Abdur Rahim, J.
1. The appeal arises in a suit to recover sums of money amounting to Rs. 8,000 from the defendant on the basis of certain dealings. The plaintiff is a dealer in cotton and had been doing business with Messrs. Giddam & Co. and afterwards with the New Berar Company. supplying therewith cotton. The defendant was at first a writer employed in Gaddam & Co.'s office and afterwards did business as a broker. Admittedly the defendant had dealings with the plaintiff; he used to pay moneys to the plaintiff by way of deposit and drew moneys from time to time. The dealings out of which this suit has arisen covered a period of 5 or 6 years, and the claim of the plaintiff is that, on taking accounts, he was entitled to the sum which he has claimed. The defendant's case, on the other hand, is that he was entitled to R3. 7,000 and odd and not that he owed anything to the plaintiff. The mode of dealings between the parties was of an extremely lax character. The defendant paying in sums of money from time to time never asked for any receipt or voucher for them. According to the case of the plaintiff the defendant drew sums of money daring the last 5 or 6 years on different dates; on some occasions he sent round chits to the plaintiff on which payments were made, but on the majority of occasions, payments were made on the defendant's personal request, there being no chits from the defendant authorising those payments. The learned Subordinate Judge has given a decree to the plaintiff as asked for in the plaint. The evidence in the case consists mainly of entries in the plaintiff's books of account. The defendant has not produced any accounts whatever, and the suggestion of the plaintiff is that he has accounts but has wilfully withheld them. The defendant denies that he has accounts but, he says, with reference to about 29 or 30 out of about 200 items, that he did draw those sums and that he recollected having done so, although he has no accounts or other records with which he could refresh his memory. The accounts filed by the plaintiff have been impeached by the defendant as fabrications. The accounts consist of ledgers and day-books. They are properly bound books and from outward appearance the books seem to be regularly kept. The parties fell out sometime in December 1915. Before that, admittedly, they were good friends and there cannot be the slightest doubt that they trusted each other. The case of the defence, if true, would mean that these account-books, covering a period of 6 years and containing accounts of the dealings not only of the defendant but of various other persons, have all been fabricated. It would also mean, on the admitted facts of the case,. that if they were fabricated it was done after the parties fell out, that is, after December 1915. Without saying that it is impossible, I should regard it as extremely improbable that books such as we have before us, have been paged, especially, without any sort of internal evidence whatever in the books themselves to bear out the defendant's suggestion that they have been concocted for the purpose of this case. No attempt was, in fact, made in the Court of trial, nor was any serious attempt made before me by Mr. T. Rangachariar who opened the case of the defendant (appellant) to show, from the character of the books or the entries, that the entries were either interpolated or that pages had been removed and new pages containing fresh entries has been substituted. There are, on the other hand, circumstances which would show that there is no substantial reason for doubting the garnishees and the bona fides of these books of account. They had been filed previously in connection with Other suits in other Courts, And the nature of the entries relating to the dealings between the plaintiff and the defendant would in itself make it extremely difficult for the plaintiff to get up false entries to support his case. There are only two entries with respect to which any attempt has been made by the defendant to contradict the plaintiff's books. I shall deal with them later and point out that no good arguments can be based on these two items. It has to be pointed out that the case was not satisfactorily conducted for either party in the lower Court, and the procedure adopted for proving the entries was not strictly in accordance with what the law required. The plaintiff's evidence is that he made all these payments with which the defendant is charged; whether he made payments with his own hand or through clerks or writers who made payments on his orders would not make any difference. He apparently attended to his business himself. He used to be present at the shop, except when he was away to some other place of business and plaintiff knew the way in which entries used to be made in the books of account by the different writers and accountants. In his examination-in-chief, in addition to the general statement that all the payments were made as entered and that he made the payments himself, he speaks to a large number of specific items of which he has personal recollection independently of the entries in the books; most of those items are of large amounts and he deals with them in detail in his examination-in-chief. While he was cross-examined with reference to these specific items, it does not appear that any attempt was made by the Pleader for the defendant to make out that as regards other items he could have had no personal knowledge or means of speaking to them in the way he did in his esamina-tion-in chief. No doubt it would have bean more in accordance with the proper practice for the Pleader for the plaintiff having asked him specifically about the items of which he had independent recollection, to have questioned him about the other items, which he said were actually paid to the defendant hut with reference to which he bad no independent recollection allowing him to refresh his memory with the entries in the books according to the provisions of Sections 159 and 160 of the Evidence Act. But no objection was apparently taken to the form of the question or the answer with reference to these latter items. We may take it, therefore, that the plaintiff purported to speak not only to the specific items mentioned by him but also to the other payments entered in the bock as having been made within his knowledge. We have also the evidence of two of the writers of the books and in their case we find that they were asked to. speak to the way in which the books were kept and not to the items specifically. I should have been disposed to take a more serious view of this mode of proving the entries but for the fact that the defendant's Pleader made no objection. Further the plaintiff has with the plaint filed a list of the items with respect to which the defendant is charged, that list being simply a copy of the entries in the books of account, so that the defendant has ample notice of the items to which the plaintiff and his witnesses must have been referring as. relating to the defendant's transactions in the Exhibits A and B series.
