Statements Made Under Special Circumstances: With Specific Reference to Section 34
Two general classes of statements are dealt with in this portion of the chapter:
a. Entries in Books of Accounts, regularly kept in the course of business
b. Entries in Public Documents, Or in Document of a Public Character
Both classes of statements are admissible or relevant. Whether the person who made them, is or is not, called as a witness, and whether he is, or is not, a party to the suit, and are admissible owing to their special character and the circumstances under which they made, which in themselves afford a guarantee of their truth.
The first class of statements are not generally admissible according to the principle of the English Common Law, except in the cases of entries against interest or made in the course of business by deceased person, but courts of equity acted upon the principles admitting account – books in Evidence in cases in which the vouchers has been lost, and the principle has been adapted in certain cases, by the rules of the Supreme Court.
As a general rule, a man’s own statement is not as Evidence for him, though if certain cases it may be used as a corroborative Evidence. The entries alluded to in Section34 being the acts of the party himself, must be received with caution. But these statements are in principle admissible upon considerations similar to those which have induced the courts to admit them in Evidence when made by persons who are dead and cannot be called as “witnesses”. Moreover, in the word of Judicial Committee ‘accounts may be kept, and so tally with external circumstances as to carry conviction that they are true.Moreover, subject to the restrictions that they shall not be sufficient alone to charge a person with liability without some independent Evidence.
Development of Section 34 through Judicial Decisions
The Evidence Act, Section 34 States that:
“Entries in books of account 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.
A sues B for Rs. 1,000, and shows entries in his account-books showing B to be indebted to him to this amount. The entries are relevant, but are not sufficient, without other Evidence, to prove the debt. Section34 enacts that; entries in books of accounts regularly kept in the course of business shall be relevant Evidence, though not sufficient of themselves to charge any person with liability. The admission of such entries on behalf of one person, making them in an exception to the general rule laid down in Section21. Such entries were not being admitted in English Common Law unless they happened to be against the interest of the person making them or were made in the course of his business by deceased person. But equity courts have gradually enlarged this exception, and regularly kept books of account have been accepted by them as Evidence for many years. The essentials on which these principles are based,
1. The habit and the system of making such books with regularity, ensure their accuracy.
2. the influence of habit prevents casual inaccuracy, and counteracts the casual temptation of mis-statements.
3. as such books record a regular process of business transaction, an error almost certain to be detected and rectified.
4. in such Books mis-statements cannot be made, except by a systematic and comprehensive plan of falsification.
5. In some cases the entrant may make record under a duty to an employer, in case of entrant committing any mistake.
Court in Poole v. Dicas held that, the clerk has no interest to make false entry, if he has any interest; it is rather to make a true entry… a false entry would be likely to bring him into disgrace with his employer. Again the book in which the entry was made may be open to all the clerks in the office, so that an entry, if false would be exposed to speedy discovery.
The rule rests upon the consideration that the entry or other writing was within the writer’s business. In all such entries the writer has full knowledge, no motive to falsehood, and there is the strongest improbability of untruth. Safer sanction rarely surrounds the testimony of the witness examined under the oath.
The principle of admissibility of parties account books or shop books shows a recognition of the two traditional features of hearsay exception in general, namely, the necessity principle and the circumstantial probability.
In applying the general principle of regularity of entry, different circumstances may come into picture – the kind of occupation, the kind of book, the kind of item. It is recognised that to use a system of regular account to sustain a particular fraud is so difficult and dangerous a procedure, that the courts may guide their decisions by using entries in such a system, truth and accuracy and contemporaneous record being almost indispensable for the due carrying on of such account. In Jaswant Singh v. Shew Narain Lal, their lordship of the privy council, remarked, “it must be confessed that 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 different book correspond exactly would be task of insuperable difficulty.” The words of Section 34, Evidence Act, “books of account, regularly kept in the course of business” are of the first importance in giving effect to the principle embodied in this section. That principle is going top admit only such account 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 entry of that kind is tendered, it must be shown to be in a book, that book must be a book of account, and that account must be one regularly kept in the course of business. The illustration to Sec. 34 makes it abundantly clear that it refers only to the entries of account – books of a plaintiff. Therefore, the entries in account-books of an entirely different institution cannot alone be sufficient to charge the defendant with liability. The circumstance surrounding the existence of books of account and the circumstances surrounding the transaction which is recorded in the book of account may well constitute sufficient corroborative material. If no objection was taken at the time of the production of the account book, no objection can be subsequently taken in appeal. It is essential that objection should be taken as soon as the book of account are sought to be admitted in Evidence. However, even if no objection could be taken in appeal to the admissibility of the Evidence, their reliability and the weight to be given to the account-book have still to be considered.
