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Report No. 69

V. Interpretation and Procedure

13.21. Case-law as to important ingredients.-

Case law on the section illustrates and elaborates what is meant by some of the important ingredients of the section.-such as, "books of account", "regularly", and so on. These judicial decisions do not, however, seem to require any modification in the form or substance of the section.

13.22. Proper procedure.-

There seems to be a misconception in some of the subordinate courts as regards the procedure for utilising the entries to which section 34 applies. In this connection, we may refer to a Nagpur judgment1, where it is pointed out that if the witness producing the entry cannot supplement it with his personal knowledge, then it is a waste of time to have its contents repeated out of his mouth. On the other hand, if, after refreshing himself with an entry, the witness is able to remember the details of the transaction, he may 'certainly read the entry for the purpose of refreshing his memory; but this is not a case of evidence under section 34; it would fall under section 159, so far as his oral evidence is concerned.

1. Mukunda Rain v. Daya Ram, AIR 1914 Nag 44 (47).

13.23. Absence of entry.-

The question of absence of entries may be discussed. It has been held in Calcutta in R. v. Grees Chunder, 1883 ILR 10 Cal 1024, that though the actual entries in books of account are relevant to the extent provided by the section, such a book is not by itself relevant to raise an inference from the absence of any entry relating to a particular matter.

13.24. With respect, it is suggested that this decision, if it is to be taken to have ruled that the fact of the absence of an entry is not evidence at all under any section of the Act, is not correct. It has not, in such sense, been followed1.

1. Sagurmull v. Manrai, (1900) 4 CWN ccvii.

13.25. In Ram Persad v. Lakpati Koer, 1903 ILR 30 Cal 231 (247) (PC), during arguments. Lord Davey referred to the above case-R. v. Grees Chunder, 1883 ILR 10 Cal 1024,-and Lord Robertson said: "The Act applies to entries in books of account, but no inference can be drawn from the absence of an entry relating to any particular matter." But this remark of Lord Robertson must be taken to have been made with reference to the preceding argument of Counsel, where Counsel was discussing section 32(2) and section 34.

13.26. Absence of entry-effect of.-

Obviously, section 34 does not apply where there is no entry in the books. Evidence that there is no entry is not, therefore, admissible under this section. However, such evidence may be admissible under other sections of the Ac.- as for instance, sections 9 and 11. Thus, in a Calcutta case1, evidence having been given of the visit of M to Calcutta, which he denied, the letter's son was called by the other party to corroborate M's statement. He deposed that it was usual when a partner of his firm (to which both he and M belonged) made a journey on the firm's business, to enter in the account-book the expenses of such journey, and he was allowed to produce the account-books of his firm and to state that there was no entry of expenses relative to such alleged visit.

1. Sagurmull v. Manrai, (1900) 4 CWN ccvii.

VI. Conclusion

13.27. Only verbal change needed.-

In view of the position discussed above it is not necessary to amend section 34 in substance. However, a verbal change is required in the section. Where the section contains the words "such statement", the proper words an "such entries", and we recommend that this drafting change should be made.

Indian Evidence Act, 1872 Back

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