2. Then we have a number of items which has been clearly proved by evidence other than the entries by means of vouchers or chits, in addition to the oral testimony of the plaintiff. On the other hand, it is difficult to accept the defendant's statement that he kept no accounts whatever. He is a broker and had dealings not only with the plaintiff but with other persons, and it i& unlikely that he did not keep any accounts or any records of the transactions into which he entered as broker or of his other dealings. His case strikes me as somewhat extraordinary. He professes to remember 29 or 30 items extending over a number of years and ignores all the other transactions alleged by the plaintiff. All that he appears to have done was to pick out certain items which he felt could not possibly be resisted and about which no decent show of objection could be advanced by him and admitted them, not because he had any recollection whatever of these items. His case is that he never drew money, except on chits. On this point the evidence is absolutely clear to my mind that he used to ask the plaintiff to make payments on his account or get money from him himself without any sort of voucher whatever. There are several instances of that sort proved by evidence independently of the entries. The nature of his drawings would also suggest that he could not have been sending chits for every payment. We find, for instance, entries relating to small amounts like Rs. 2, Rs. 3 and Rs. 5, and there are entries to show that payments were made through himself or through other persons, some of whom were apparently peons employed in the office of Gaddam & Co. If there were chits in connection with those payments then the entries relating to them would not have appeared in the form in which they are made. The entries mention the names of persons through whom payments were made at the instance of and on behalf of the defendant. If the defence of the defendant was true he could easily have called those persons and shown that the entries were false. He has made no such attempt except in the two oases above mentioned but which I shall show do not bear out the suggestion of the defendant. It was strongly pressed upon us by Mr. T. Rangachariar that the plaintiff ought to have asked, for some voucher whenever he made payments, or that he ought to have taken the signature of the defendant whenever payments were made to him. And it was pointed out to us that the plaintiff did keep books for taking signatures of persons. As regards these books the evidence is not at all clear as to the nature of the transactions with respect to which the signature of parties used to be taken. That the plaintiff and the defendant, until they fell oat, reposed confidence in each other is abundantly clear. As already mentioned, the defendant does not declare that he obtained any receipts or vouchers for the amounts paid in by him from time to time. He must have trusted not only the plaintiff but mast have relied upon the mode in which the plaintiff kept his bocks of account and did business. And if the defendant trusted the plaintiff in that way, it does not surprise me in the least that the plaintiff should have made payments without insisting on vouchera on each occasion. I may here mention some of the larger items which must be taken to be proved by evidence independently of the entries, for instance the item of Rs. 1,391.8.53. The case of the plaintiff is that he borrowed from the office of Messrs. Gaddam & (Jo. Rs. 1,500, and out of that amount gave this sum to the defendant. It was suggested by Mr. T. Rangachariar that it is a false story that he borrowed any money from Messrs. Gaddam & Co. If there was any foundation for this suggestion nothing was easier for the defendant than to produce the books of his employees and to prove the falsity of the plaintiff's case.
