Raghavendra (student) 09 December 2008

EVIDENCE AND CONTRACT LAW

SUPPOSE B HAS ADVANCED CERTAIN SUM MONEY TO Z,THROUGH A CHEQUE,AS A LOAN,WITHOUT ANY DOCUMENTRY EVIDENCE AT 1%RATE OF INTEREST PER MONTH.AND B MAKES NOTE OF SAME IN HIS DIARY, AFTER EXPIREY OF ONE YEAR,BOTH PRINCIPAL AND MONTHLY INTEREST OF THE AMOUNT ADVANCED ARE DUE FROM Z,WHICH HAS BEEN ALSO RECORDED BY B IN HIS DIRAY .AFTER SOME TIME BOTH B AND Z HAVE EXPIRED. AND Z'S SON AGREES TO PAY ONLY HALF OF THE AMOUNT ADVANCED TO B's SON THROUGH A CHEQUE. AND DISAGREES TO PAY REST OF AMOUNT .CAN B's SON SUE Z's SON FOR REST OF THE AMOUNT .ON THE BASIS OF ENTRIES MADE IN B's DIARY AND ALSO CHEQUE CLEARED IN A'PASS BOOK OR BANK ENTRY UNDER INDIAN CONTRACT ACT .AND WHETHER DIARY IS VALUABLE EVIDENCE UNDER SEC 34 OF INDIAN EVIDENCE ACT ,ACCOMPANIED BY ENTRY IN THE PASS BOOK .

THANK YOU

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8 Replies

Jayesh Bheda (Advocate) 09 December 2008

S. 34 of evidence is quite clear

"Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.

Illustration

A sues B for Rs.1,000, and shows entries in his account books showing B to be indebted to him to this amount. The entries are relevant but are not sufficient, without other evidence, to prove the debt."

A diary cannot be considered as "books of account, regularly kept in the course of business" and therefore not admissible accordingly. There is a judgment of the Apex court court in HAWALA Scandal, where in diary of the accused , produced by CBI, was not considered as the books of account and was not relied upon.

Regards,

K.C.Suresh (Advocate) 10 December 2008

I agree with Jayesh bai. But there is evidence for the encashment of cheque to opposite party. That prooves the payment. A corresponding entry in payers personal diary. That corroborates the payment again. Subsequent entry of interest etc also corroborates the non-payment. But this diary won't cpome under S.34. But the case can be filed from another angle as satted above. To conclude dear Raghavendra its a 65-35% chance case. 65 on your side i hope.

Jayesh Bheda (Advocate) 10 December 2008

Thanks Suresh for concurring views! However I had limited my comment to s.34 only! On the facts , I agree with you.

Ajay kumar singh (Advocate) 11 December 2008

You have got a very poor case.Without any express contract no interest can be charged.So far entries of the diary are concerned,Mr.Suresh is quite clear on this point.

Raghavendra (student) 14 December 2008

RESPECTED SIR,

SEC 34 OF EVIDENCE ACT SPEEKS ABOUT RELAVENCY , THAT IS ENTRY IN BOOKS OF ACCOUNTS WHEN RELAVENT .I WANT TO KNOW THAT CAN THIS CASE BE WON FIRSTLY BY TAKING ENTRY PASSED IN DIARY AS SECONDRY EVIDENDE, AND SECONDALY CHEQUE CLEARED IN PASS BOOK AS PRIMARY EVIDENCE . OR SINCE NO CONSIDERATION HAS PASSED BETWEEN Z'SON TO B'SON ,CAN Z' SON ABSOLVE FROM THE LIABILITY . OR SINCE Z'SON HAS MADE PART PAYMENT THOUGH CHEQUE TO B'SON THE CONCEPT OR ESPOPPLE APPLY

Raghavendra (student) 14 December 2008

RESPECTED SIR

THANK YOU

Sushil Kumar Bhatia (Advocate) 18 December 2008

Dear,

Entries in perrsonal diary if in the handwritng of the 'z' is a relevent document in this transaction suppose a tenant is paying rent and landlord is not issuing rent receipt to him but rent accepted by him were endorsed in the diary of the tenant by the landlord can be relevent document of payment of rent in my view other circumtances and evidence proving transaction were made between the parties ,as such,diary is relevent document .