DAVE, J. - (1.) THIS is a second appeal by the defendant from judgment of the Civil Judge, Sirohi, dated 28th July, 1952, upholding the decree of the Munsiff, Sirohi, dated 29th January, 1952.
(2.) THE facts giving rise to it are, that there is a joint family firm which carries on business in gold and silver at Sheoganj, in the name of Shah Magaji Khubaji. As managers of the said firm and also in the name of the firm, the plaintiffs Shah Achaldas and Kundanmal brought a suit for Rs. 1659/4/-against the defendant Shah Himmatmal on the basis of their account-books. It was averred by the plaintiffs that the defendant purchased and sold gold mohars at Sheoganj through the plaintiffs' agency. Business transactions between the parties related to three vaidas, namely, of Bhadwa Vadi 30, Asoj Sudi 15, and Asoj Vadi 30 of Svt. 2001. THE dates were calculated according to Gujrati system. According to the plaintiff, the defendant suffered in the first transaction, a loss of Rs. 1187/1/-, in the second transaction, he further suffered a loss of Rs. 1692/3/-, and in the third one he again suffered a loss of Rs. 1956/4/. It was stated that the defendant paid Rs. 187/8/-, Rs. 892/3/- and Rs. 1256/4/-towards the said losses respectively, and that Rs. 2500/- thus remained outstanding against the defendant. It was also stated that the defendant further paid an amount of Rs. 500/ -. on Kati Sudi 9 and that Rs. 475/- and Rs. 126/-were credited to his account on account of gains in other transactions. Thus, after deducting Rs. 1,101/- from the amount of Rs. 2500/-, the defendant was still liable to pay Rs. 1,399/- to the plaintiffs as principal amount. To this the plaintiffs added Rs. 260/4/- for interest and prayed for a decree for Rs. 1,659/4/ -. The defendant admitted that he and transactions with the plaintiffs' firm for the three dates mentioned above, but it was denied that there was a loss or that he was liable to pay anything to the plaintiffs. It was further contended that the transactions were of a wagering nature and for that reason also the plaintiffs were not legally entitled to recover any amount from the defendant. The trial court framed necessary issues and after recording the evidence of the parties, to the decision that the defendant had failed to prove that the transactions were of a wagering nature. It was also found that the defendant was liable to pay Rs. 1,659/4/- to the plaintiffs and therefore, the suit was decreed for that amount. Against that decision, the defendant went in appeal to the Civil Judge, Sirohi. The plaintiffs also filed cross-objections for interest pendente lite and also for future interest. The appellate court dismissed the appeal and also the cross-objections. It is only the defendant who has come here in appeal. The points for determination in the trial court as also in the first appellate courts were: (1)) Whether the plaintiffs were entitled to get Rs. 1,659/4/-from the defendant, and (2) Whether the transactions between the parties were of a wagering nature. Both these questions were those of fact and, therefore, a second appeal could not lie. In fact, this was the preliminary point raised by learned counsel on behalf of the respondents, but it was contended by the appellant's advocate that the decision of both the courts on the first point was based on no evidence and, therefore, this was a question of law. It was further contended that the decision on the second point was also arrived at by disregarding the defendant's evidence. It has been pointed out by the appellant's advocate that in the documentary evidence produced by the plaintiffs, Exs. 1, 2 and 3 are not signed by the defendant, that these are only entries of khatas and show as if the sum of Rs. 1,000/-, 800/- and 700/- mentioned above were lent as cash money and, therefore, no reliance should have been placed on these entries. It is further pointed out that Exs. 4, 5 and 6 are entries of khata, that out of 14 entries only three have been signed by the defendant and that the remaining entries have not been proved by the plaintiffs, according to law. It is contended that it was not sufficient for the plaintiffs simply to produce their khata and prove that the accounts were regularly kept, not was it sufficient for them to give their own statements and state in general terms that the entries mentioned therein were correct. It is urged that the plaintiffs aught to have proved every item and that since there was no such evidence on the record, the courts below had committed on error in treating it as sufficient evidence and passing a decree on its basis. In support of his contention, the appellant's learned advocate has referred to the cases of Abdul Haq vs. Firm Shivjiram Khemchand (1) (A. I. R. 1922 Lah. 338), Buta vs. Tirlok Ghand (2) (A. I. R. 1927 Lah. 903), Bahadur Singh vs. Padamchand (3) (A. I. R. 1933 Lah. 384.) and T. N. S. Firm vs. Muhammed Hussain (4) (A. I. R. 1933 Mad. 756. ). In the first case (1) it was observed that mere production of books of accounts without proof is not sufficient to charge the defendant with liability although it may have been shown that they had been regularly kept in the course of business. In the next case the same view was followed and it was stressed that where there were only the account books and the general statement of the plaintiff that were dealings between him and the defendant, the dealings were not proved under sec. 34, Indian Evidence Act, in absence of evidence of specific sums having been paid. In the third Lahore case, both the previous cases were referred and the same view was further supported. In the case of T. N. S. Firm (1) (A. I. R. 1933 Mad. 756.) also it was observed that the mere filing of accounts and exhibiting them does not prove the various items in them without some more evidence. The accounts may corroborate the oral evidence and there must be the evidence of some person who knows the transaction personally and can swear to them. It may be pointed out that in all these three cases from Lahore, the plaintiffs were businessmen and the defendants were either debtors or the customers of the plaintiffs. Sec. 34, Evidence Act, on which all these rulings are based, runs as follows: - "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. " It is clear from the provisions of this section that entries in books of account are relevant in case such books of account are regularly kept in the course of business and they refer to a matter into which the court has to inquire. It is also clear that such entries are only relevant and by themselves they should not be considered sufficient evidence to charge any person with liability. In other words, it is not only necessary to prove that the books have been regularly kept in the course of business but there should also be further corroboration about the correctness of the entries. As to what should be the nature or degree of corroboration, no hard and fast rule can be laid down. The section by itself does not lad down any particular form of corroboration and it would depend upon the facts of each case as to what would amount to independent evidence and whether it should be considered sufficient to corroborate the entries in the account-books. For instance, if a creditor wants to sue a debtor on the basis of certain entries in his account books showing that certain