3. As regards the transaction relating to mortgage Exhibit E with respect to which a sum of Rs. 496 was paid by the plaintiff, the case of the defendant is that, it was paid not to him but to his brother. This payment is supported by the receipt Exhibit D.1] the payments being made at the shop of one Ambalavana Pillai, and P. W. No. 5 proves the handwriting of this man in Exhibit D. If the payment was not made at the instance of the defendant, and it was a dealing directly between the plaintiff and the plaintiff's brother, one would have expected the defendant to examine his brother and prove the falsity of the plaintiff's case. No such attempt has, however, been made. I might refer to the transaction evidenced by Ex-hibit A as showing that it is unlikely that the plaintiff owed large sums of money to the defendant in 1915 or thereabout as related by him. The defendant obtained from the plaintiff assignment of an other for Rs. 4,000 and he paid down Rs. 1,000 and agreed to pay the balance of Rs. 3,000 before the Sub-Registrar. As he failed to pay the balance, the transaction fell through and the plaintiff had to refund Rs. l.000 to the defendant If the defendant's case ware' true, it was not likely that he would pay Rs. 1,000 if as a matter of fact Rs. 6,000 or Rs. 7,000 were owing to the plaintiff.
4. I shall deal now with some of the criticisms made on behalf of the defendant as to the corrections of certain entries. Under the transaction which is represented by Exhibit C 5 that is a chit on which, according to the case of the plaintiff, certain payments were made, Rs. 100 was to be paid to some person not mentioned therein. The suggestion on behalf of the defendant that Exhibit 0 5, which he alleges has been wrongly translated, means that the payment was to be made on behalf of the defendant to the plaintiff himself, is not borne out. If that were the correct interpretation, then one would have expected that the man who was to pay the money to the plaintiff would be mentioned Taking the document as it stands, the criticism on behalf of the defendant is that the entry on the 10th June 1913 is not of Rs. 100 but of Rs. 80. There is also a further entry of Rs. 25; that would make up Rs. 105 and not its. 100. There is to that extent discrepancy between Exhibit C-5 and the entry in plaintiff's book. Bat I am not satisfied that the discrepancy could not have been explained if the plaintiff or any of the accountants who had knowledge of. the matter was asked about it. But the defendant's strongest criticism is with reference to the entries dated 3rd April and 17th April 1914. The first one reads 'Debit, taken and paid by S.A. for P.K.S. Rs. 23,' and the latter is to the effect 'Debit for P.R.M.S. Rs. 373.12-4.'
5. The defendant has examined D. Ws. Nos. 3 and 4 who are employed in the P. K.S.A.A. firm and P.R.M. (5. firm respectively, who prove that on the dates mentioned there are no entries in the plaintiff's book. But these two witnessed were examined, after the plaintiff had closed the case, and neither the plaintiff's nor any of his witnesses' attention had been specifically drawn to nor were they asked any questions as to the nature of these transactions that might not in itself be a sufficient answer, if the entries themselves were quite clear and unambiguons which we do not think they are. Both these entries are worded differently from other entries in cases where payments were made in to a particular person or term at the instance of the defendant. This entry of the 3rd April is that Rs. 23 was paid by the plaintiff 'for' P.K.S. and Similarly the entry of the 17th is that Rs. 373-12 4 was debited 'for' P.R.M.S. As Mr. K. Srinivasa Aiyangar, the learned Vakil for the respondent, suggested it might be that money was taken for payment to the said two firms by the defendant himself or some one on his behalf and not actually paid on those dates or not paid at all. In the absence of any question put to the plaintiff or the witnesses asking them to explain these transactions, I do not think it would be fair to accept the evidence of the defendant's witnesses Nos. 3 and 4 showing that the entries in question in the plaintiff's books are false. I am satisfied on considering the evidence as a whole, in spite of the irregular way in which the cape of the parties was conducted in the lower Court and the unsatisfactory manner of proving the entries in, the books of account which were not specifically put to the plaintiff or his witnesses, that the accounts were duly kept in the regular coarse of business and that the entries represent true and honest transactions.
