TaxTMI 
TaxTMI 
2014 (1) TMI 1976
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....he pleaded case of the plaintiff that on 2.8.1980, the defendant took a loan of Rs. 3,200/- from the plaintiff and agreed to pay interest @ 12% per annum. A writing was recorded in the bahi maintained by the plaintiff-firm, which was doing the business of money lending and having a requisite licence for the same. The defendant did not pay the loan amount thereby compelling the plaintiff-firm to file a suit for recovery. Having been served in the suit, defendant appeared and filed the written statement denying the averments taken in the plaint. He pleaded that he never took the loan of Rs. 3,200/- from the plaintiff firm, nor he put his thumb impression on the bahi entry. He further pleaded that about 11 years ago, he used to take agriculture produce to the shop of plaintiff-firm, who was doing the business of commission agent. It was also asserted on behalf of the respondent that bahi entry, if any, was a forged one. It was pleaded that Nihal Chand, who was brother of one of the partners of the petitioner-firm and father of another partner, was Sarpach of the village and defendant was member panchayat in the year 1980. The defendant being a simpleton and illiterate villager, Nih....
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....ahi which would clearly establish that the book of accounts was not regularly kept in the course of business by the plaintiff-firm. None of the partners of the plaintifffirms appeared in the witness box. Scribe of bahi entry was also not produced. PW1 stated in his cross-examination that he was not an attesting witness to the bahi entry. To buttress his submissions, learned counsel for the respondent relies upon the judgment of the Hon'ble Supreme Court in Chandradhar Goswami and others Vs. Gauhati Bank Ltd. AIR 1967 SC 1058 and a judgment of this Court in Ram Singh Vs. Rajiv Kumar and Company, 2012 (4) CCC 337. He prays for dismissal of the appeal. Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that since no substantial question of law has been found involved in the present case, no interference is warranted at the hands of this Court, while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure, for the following more than one reasons. It was undisputed fact on r....
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....In these circumstances, the irresistible conclusion is that the plaintiff failed to sufficiently plead and prove its case and the learned lower appellate court committed no error of law while passing the impugned judgment and decree which deserve to be upheld. Besides the judgments cited by the learned counsel for the respondent, the above said view taken by this Court also finds support from the judgment of the Delhi High Court in L.K. Advani Vs. Central Bureau of Investigation, 1997 (4) RCR (Criminal) 26 interpreting the scope of Section 34 of the Act of 1872. The relevant observations made in para Nos. 69, 74, 75 and 77 of the judgment, which aptly apply to this case, are as under: "69. Section 34 of the Evidence Act deals with entries in books of account and when the same would be relevant. It envisages "Entries in books of account regularly kept in the course of business are relevant whenever they refer to a matter into which the Court has to enquire but such statement shall not alone be sufficient evidence to charge any person with liability." Thus to make the entries relevant and admissible under Section 34 of the Evidence Act it must be shown : (a) that the said....
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....reme Court on the scope and interpretation of Section 34 of the Act of 1872 came in the case of Central Bureau of Investigation Vs. V.C. Shukla, 1998 AIR (SC) 1406. The relevant observations made by the Hon'ble Supreme Court, which can be gainfully followed in the present case, contained in para Nos. 16,17, 27 to 30 and 35 of the judgment, read as under:- 16. "From a plain reading of the Section it is manifest that to make an entry relevant thereunder it must be shown that it has been made in a book, that book is a book of account and that book of account has been regularly kept in the course of business. From the above Section it is also manifest that even if the above requirements are fulfilled and the entry becomes admissible as relevant evidence, still, the statement made therein shall not alone be sufficient evidence, still, the statement made therein shall not along be sufficient evidence to charge any person with liability. It is thus seen that while the first part of the section speaks of the relevancy of the entry as evidence, the second park speaks, in a negative way, of its evidentiary value for charging a person with a liability. It will, therefore, be nece....
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....have been fairly contemporaneous with the transaction entered. he also referred to $ 1526 of the same book which reads as under: The entry should have been made at or near the time of the transaction recorded - not merely because this is necessary in order to assure a fairly accurate recollection of the of the matter, but because any trustworthy habit of making regular business records will ordinarily involve the making of the record contemporaneously. The rule fixes no precise time' each case must depend on its own circumstances." (emphasis supplied) Mr. Sibal submitted that from a cursory glance of MR 71/91. It would be apparent that the entries therein were not contemporaneously made; and, on the contrary, they were made monthly which necessarily meant that those entries were made long after the dates the purported transactions of receipt and disbursement took place. 28, What is meant by the words 'regularly kept' in Section 34 came up for consideration before different high Courts; and we may profitably refer to some of those decisions cited at the Bar. In Ramchand Pitembhardar Vs. Emperor [19 Indian cases 534 it has been observed that the book....
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.... who has dally transactions cannot be the same as that of a broker in real estates. Not only their systems of maintaining books of account will differ but also the yardstick of contemporaneity in making entries therein. We are, therefore, unable to subscribe to the view of Mr. Sibal that an entry must necessarily be made in the book of account at or about the time the related transaction takes place so as to enable the book to a pass the test of 'regularly kept'. Indeed the above Section ($ 1526) expressly lays down (emphasised earlier) that the rule fixed no precise time and each case must depend upon its own circumstances. Applying the above tests and the principles consistently laid down by the different High Court s(referred to above ) we find that Mr 71/91 has been regularly and systematically maintained. Whether the system in which the book has been maintained guarantees its correctness or trustworthiness is a question of its probative value and not of its admissibility as a relevant fact under Section 34. xx xx xx 35. The same question came up for consideration before different High Court on a number of occasions but to eschew ....