Application of the Rule
For the practical application of this rule in India, their lordship in Privy Council said, “no Evidence was brought before the provincial court or the court of Sadar Dwani Aalat, which was not before the Zillah court; so that the decree can only be supported by holding that one party, by merely producing his own book of account, can bind the other. But such a proposition is utterly untenable”. In Ganga Prasad v. Inderjit Singh, they observed to the same effect. Under the old law books it is admissible as corroborative Evidence but not as an independent Evidence of the facts stated therein, under the present entries in books of account is not alone sufficient Evidence to charge any person with liability, i.e. unless corroborated with other Evidence. Account books are admissible under this Section, even though the entries in them were not made by, or at the dictation of, a person who has personal knowledge of the truth of the facts stated. This is a matter, however, which may affect the value of accounts as Evidence.
In Munchershaw Bezanji v. New Dhurumsey Spinning and Weaving Company, one of the plaintiff’s witnesses, Khimiji Thakersi, stated in Cross-examinationthat he had formerly been employed by Chusmanbhai Dhurumsey at intervals of week or a fortnight, to make entries in his cashbook relating to private transactions, which he, the witness, did from Cassumbhai’s losses memorandum or from oral instructions given by Cassumbhai. This cash book was then tendered in Evidence, but West J, refused to receive it. The opinion expressed in the judgement in this last mentioned case, against the reception of an account book containing an entry not made at the time of the transaction was to approved by the judicial committee in the case of Deputy Commissioner of Bara Banki v. Ram Pershad, as it was held that by Sec. 34 the admissibility of books of account regularly kept in the course of business is not restricted to books in which entries have been made from day to day, or from hour to hour transactions have taken place, and that the time of making the entries may affect the value of them but should not, if they have been made regularly in the course of business regularly in the course of business afterwards, make them irrelevant.
Books of Account
In Hira Meher v. Birbal Prasad Agrawal, it was held that account- book, not regularly maintained, is not relevant Evidence under Section34 of the IEA.
A Khata Bahi, if it is maintained in the regular course of business it is admissible in Evidence under Section34 of the IEA. But what weight can be attached to the khata entries when the original entries in which they based are not produced is quite a different matter. Section34 contains the rider that “such statement shall not alone be sufficient Evidence to charge any person with liability”. In the first place the provisions deals only with “Books of Accounts”. It primarily pertains to pecuniary transactions.
The Expression “book of accounts” means books in which merchants, traders, or businessman; generally keep their accounts, i.e. statements of debits or cridits or receipts or payments. A register kept at the hotel need not contain any statements of accounts. So until it is shown that such register also pertained to the pecuniary transactions involving the customers of the hotel the same cannot be treated as a book of accounts. In the second place, even if it is assumed that a register kept in a hotel can be treated as book of acoounts the entry therein cannot become the sole premise to charge a person with liability.
From a plain reading of the Section it is manifest that to make an entry relevant it must be shown that it has been made in a book, that book is a 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 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 part speaks, in negative way, of the evidentiary value for charging a person with liability. It will, therefore, be necessary for us to first ascertain whether the entries in the documents, fulfil the requirements of the above Section so as to be admissible in Evidence and if this question is answered in the affirmative then only its probative value need be assessed.
· What is the meaning of “Books of Accounts”?
The term “Books of accounts” is defined in Words & Phrases
“A book of account is a record of sale or other transaction involving credits and debits, and a book containing minutes of cash paid, only, is not properly a book of account”.
‘A diary is not admissible in Evidence under the rule admitting books which is used in the regular course of business kept by the party as book of account.’
Now Section 34 does not make books of accounts inadmissible unless corroborated. It is not therefore correct to say that such books of accounts are inadmissible unless corroborated if required charging a person with liability. It would be more correct to say that admissible they do not establish the facts required to be proved, unless corroborated. Books regularly kept in the course of business can according to Evidence act be used not only for the purpose of refreshing the memory of the witness but also as corroborative Evidence of the story he tells. A party who calls for an account book cannot be permitted to take advantage of it in as far as it helps his case and to ignore it to the extent to which it is against his interest.
How Account Books be admissible as Evidence:
The account book in which balances are not struck for six days consecutively, is not a document which would inspire the confidence in a court of justice. The entry offered must be an original; if the original cannot be had, a copy may be used.