6. Further as regards certain items, there is corrobarative evidence in the shape of vouchers and the circumstances of the case to which I have alluded also show that the items mentioned in the entries in question are true and genuine and represent a real transaction.
7. But, it is argued on behalf of the appellant' that the evidence as it stands is not sufficient in law to found a decree on, against the defendant. Section 34 of the Evidence Act lays down that the entries in books of account, regularly kept in the course of business, are relevant, but such a statement will not alone be sufficient to charge any person with liability. That merely means that the plaintiff cannot obtain a decree by merely proving the existence of certain entries in his books of account, even though those books are shown to be kept in the regular course of business. He will have to show further by some independent evidence that the entries represent real and honest transactions and that the moneys were paid in accordance 'with those entries. The Legislature, however, does not require any particular form or kind of evidence in addition to entries in books of account, and I take it that any relevant facts which can be treated as evidence within the meaning of the Evidence Act would be sufficient corroboration of the evidence furnished by entries in books of account, if true. I have already pointed out that, with reference to certain specific items, there is ample corroborative evidence, and I have also mentioned the circumstances which would go to show that the transactions represented by these entries are true and honest. I am inclined to think that, apart from the oral statement there is (sufficient corroboration of the entries in this case. Then I do not find that sufficient reason has been shown for not accepting the statement of the plaintiff in his examination in chief, that all the items in the accounts were really given to the defendant, meaning that all the payments as entered were actually made to the defendant. This is not a mere isolated statement. In the very beginning of the examination in-chief he says: 'The defendant used to take money without giving obits. If the defendant had personally asked me to pay the money to anybody, I used to pay without taking the signature of the person who takes the money. When I paid money to defendant directly, I never took his signature or got any voucher. The defendant has not made any payment over and above what I have entered in the accounts. 'His case was, according to his evidence, that it was he who used to make the payments. This does not necessarily mean that he used with his own hands always to hand over money to the defendant or his messenger, but only that the payments were made under his personal supervision or direction. That is the case he sought to make out. It might be that if the defendant bad made an attempt he might have been able to show by cross examination that this was an improbable statement and should not be accepted, but I do not find that he really made any such attempt. It is possible that the plaintiff did not have any direct recollection of all the items. He had independent recollection of some items, and as regards others he might have remembered them on looking into the accounts. This is suggested by a statement made by the plaintiff in his cross examination. He says with reference to certain entries: ''These I remember independently even without looking into accounts.' As regards the items which he did not remember in that way, I do not find that the cross -examination was directed to show that it was improbable or unlikely, having regard 'to the lapse of time, or the course of business adopted by the plaintiff, or that be could not be relied upon to remember those items even on reference to the entries. It is quite true as pointed out by the learned Pleader for the respondent, that so far as it appears on the record, the plaintiff did not in so many words say that, as regards the items of which he had no independent recollection, he was sure that they were true items on examining the entries which were made and of which he had knowledge at the time or soon afterwards. That would have been the correct way of examining the plaintiff on this point, but the Pleader who conducted the case for the defence neither raised any objection to his making a general categorical statement that all the items in the accounts were really given to the defendant as entered in the accounts, nor did he attempt by cross-examination to show that these general statements could not be accepted. Having regard to the way in which the plaintiff was cross-examined, I am unable to say that the statement as regards the entries in the books of account generally should be rejected on grounds of improbability, especially as I have not the slightest hesitation in holding that the accounts of the plaintiff are genuine and bona fide and that the admitted facts and circumstances point to the truth of the plaintiff's case and the falsity of the defendant's case.
