Statements made under Special Circumstances

Author: Prasun Sarkar, KIIT

Statements made under Special Circumstances

There are two general classes of statements that are dealt with, firstly entries in books of accounts regularly kept in the course of business and secondly entries in public documents, or in documents of 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 the deceased person, but courts of equity acted upon the principles admitting account books in Evidence in cases in which the vouchers have been lost, and the principle has been adopted 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 in certain cases it may be used as a shred of corroborative evidence. The entries alluded to in Section 34 is 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 to carry the 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.

Practically applying this rule in India, their lordship in Privy Council said, “no Evidence was brought before the provincial court or the court of Sadar Dwani Adalat, 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,^[1] they observed 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^[2], one of the plaintiff’s witnesses, Khimiji Thakersi, stated in cross-examination that he had formerly been employed by Chusmanbhai Dhurumsey at intervals of a 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 judgment 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[3], 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 afterward, make them irrelevant.

The Expression “book of accounts” means books in which merchants, traders, or businessman; generally keep their accounts, i.e. statements of debits or credits 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 a book of accounts, 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 a 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.

The account book in which balances are not struck for six days consecutively, is not a document which would inspire 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^[4], 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, landlords, tenants etc. A certain number of pages are located in each account.

The underlying principle of  Section 35 is public record. The evidence is said to be acceptable if the public or other official book is registered or recorded and preserved by the public officer in an act of official duty. Such documents or public records have got an evidentiary assessment. Before making any document admissible the obligations must be fulfilled; first, an entry must be kept in check in public or official record, second the entry must be prepared by a public servant, third the entry must be prepared by a public servant in satisfying his official duties and last the entry must state a fact in issue or relevant fact.

Under this section, when it is the duty of a public officer to make certain entries in any public or other official book, it is admissible in evidence to prove the truth of the facts so entered, as well as the fact that entries were made by such officer. The reason for this rule is that when a public servant makes an entry in the discharge of his official duty, the probability of its being truthfully recorded is quite high. It is presumed in such cases that the officer is discharging his duty with accuracy and fidelity.

In Anita v. Atal Bihari^[5], it was decided by the Madhya Pradesh High Court, it was held that a birth entry in the Register of Births and Deaths can be taken as the basis for determining the age of the accused. It was also held that the opinion of a radiologist cannot be preferred over such an entry. 

In a case decided by the Supreme Court, a School Certificate was produced as proof of the age of the accused. However, the Certificate did not mention the name of the school from where the transfer certificate was obtained and on the basis of which certificate the accused was admitted to the school. In the circumstances, it was held that the School Certificate could not be relied upon for proving the age of the accused.^[6]

Statements in maps and charts (S. 36):

Statements (of facts in issue or relevant facts) made in—

(i) Published maps or charts, generally offered for public sale, or

(ii) Maps or plans, made under the authority of the Central Government or any State Government as to matters usually represented or stated therein are themselves relevant facts.

Statements in Acts of Parliament of England or India (S. 37):

Statements of any facts of a public nature as to the existence of which the Court has to form an opinion made in a recital contained in any Act of Parliament of the U.K. or in any Central or Provincial Act or a State Act are relevant facts.

Law of a foreign country (S. 38):

When the Court has to form an opinion as to the law of any country, — any statement of the law of that country contained in a book printed or published under the authority of the Government of such country and any report of a ruling of the Courts of such country, is relevant.

^[1] 6 Ind Cas 180.

^[2] (1885) ILR 9 Bom 373.

^[3] (1900) ILR 27 Cal 118.

^[4] AIR 1990 Delhi 51, 38 (1989) DLT 445.

^[5] 1993 Cri. L.J. 549.

^[6] Jagtar Singh v. State of Punjab, 1993, Cri. L.J. 2886.