amounts were advanced as loan on various dates, or say, if a cloth-dealer sues a customer on the basis of the accounts showing that cloth was sold to him on credit on such and such dates, then it would certainly be necessary for the plaintiff to prove each and every item. But in a case where one businessman deals with another businessman and there are numerous transactions between them extending over some length of time, then, to my mind, it would be hardly reasonable to accept that plaintiff alone should bring independent evidence to prove each and every particular transaction. In such a case, where defendant has also got his books of account, I think, it is his duty also to produce his account-books and show that the entries in the account-books of the plaintiff did not tally with his own entries and that they are not reliable. In such cases, unless one of the parties is not honest from the very beginning, most of the entries should tally and the plaintiff in that case may be called upon to prove only such entries which are not corroborated by corresponding entries in the defendant's account books. What is meant to stress it that where both the parties are business-men and keep accounts, the defendant cannot withhold production of his account-books and throw the whole burden of proving every item on the plaintiff. If it is proved that the defendant also keeps accounts and that he is knowingly withholding them, then the court may presume that if such account books were produced they would have supported the entries in the account-books of the plaintiffs. In the case of Murugesam vs. Gnana Sambandha (2) (A. I. R. 1917 P. C. 6.) it was observed by their lordships of the Privy Council that "a practice has grown up in Indian procedure, of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing accordingly to furnish to the courts the best material for its decision. With regard to third parties, this may be right enough : they have no responsibility for the conduct of the suit ; but with regard to the parties to the suit it is, in their Lordships' opinion, an inversion of sound practice, for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition. In that case the defendants had withheld production of account-books and it was further observed, "the present is a good instance of this bad practice. . . The best assistance to a court of justice would have been a scrutiny of these documents, and their Lordships feel free to conclude that if they had been by their entries confirmatory of the defendants' view, the defendants would have brought them into court. " In the case of Ahmad Ali vs. Joti Prasad (1) (A. I. R. 1944 All. 188.) where defendant failed to produce the account-books, it was observed by their lordships that "the best evidence to establish the exact amount of profit accruing to the defendants and of damage caused to the plaintiffs would have been the production of books of account and registers which it is impossible to believe that the defendants did not keep and as the defendants deliberately refused to produce these documents and indeed denied their existence it is a fair assumption that they would have supported the case rather of the plaintiffs than of the defendants if they had been produced. " In the present case, when the defendant was examined, he had to admit in court that he was also a business-man and he had his own account-books and still he did not produce them. It was under these circumstances that the courts below raised a presumption against the defendant that in case he had produced the account-books they would have gone against him. The plaintiffs on the other hand came into the court and stated on oath that the items mentioned in Exhibits 4, 5 and 6 were correct. Three of these items were signed by the defendant himself. It appears from the defendant's written statement and also his oral statement in the trial court that in first instance he did not deny that there were transactions between him and the plaintiffs on the dates mentioned by the latter. At first he only made a vague denial that there were no losses and he was not liable to pay any amount. In his oral statement however, it was first admitted by him that he had paid the difference in part, and later on he said that he had paid the difference in full. When he was further questioned as to how much amount he had paid to the plaintiffs, he said that he did not remember it. When he was specifically questioned about his books of account, he said that there was no necessity for him to produce them because he had paid the amount in full. It may be observed that in a civil case, a defendant cannot take up the same stand as an accused can in a criminal case. In a criminal case, it is for the complainant or the prosecution to see that the allegations made against the accused are so proved as to convince the court concerned, as a. reasonable person would be convinced, beyond any reasonable doubt. In a civil case, however, it cannot be said that the benefit or reasonable doubt must necessarily go to the defendant. Even the preponderance of probabilities may serve as a good basis for decision. In the present case the plaintiffs had examined two witnesses to prove that their accounts were regularly kept. The plaintiff them selves came in the witness-box and proved that three of the items were issued by the defendant himself and that the remaining entries, which were specifically pointed out by them, were also correct. The defendant has admitted his signatures on the three entries. He has also admitted transactions between him and the plaintiffs but he only made a vague denial about his liability. He took inconsistent stands and withheld the production of account books in his possession. It was under these circumstances that the plaintiffs' evidence was considered sufficient by the courts below and a presumption under sec. 114, illustration (g) of the Indian Evidence Act, was made against the defendant. It cannot be said under the circumstances that the decision of the court below is based on no evidence and this contention of the appellant's counsel must, therefore, fail.
(3.) THE next contention of the appellant's counsel is that the defendant has examined two witnesses to prove that the transactions between the parties were of a wagering nature and that their evidence has been improperly rejected by the courts below. He has led this Court into the statements of these witnesses. I have gone through the statements and find that they have been rightly rejected by the courts below and it cannot be correctly argued that their evidence has been misread. As observed in the case of Poonam Chand vs. Firm Gulabchand Poonamchand (1) (1953 R. L. W. 133.) "in order to establish the plea of wager it must necessarily be proved, in respect of each and every transaction separately, by the party raising the plea, that intention of both the parties, was at the time of entering the contract, to deal in differences only and under no circumstances to take delivery. " Both the witnesses produced by the appellant have no personal knowledge of the transactions between the parties, and therefore it cannot be said that the defendant had successfully discharged the onus which was placed on him. I see no reason to interfere with the judgment of the courts below. The appeal is hereby dismissed with costs. .;