8. I do not propose to go into all the oases cited at the Bar with reference to Section 34 of the Evidence Act. There is no difficulty in ascertaining what the enactment means, but the difficulty lies in applying it to the facts of a particular case. Much reliance was placed on behalf of the appellant on the ruling of the Privy Council reported as Baboo Gunga Persad v. Baboo Inderjit Singh 28 W.R. 390. But, apart from the facts of that case, all that their Lordships laid down was that an entry in the books of account regularly kept in the course of business is merely corroborative evidence. To the same effect' is the ruling reported as Queen v. Hurdeep Sahoy 23 W.R. 27 Cr. I might here point out that the present Evidence Act does not say that an entry is merely corroborative evidence, it is substantive evidence, though by itself not sufficient to charge a person with liability. I do not find that the oases reported as Sorab Jee Vacha Ganda v. Koonwur-Jee Manik-Jee 1 M.I.A. 47 and Hingu Miya v. Heramba Chandra Chakravarti 8 Ind. Cas. 81 help the appellant any further. With reference to the latter, emphasis is laid on the fact that the learned Judges then say that each particular entry must be proved. No doubt that is the correct proceeding. But as I have already pointed out, it is merely a matter of mode of proof and, as the defendant raised no objection to the way in which the entries were proved in the lower Court, I do not think anything turns upon this point. We hope, however, that in future when entries in books of account are sought to be proved, strict attention should be paid to the method of proving them as pointed out in Hingu Miya v. Heramba Chandra Ckakravarti 8 Ind. Cas. 81, and further that the entries themselves ought to be marked as Exhibits and not the books. In Jasu-ant Singh v. Sheo Narain Lal 21 I.A. 6 : 8 Ind. Dec 101 we find that their Lord-' ships discuss at length not only the genuineness of the entries in the books of account, but also the character of the entries themselves as to whether they represented a real transaction with reference to certain items which were proved by evidence independently of the entries, and rely upon the general circumstances of the case showing that the accounts were bona fide and true. They observe: 'Their Lordships need not go through other items in the books', nor deal with the evidence showing that the defendant had bill transactions with other people. The oases they have examined are sufficient, in the entire absence of countervailing evidence, to establish three propositions. They prove that the defendant's sweeping denials of his connections with bill transactions are not true, and thereby they materially shake his credit. They prove that he drew hundis on Gobind Dass and sold them to the plaintiff, thereby displacing the defendant's flat denials of dealings with the plaintiff, and meeting the improbability that he should have drawn upon a house unknown to him, by proof of the fact that he did so. They lead to the belief that the plaintiff's books are authentic and honest, and his gomasta's evidence true, so that the course of the dealing alleged by the plaintiff terminating in the six hundis now sued on is supported.' Here also enough has been proved to show that the defendant's denial that he ever drew money except on chits is untrue and the course of dealings between the plaintiff and the defendant showed that the transactions took place as evidenced by the entries. I may also here refer to the decision in Dwarha Das v. Sant Bakhsh (1895) A.W.N. 235. 'With reference to the value to be attached to the plaintiff's general statement that the items mentioned in the entries were paid to the defendant, the learned Judges point out that it was the duty of the defendant to challenge the statement, to cross-examine with reference to it and show that that it could not be believed. I am, therefore, satisfied that the judgment of the Subordinate Judge is right and must be upheld. I would dismiss the appeal with costs.
9. I concur generally with my learned brother and I, therefore, do not thick it necessary to follow him in his detailed statement of the evidence. But I desire to say a few words regarding the oases, in which it was alleged that there was no corroboration for the various items of the plaintiff's claim except the accounts and regarding which the question arose whether other evidence was in fact given. If no other evidence besides the accounts were given, however strongly those accounts may be supported by the probabilities and however strong may be the evidence as to the honesty of those who kept them, such consideration could not alone with reference to Section 34 of the Evidence Act be the basis of a decree. In Jaswant Singh v. Sheo Narain Lal 6 Sar. P.C.J. 404 the Judicial Committee no doubt gave a decree after testing the entries in the accounts before it with reference to the correspondence regarding certain entries in those accounts and other independent evidence regarding them. But I do not think that that decision is in any way inconsistent with the general proposition enunciated regarding Section 34. In that case there was in fact some direct evidence as to the making of the hundis which were in question and their Lordships, no doubt, said that the direct evidence was quite untrustworthy. They must presumably have meant that notwithstanding its intrinsically untrustworthy character they were prepared to act on it in view of the otheroiroum-stances of the case and the direct evidence as to particular items.
