IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 475 of 1998. Decided on: 8.4.2009. __________________________________________________ M/s Shiv Flour & Oil Mills … Appellant. Versus M/s Ram Karan Ravinder Kumar and another.… Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellant : Ms. Devyani Sharma, Advocate. vice Mr.Ramakant Sharma, Advocate. For the Respondents : Mr. Bhupender Gupta, Sr. Advocate with Mr. Ajit jaswal, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree passed by the learned District Judge, Solan in Civil Appeal No. 46-S/13 of 1997 dated 10.7.1998. Brief facts necessary for adjudication of this regular second appeal are that appellant-plaintiff (hereinafter referred to as the plaintiff for convenience sake) filed a civil suit for recovery of Rs. 8,000/- against the respondents-defendants (hereinafter referred to as the defendants for convenience sake). It was alleged by the plaintiff that the goods were supplied to the defendants on credit from time to time and for this purpose, he had maintained a 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 running account of the purchases made by the defendants in due course of the business. As per plaintiff an amount of Rs. 7,313/- was outstanding against the defendants up to 9.6.1992. The defendants contested the suit. The learned Sub Judge, Solan decreed the suit of the plaintiff for Rs. 8,000/- with costs and future interest at the rate of 18% per annum. The defendants preferred an appeal before the learned District Judge, Solan. He accepted the appeal on 10.7.1998. This regular second appeal was admitted on the following substantial questions of law: 1. Whether the lower Appellate Court has misread and misconstrued Ex. PW-1/A and Ex. PW-1/B? 2. Whether the lower Appellate Court has omitted to consider the impact of Section 34 of the Indian Evidence Act to the case on hand which prejudicially affected the claim of the appellant? 3. Whether the learned District Judge is right in not drawing the adverse inference against the respondents especially when the respondents have failed to appear as his own witness as well as having failed to reply to the notice duly received by it? 4. Whether the lower Appellate Court who was right in its conclusion that there is no presumption raised with respect to the entries in the accounts regularly kept by the parties and maintained in due course of business inspite of the fact that entries stood proved by the evidence of PW-1? 3 Ms. Devyani Sharma, Advocate has strenuously argued that the judgment and decree passed by the learned First Appellate Court is not sustainable. She has supported the judgment and decree passed by the learned trial Court. Mr. Bhupender Gupta, Senior Advocate has supported the judgment and decree passed by the learned First Appellate Court. I have heard the learned counsel for the parties and have perused the record carefully. The substantial questions of law are being taken up together for adjudication to avoid repetition and for convenience. The plaintiff had appeared as PW-1. He tendered copy of the ledger Ext. PW-1/A and Ext. PW-1/B. In support of ledger entries, copies of the bills Ext. PW-1/C and Ext. PW-1/V were relied by him. He has deposed that a sum of Rs. 7,313/- was outstanding against the defendants. The demand was raised vide notice Ext. PW-1/W and was served vide memorandum Ext. PW- 1/X. Ext. PW-1/A and Ext. PW-1/B are the photo copies of the ledger account of the plaintiff. The first entry is dated 1.4.1991 and the last entry in the ledger is dated 16.8.1991. The entry of 16.8.1991 was inserted after entries pertaining to the year 1992 and the last entry in the ledger again for the year 1992 is dated 9.6.1992. At serial No. 4 of Ext. PW-1/A after entry dated 25.4.1991, entry dated 16.4.1991 is inserted. Again, in this very ledger after entry dated 24.9.1991 entries dated 6.8.1991, and then 16.8.1991 were inserted. A bare look of the ledger entries shows that some entries were subsequently inserted in the ledger account 4 and were not made at proper places date-wise. It appears that the ledger account was not kept in regular manner in the course of business. The plaintiff has with-held the entries of the account book. The bills Ext. PW-1/C to Ext. PW-1/L show certain goods supplied to the defendants on the dates mentioned therein. These bills do not contain the signatures of any of the defendants. The bills Ext. PW-1/N, Ext. PW-1/O, Ext. PW-1/P, Ext. PW-1/Q, Ext. PW-1/R, Ext. PW-1/S, Ext. PW-1/T and Ext. PW-1/V are signed by one Sunder Gupta against column of customer but no material is placed on record as to who this Sunder Gupta was. The plaintiff has also not proved that Shri Ravinder Kumar, who signed the bills, was a partner of the defendants. Out of total 300 entries in the ledgers Ext. PW-1/A and Ext. PW-1/B, only ten are supported by the bills or vouchers and remaining are not supported by any vouchers or bills. The plaintiff has failed to prove that the accounts were maintained properly. The entries have been made haphazardly which are not supported by the documents, i.e. vouchers, bills and cash book. The cash books have been with- held by the plaintiff. Accordingly, the First Appellate Court has correctly read/appreciated Ext. PW-1/A and Ext. PW-1/B and the other documents placed on record as well as ocular evidence. Accordingly, there is no merit in this regular second appeal and the same is dismissed. No costs. (Rajiv Sharma), J. April 8, 2009. (cr) 5