In Jain Plastic Industries v. Gopi Chand Case, the question arises as to whether the tribunal is right, in law, in disregarding the ledger’s accounts which were produced. It is true that the ledger accounts were prepared by the tenant but the only reason given for not relying on the ledger accounts produced is that many pages were left blank in the ledgers which were brought to the court. It is common knowledge, and judicial notice can be taken of this fact, that whereas a cash book or a journal or other primary books of account may not have blank pages. A ledger is meant to contain accounts of different parties like banks, customers, landlord, tenants etc. A certain number of pages are located to each account. For instance, a bank account may have pages 1 to 10 allocated to it, a customer’s account may have pages in the ledger. Merely because the; edger which was produced before the tribunal contained blank pages cannot lead to the conclusion that the entries made therein are wrong.
Where all the entries were found on the last page of the book having many pages blank and many torn out, they were held, “insufficient” for proof.
The books of account should be written in a specific format, as accepted in the normal course of business, if written in a cramped style on the same page then such a presentation of accounts will detract the value of this entry. But as there is no specific form or language in which the entries are to be made. No definite rule can be fixed as to the kind of business, regular books of which may be admitted under the section. Any occupation which makes necessary for books to be kept as the record of its transaction, the monuments of its daily business, as factories, forges, gas-works, banks, factorage, so if in such a business’s if the entries are not regular then this will make the same inadmissible, whereas if books are required ex necessitate rei to be kept, those books are to be let in under the law for the same purpose and to the same extent that a merchant’s or shopkeeper’s books are received in Evidence. The above principle clearly explained that, what should be the format of the accounts book is the question of fact rather than a question of law, there is no water tight compartment that in what kind of business specific accounts are required and in which accounts with simple hathbhai from will do. As explain by the Lumpkin J in the above case with the help of example that, if the accounts book is of a factory, then it should be made on regular basis. If the accounts book is of a merchant or a shopkeeper then it can be the case that there are no regular transactions, so regular accounts are not required.
Proof of Books of Accounts
No presumption of correctness attaches to entries in books. The regular proof of books of account requires that the clerks who have kept these accounts, or some person competent to speak to the facts, should be called to prove that they have been regularly kept and to prove their general accuracy. Transaction in sale and purchase of shares and the entries made in books of accounts can be proved by person whose account books they are and who had knowledge of them. The account cannot be said to be properly proved when the accountant who wrote them is alive but has not been examined. But in Emperor v. Narbada Prasad, their lordships have observed as follows: “The legislature dispensed with the necessity of any formal proof that the book were kept in regular course of business. It was a matter intrinsic Evidence as to whether the books in question were books of account and regularly kept in the course of business.” The proper procedure to follow is, as laid down by their lordships of the judicial committee in Dwarka Dass v. Janki Dass, to call to speak to their genuineness, to prove that the books have been regularly kept and that they are generally accurate. But is not sufficient to prove the correctness of the book, the entries themselves have to be unless indeed the necessity for such prove is removed by the admission of the opposite party. An account not regularly kept cannot be used be used in Evidence. However memoranda kept by a witness can be used in Evidence not by itself but as corroborating a witness or his memory.
The words “regularly kept” are not synonyms with the words “correctly kept” the words regularly kept only means that they should be kept in accordance with a certain fixed method or in some customary form. The form “regularly kept” has reference to the system of book keeping, rather than to the truth of correctness of account in usual book of accounts. All that is necessary is that the book should be such a regular usual account book as explains itself and as appears on its face to create a liability in a account with the party against whom it is offered. No doubt an account book kept in the form of daily entries of debits and credits is as far more satisfactory. But it is not essential that the account should be made up daily.
To ascertain whether a book of account has been regularly kept the nature of occupation is an eminent factor for weighment. The test regularity of keeping accounts by a shopkeeper who has daily transactions cannot be the same as that of a broker in real estates. Not only their system of maintaining books of account would differ but also the yardstick of contemporaneity in making entries therein. The account books should not be rejected merely because they are in the form of an hathbhai when it is clear from the books that they have been regularly kept and entered by the person having considerable knowledge of accounts. For the purpose of Section34 of Evidence Act, no particular form of books of accounts are prescribed. It is not necessary that the entries in the books should have been made from day to day or from hour to hour as the transaction takes place. But the person making the entries should have personal knowledge of the facts stated. Accounts prepared from rough books or memoranda should be treated as original accounts and cannot be rejected on the ground that they were not entered on a regular basis.
After the completion of the project the researcher reach to the conclusion that, the Books of accounts is admissible as Evidence under Section34 of the Act, but how much weightage would be given to it is a question of fact. Furthermore, any kind of account books would be admissible under Section34 if they are regularly made and person making it is aware about the facts stated in it. So even if accounts book is made in hathbhai form then also it would be admissible, if it satisfies the above requirements. Furthermore, if accounts are made from a rough book than also it would be admissible if the rough book is maintained regularly.