10. The question is whether the evidence of the plaintiff can be accepted and taken as a basis for the decree, supplemented as it is by the evidence of the accounts. The defendant contends that the plaintiff's evidence, if rightly construed, was not direct evidence at all and what he said really amounted only to inference from the account entries, and that he should not be understood as saying that he himself had any knowledge of the payments whatever independently of the presumptions which he was drawing from the entries in the accounts regarding them. The plaintiff's evidence in chief consisted first in a statement 'when I paid money to defendant directly, I never took his signature or got any voucher.' There were then various particular references to particular payments, which he prefaced with the words 'I paid.' Lastly there was the statement: 'All the items in the account were really given to defendant and entered in the accounts.' Those are his statements in chief. If the defendant's were the proper interpretation of plaintiff's evidence, I should certainly hold that it did not afford the corroboration which the law requires.
11. No doubt, Section 16C of the Evidence Act says: 'The witness may also testify to facts in any such document as is mentioned in Section 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document', and it was suggested that in any case the plaintiff on the one hand, must be presumed to have correctly recorded the facts in his accounts, although on the other he did not say so explicitly, As regards the section, I may observe, first, that the use of the word 'sure' is, I believe, unique in the Evidence Act. It does not seem to me that the decree of conviction postulated by the sue of that word can be treated as equivalent to any, on which the witness may choose to say that he is sure, whether or not it is too fantastic or illogical to commend itself to reasonable men. The meaning must be, I think, that the witness satisfies the Court with reference to ordinary probabilities of his right to be sure that the record relied on by him is correct. Then again there is the reference to Section 159, which provides that the witness may refer to any such writing made by any other person and read by the witness within the time aforesaid', if, when he read it, he knew it to be correct, the time aforesaid being the time within which the Court would consider if likely that the transaction was fresh in his memory. Now if the case were only that the plaintiff must be supposed to have been speaking with reference to the accounts, it would be material that he said nothing definite as to his having looked into the accounts within the time above referred to or as to his reasons for being sure that they were a correct record. But that is not what the plaintiff said, and it is a very material point that there was no suggestion resembling that now made by the defendant in cross examination. The defendant in fact made no objection to the plaintiff making the statements he did both generally and in detail. There were no doubt some questions put to the plaintiff with reference to his residence, as to which he admitted that he stayed in Tuticorin and also in other villages 16 miles distant and that the suit transactions took place in Tuticorin. He said also, that his agents transacted business in his absence. But he said nothing at that point regarding the particular payments which are in dispute. He said only 'I was present when I made those payments to the defendant.' We have been referred to a number of payments which are the subject-matter of the appeal and there is no reason for adopting any such un-natural interpretation of the evidence. There was nothing farther in the plaintiffs cross-examination or in the cross-examination of one of his accountants, P. W. No. 2. P. W. No. 3, another accountant, was, no doubt, asked a question in reply to which he said: 'I must refer to the account to say whether all payments were made by me or by plaintiff. I cannot say anything from memory.' But there was no suggestion as regards the payments, if any, which were rot made by him, the plaintiff having been present. In these circumstances it does not seem to me that there is any question of reliance by the plaintiff on Section 160. The plaintiff's evidence, as I understand it, was simply that he made the payments himself. There is nothing in the case regarding the plaintiff's course of business which enables me to form any opinion as to the probability of all his statements. It is not for us to speculate as to what stringent cross-examination might have disclosed. The circumstances of the case in fact resemble those reported as Dwarka Das v. Sant Rakhsh (1895) A.W.N. 235 To adopt the language used there, the plaintiff's evidence should receive the favourable construction which would entitle us to treat it as substantive evidence in this case and not to conclude it as evidence which was inadmissible.
12. So treating it we have a foundation, on which the decree in favour of the plaintiff can be passed, supplemented by the entries in the accounts. I agree that he is entitled to a decree as regards the items in connection with which it was contended that no direct evidence was available. I agree with the decree proposed by my learned brother.