R. Monisha, Philip T. Varghese, C.S. Roopa, Thomas T. Varghese, Advocates.



Judgment Text

1. The plaintiff came up in appeal on the reason that the suit claim for Rs.10,05,704/- with interest was not granted by the trial court, but decreed the suit in part for an amount of Rs.2,50,000/- covered by Ext.A3 cheque. The dispute is centering around Exts.A11 and A12 statement of accounts, which were heavily relied on by the plaintiff in support of their claim for Rs.10,05,704/-. The plaintiff is a manufacturer of soaps and detergent. Exts.A11 and A12 were maintained in connection with the purchase of soap and detergent by the defendant. A13 series are the invoice of the purchase of articles on various occasions. But there is no payment schedule annexed to that document. Hence, the plaintiff heavily relied on Exts.A11 and A12, the register and ledger maintained in the usual course of business.

2. In order to resolve the issue, it is necessary to address as to what is the evidentiary value that can be attached to a document under Section 34 of the Evidence Act and what would be the legal position, when the document itself is an unbound sheets of paper with certain entries and whether it can be brought under the purview of Section 34 of the Evidence Act and also what would be the legal position after the amendment to the section by Act 21 of 2000.

3. It is by virtue of Section 34 of the Indian Evidence Act, a self serving document was brought under the purview of 'relevant evidence', whenever they refer to a matter in dispute pending consideration before a court. But such a statement shall not alone be sufficient evidence to charge any person with liability. The second part of Section 34 of the Evidence Act makes the legal position clear that even on the compliance of requirement as mandated in the first part of the section, that is, the entries in the books of account must be a one regularly kept in the course of business, such statement or entry shall not alone be sufficient evidence to charge any person with liability. The principle behind it is that by virtue of section 34 of the Act, a self serving entry or statement brought under the category of relevant evidence and hence it mandates strict compliance of requirement that it was kept in course of business. The expression “regularly kept in the course of business” and the user of the word “regularly” in the section manifests complete trustworthiness in the maintenance and keeping of such statement or entry in the course of business and hence requires an unabetted maintenance of entry/statement in the course of business. Otherwise, the document would fall under the category of 'self-serving evidence' having no relevance at all. Even if it is shown as unabetted and reliable kept regularly in the course of business, it cannot be the sole basis for fastening liability. Inorder to have an application of Section 34 of the Evidence Act regarding relevancy of a particular entry/statement, the entire year-wise/periodwise register kept in usual course of business should be produced so as to ascertain the core requirement “regularly kept in the course of business” by ruling out the chances of manipulation, overwriting, alteration, substitution and elements of repugnancy etc.. A mere oral evidence adduced through the person who maintained the record is not sufficient to discharge and satisfy the said core ingredient. Mere production of some unbound sheets of paper with certain entries or a particular sheet in which the entry was made referring to the matter in dispute alone is not sufficient to satisfy that it was maintained and kept regularly in the course of business, even if it is supported by the oral evidence of the person who kept the record or who maintained the same. The section is carefully worded by the incorporation of “books of account” and entries thereof.

4. What is produced and let in evidence as Exts.A11 and A12 are unbound sheets of paper and not a register or a books of account. It was submitted that it is the electronically generated sheets of paper and after the amendment to Section 34 by the incorporation of words “entries in books of account including those maintained in an electronic form” by substitution by Act 21 of 2000 makes the area more susceptible to electronic records irrespective of whether it is in the form of a book or books of account in which there is no much scope for maintaining a bound books of account. It was submitted that the provision should be understood not in the technical point of view that it should be in the form of a bound book, when it was generated and maintained electronically. It is true that there cannot be any insistence that the account maintained electronically should be a bound book. But at the same time, it must satisfy all characters of a bound book as there is no scope for diluting the requirement as mandated under the provision. Certainly, the account should be in the form of a register or books of account in all respects and the entire primary evidence or the secondary evidence with the required mandate of certification under Section 65 B of the Evidence Act should be produced besides the evidence regarding its maintenance in the course of business, wherein also, the chances of manipulation, substitution, alteration etc. should be ruled out. The corollary is that (1) a mere production of account and oral evidence tendered would not be sufficient to discharge the mandate under the first limb of Section 34 of the Evidence Act unless the same is proved to be unabetted and trustworthy and (2) it cannot be the sole basis for fastening the liability and there should be some other evidence in order to show each and every entry maintained in the due course of business, such as return submitted to the taxing authority and other documents. Hence, the unbound sheets of paper without disclosing the entire transaction maintained in the relevant period or year will not render any assistance. Exts.A11 and A12 are only unbound sheets of paper. It is true that these are the printed extract of certain entries. The entire books of account for the relevant period or the year in the form of account book or account register was neither produced nor let in evidence. Mere unbound sheets of paper though electronically generated cannot be substituted in the place of a document as mandated under Section 34 of the Indian Evidence Act, even when there is oral evidence in support of that documents. Hence, no reliance can be placed on Exts.A11 and A12 documents. Further, those documents cannot be used as sole evidence for fastening

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liability. 5. Inspite of production of certain documents under Order XLI Rule 27 C.P.C. by the plaintiff/appellant, the best evidence regarding the entry in Ext.A11 and A12, i.e. the income tax and sales tax return were not produced. At this juncture, it was fairly submitted by the learned counsel for the plaintiff that it is due to lack of advice those documents were not produced and hence pressed for a remand of the matter. Hence, the decree and judgment of the trial court are set aside. The matter is remanded back to the trial court for fresh disposal. The parties shall appear before the trial court on 25/07/2022. Both the appeal and the cross objection will stand allowed accordingly. No costs.
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