Hence the researcher would like to rest his research on the topic Statements Made Under Special Circumstances: With Specific Reference to Section34 and conclude the project
REVIEW OF LITERATURE:
This is a Doctrinal Research project and the relevant material for this project has been collected from the primary as well as secondary sources. Doctrinal Research is a research as we all know that it is based on the principles or the propositions made earlier. It is more based on the sources like books of the library, and through various websites. At this point of time it is pertinent to review the literature from where the relevant material has been collected. For the purpose of the said Research Project the Researcher has collected the relevant material and will continue collecting the material from books on Law of Evidence and would also be referring to Judgment of Hon’ble Supreme Court and Various High Courts and from various other sources.
The books that have been referred for the said research project are
· The Law of Evidence by Dr. S.R. Myneni,
· Fields commentary on law of evidence by Gopal S Chaturvedi, S.C. Tyagi
· Law of Evidence 2nd edition 2008, S.K. Sinha Roy
· Law of Evidence Premier Pub co. edn 2007 vol 2,
· Indian Evidence Act by Dr. Satish Chandra 4th edition 2007.
· The researcher has heavily relied on The Law of Evidence by Dr. V. Krishnamachari while preparing this research project as it contains the concept and briefs about various case laws in a very apt and precise manner. This and all other books referred above have been proved to be very helpful.
· The researcher would also be referring to Judgments of Hon’ble Supreme Court and High Court for elaborating interpretation.
· All these primary and secondary sources of the information have proved to be very useful in the research project.
The methodology being used is Doctrinal i.e. I would be sticking to the library sources, available databases. The present research study is mainly a doctrinal and analytical. Keeping this in view, the researcher utilized the conventional method of using libraries consisting of primary sources. As the study is doctrinal in nature, historical and doctrinal methods are adopted because it is not possible to study purely by experimental method. The relevant material is collected from the secondary sources. Materials and information are collected by legal sources like books on Law of Evidence. The material is also collected from the electronic media as well.
From the collected material and information, researcher proposes to critically analyze the topic of the study and tries to reach the core aspects of the study.
How Section 34 creates an exception to the general rule i.e. self serving statements are not admissible before the court.
Object of the Research:
The Object of my research is to find out reasons which allow section 34 to become an exception to the rule that self serving statements are not admissible before the court.
Scope of the Research:
The scope of my research is limited. Scope is limited to know that how section 34 become an exception to the rule that, self serving statements are not admissible before the court.
It is assumed that without any exception, self serving statements are not admissible before the court.
# Storr v. Scott, C& P 241
# Ishan v. Haran (1869) 11 WR 526
# Kheero v. Beejoy (1867) 7 WR 533
# Jaswant v. Sheo, (1894) ILR 16 All 157
# Substituted by Act 21 of 2000, Section92 and Schedule II, for "Entries in the books of account" (w.e.f. 17-10-2000).
# Mukundram v. Dayaram, AIR 1914 Nag. 44
# 1 Bing. N.C. 649
# Mukundram v. Dayaram
# I.L.R. 16 All 157
# Gulam Ahmed v. Government of Jammu and Kashmir, 1960 J&K 136.
# Kallu Mal v. Bhagwati Das, AIR 1925 All. 742
# M.E. Molla Sons Ltd. v. Burjorlee, AIR 1932 P.C. 118
# Ramji Batanji v. Manohar Chintaman, AIR 1961 Bom. 169
# Rai Shri Kishen v. Rai Har Kishen, 5 Moo. I. A. 365
# 23 W.R.P. 391
# Queen v. Hardip Sahai, 23 W.R. Cr. 27
# ILR 4 Bom. 576
# ILR 27 Cal. 118(P.C.)
# Hingu Miah v. Heramba Chandra Chakrabarti, 13 CLJ 139
# AIR 1958 Orissa 4
# Shri Aswani kumar v. Union territory of Tirupura, AIR 1969 Tirupura 26
# Permanent Edition, Vol. IA pages 185
# L.K. Advani v. Central Bureau of Investigation, 1997 Cri LJ 2559
# Uttam Chand Ishar Das v. Hakim Mohammad Sharif, AIR 1932 Lah. 417
# AIR 1990 Delhi 51
# Kulapati Venkata Mallayya v. Thondapu Ramaswami, AIR 1964 SC 811
# Per Lumpkin J, Ganahl v. Shere, 24 Ga 17
# Dwarka Dass v. Janki Dass, 6 MIA 88 at p. 98
# Bastilal v. Official Liquidator, Pareek Commercial Bank Ltd., AIR 1962 Raj. 118
# Punj. 27 at pp. 29
# 6 MIA 88
# CBI v. V.C. Shukla, (1998) 3 SCC 410
# Pannalal v. Labhchand, AIR 1955 MB 49
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