Report No. 69

II. Previous Law

13.9. Previous law in India.-

The previous law on the subject was contained in section 43 of Act 2 of 1855, which was as follows:-

"43. Books proved to have been regularly kept in the course of business ' shall be admissible as corroborative, but not as independent, proof of the fact stated therein."

13.10. It has been state1 that the present provision in section 34, which declares that the entries shall not alone be sufficient to charge any person with liability, follows the Roman Law under which such entries were deemed semiplena probatio and the suppletory oath of the party was admitted to make it the full proof necessary to obtain a decree.

1. Field Commentary on the Evidence Act, (1966) Vol. 3, p. 1926.

13.11. Comparison with previous law.-

We have, while discussing1 section 32, already referred to this section of the Act of 1855. In section 34 of the present Act, the words "regularly kept" have been substituted for the words "proved to have been regularly kept" which occurred in the Act of 1855. It is evident that the Law embodied in section 34 of the present Act is not quite the same as was contained in section 43 of Act 2 of 1855.

The expressions "corroborative evidence", "independent evidence" and "substantive evidence", which are found in many of the reported decisions bearing upon section 34 of the present Act, are somewhat out of place in view of the wording of that section, have been handed down from the words "corroborative" and "independent" that appeared in section 43 of the Old Act (1855) and from those words as well as the word "substantive" that were used in the decisions thereunder.

The plain words of section 34 indicate that the section deals with all entries in books of accounts regularly kept in the course of business; in the first place, making them relevant whenever they refer to a matter into which the court has to enquire, and secondly, providing that, when such entries are sought to be used as statements for a particular purpose, namely, to charge any person with liability, then they shall not alone be sufficient.evidence for that purpose.

1. See discussion as to section 32(2).

13.12. Position under 1855 Act.-

Under the previous Act, account-hooks would not have been admissible to prove a fact, unless some other evidence tending to establish the same fact had also been given. "But the language" of that Act, as Markby has said,1 "differs very materially from that of the present Act. That language has not been adopted in the present Act. The only limitation in section 34 is that statements contained in documents of this kind shall not alone be sufficient to charge any one with liability. It appears to me that this change of expression has made substantial alteration in the law."

1. Belact v. Rash, (1874) 22 WR 549 (Per Markby, J.).

III. English Law and Roman Law

13.13. English law.-

As a general rule, in English common law, books of account are not admissible1 except when the entries are (a) against the interests of the maker, or (b) are made in the course of business, and in the discharge of duty. The further condition in both cases is that the maker of the entry must be dead. The Courts of Equity, however, used to act upon such entries, and, in 1852, the Chancery Practice Amendment Act2 empowered courts of Equity to direct, in cases where they should think fit, in taking accounts, that the books of account in which the accounts required to be taken had been kept, or any of them, "shall he taken as prima facie evidence of the truth of the matter therein contain-ed, with liberty to the parties interested to take such objections thereto as they may be advised."

1. (a) Price v. Torrington, (1703) 1 Salk 283; (h) Brockle-bank v. Thompson, (1933) 2 Ch 344 (352).

2. Section 54, Chancery Practice Amendment Act, 1852 (Statute 15 and 16 Victoria).

13.14. Thus, in England, if A sues B for the price of goods sold, an entry in A's shop-books, debating B with the goods, is not evidence for A to prove1 the debt. But an entry debiting C and not B with the goods, is evidence against A to disprove the debt2, as an admission.

1. Sayth v. Anderson, (1849) 7 CB 21; Best on Evidence, (1922), p. 79, para. 91.

2. Storr v. Scott, (1833) 6 C&P 241.

13.15. It may be noted that, under Roman law, the production of the account books of a merchant or tradesman, provided the account books were regularly and fairly kept in the usual manner, was deemed to afford evidence of the justice of the claim. (A similar principle was followed in France and in Scotland). The evidence was supplemented by the "Suppletory oath."

Under the Roman "Suppletory oath", the Judge, in his discretion, may tender this oath ex-officio to either party-usually the one in whom the judge has greater confidenc.- on the theory that when the evidence thus for submitted is entitled to some weight, but is insufficient to form a judicial persuation, the oath will afford the missing portion of proof1.

1. Pr. Code Civil, Art. 1367, Ital Codice Civile, Art. 2736, No. 2.

Back

Index

Next