1. In the present case the documents produced by the witness Damodhar (D.W 12) were tendered in the first Court and admitted in the lower appellate Court as books of account kept in regular course of business entries wherein were admissible under S. 34. If therefore the documents were not proved to be account books regularly kept in course of business their admission was illegal, because proof of the entries therein would be in violation of Section 21 of the Evidence Act. There appears to be so much misapprehension 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. 34, therefore enacts that entries in books of account 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 a person making them is an exception to the general rule laid down in S. 21 of the Act. Such entries were not 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 business by deceased persons: (Taylor's Evidence, p. 709; Best's Evidence, para. 501, 503; Roscoe's N.P Evidence, 60-62). But equity Courts have gradually enlarged the exception, and regularly kept books of account have been accepted by them as evidence for many years, and now the rules of the Supreme Court recongize the justice and expediency of this practice: cf. O. 30, R. 7, of the rules of the Supreme Court 1897, as amended by the rules of July 1902. It is recognized that to use a system of regular accounts 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 accounts. In the case above cited their Lordships of the Privy Council found “a cash book, a bill book, and a ledger, all referring to one another.” An examination showed correspondence to be exact in some items, and they remarked: “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 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. These essentials require to be carefully observed in this country where written fraud and forgery are extremely common and the responsibility of keeping accounts for the benefit of others is honoured in the breach rather than the observance, e.g, by money-lenders, mortgagee in possession, lambardars who collect for co-sharers, persons in possession of landed property whereof the title is in dispute or litigation.
4. First, then, what is a “book”? In its ordinary sense it signifies a collection of sheets of paper bound together in a manner which cannot be disturbed or altered except by tearing apart. The binding is of a kind which is not intended to be moveable in the sense of being undone and put together again. A collection of papers in a portfolio, or clip, or strung together on a piece of twine which is intended to be untied at will, would not, in ordinary English, be called a book. But so narrow a signification would not do in India, where accounts are often kept, on sheets of paper laced or threaded together in a manner which allows removal of any sheet at any time by the untying of a knot. Of this class are the bahis of practically every Marwari banker in India. The definition of “book” given in the English Copyright Act, 1845, S. 3, is that the term means and includes “every volume, part or division 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 shall be permanent and the papers used collectively in one volume. It is easier however to say what is not a book for the purposes of S. 34, and I have no hesitation in holding that unbound sheets of paper, in whatever quantity, though filled up with one continuous account, are not a book of account within the purview of S. 34. The documents admitted on to this record by the lower appellate Court are not a book or books, and therefore the entries upon them were illegally admitted in evidence.
5. When the article produced is a book we have still to see that it is a book of account, for that is the only kind of book to which the section opens the door of relevant evidence. I am alive to the dictum of the Privy Council in Deputy Commissioner of Bara Bankie v. Ram Pershad [1900] 27 Cal. 118 , 26 I.A 254 , 4 C.W.N 417 (P.C) disapproving of the dictum West, J., in Munchershaw Bezonji v. New Dhurumsey Spinning and Weaving Company [1879-80] 4 Bom. 576, as giving too limited a meaning to the section. But there is nothing in that case which gives any undue extension to the word “account” beyond its usual significance. To account is to reckon, and I am unable to conceive any accounting which does not involve either addition or subtraction or both of these operations of arithmetic. A book which contains successive entries of items may be a good memorandum book; but until those entries are totalled or balanced, or both, as the case may be, there is no reckoning and no account. In the making 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 filed as documentary evidence of the facts stated in it in favour of the person making the entry if he is a party to the suit. It would be excluded by S. 21 of the Act, and S. 34 provides no exception in favour of it. The reason for such differentiation between a private diary and a private account is manifest.
6. An account, regularly kept, necessarily results in a continuity which makes fraudulent addition extremely difficult and dangerous: it is a chain of forged links into which the subsequent interpolation of a link of forgery without discovery is almost impracticable. The man who wishes to defraud his neighbour generally avoids keeping regular accounts, or, having kept them, suppresses them. The labour of weaving falsehood with truth in regularly kept accounts is too great and continuous to be popular, because of the mathematical connexion running through them. But these safeguards of truth are entirely absent in the most regularly kept of private diaries, and subsequent interpolations, to meet an unexpected demand and facilitate fraud, are generally possible without difficulty and danger of discovery. It is clear that the legislature, which guides itself by human experience, had such considerations before it when it enacted, by S. 34, an exception to S. 21, in favour of books of account. I am therefore of opinion that the legislature did not intend to include in that category any record in which there is no process of reckoning. Therefore, a book which merely contains entries 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 formality and the checks against fraud secured by the method of keeping them; but that is not to be confused with admissibility. A single account-book, however simple, if regularly kept, will be admissible. As regards admissibility, S. 34 makes no difference between the cash books and ledgers of a large bank, and the day book of a house keeper. The difference lies in the weight to be given to the entries therein. But, where the fact of regular maintenance and general accuracy of account-books is not admitted, it must be formally proved. In Dwarka Doss v. Jankee Doss [1854-57] 6 M.I.A 88 , 19 E.R 33 their Lordships of the Privy Council pointed out that “the regular proof of books and accounts requires that the clerks who have kept those 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.” In the present case nothing of the kind has been done, and the record of the first Court endorsed on the accounts that they are unproved is a perfectly correct record. There is frequently confusion in the Subordinate Courts as to how an account-book should be proved and used under S. 34 aforesaid. It is a common practise to call a witness and examine him, as to the particular items sought to be proved, by getting him, as it were, to read them out to the Court, sometimes when he has no personal knowledge concerning them and they are not in his handwriting. Meanwhile, it is taken for granted, without 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. Having now refreshed my memory from an entry made at the time in my master's cash-book I can state that the date was 15th June 1910.” This is not a case of evidence under Section 34 of the Evidence Act. But suppose the account book had been produced and the entry tendered in evidence. Then the deposition of the clerk might have been in these terms: “I know the defendant. I remember that he came to my master's shop and borrowed some money last year. I cannot remember the amount lent or the date of the loan though I saw the money paid. I also saw another clerk make an entry of the loan in my master's cash day book. This book (Ex. A) shown to me is that in which the entry was made. It is regularly kept. Transactions are entered as they occur, and the book is totalled and balanced every day, and entries carried into a ledger once a week. This book (Ex. B) is the ledger for last year and the entry of defendant's loan should be in it.” Upon this testimony the Court would be justified in admitting the entries tendered by the plaintiff and using them to corroborate the witness, and prove the amount and date of the loan. It would be waste of time and miss the point of S. 34 to get the witness to give oral evidence of the contents of the entries by reading them out. Once they are qualified for admission under S. 34, the Court itself can read them and use their contents for its information.
9. For the reasons I have given I hold that the documents admitted by the lower appellate Court are not account books at all, and there is no proof that they were regularly kept. Their admission in evidence was therefore illegal, and the finding of the lower appellate Court on the basis of them is bad. That finding is therefore set aside, and the finding of the first Court restored on the question of the alleged repayments for which defendant claimed credit.
P.N/R.K
10. Appeal allowed.