Statements Made in the Ordinary Course of Business by a Deceased Person under Section 26(b) of the Bharatiya Sakshya Adhiniyam, 2023

Clause (b) of Section 26 admits the working papers of the dead. An entry made by a clerk who has since died, an acknowledgment written by a deceased agent, the date on a letter written by a person now untraceable — all become relevant, and all are received although nobody can be asked what they meant. The justification is routine. A record made day after day in the ordinary discharge of a duty, at a time when no dispute existed, carries no motive to misstate, and the very regularity of its making is what stands in place of cross-examination.

1. The Provision

Section 26(b), BSA

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts —

(b) when the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books or electronic records kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him; or of the date of a letter or other document usually dated, written or signed by him.

Clause (b) corresponds to Section 32(2) of the Indian Evidence Act. The substance is carried forward, and the reference to records kept in the ordinary course of business now takes in electronic records by force of the definition of 'document' in Section 2(1)(d), which expressly includes electronic and digital records.

2. The Gateway Condition

Nothing in clause (b) operates unless the maker is unavailable in one of the four ways the opening words of Section 26 specify. This is easily overlooked, because the material admitted under clause (b) is so ordinary that it is tempting to treat it as a document like any other.

It is not. Where the maker of the entry is alive and available, he must be called, and the entry becomes evidence through his testimony. Clause (b) operates only where he is dead, cannot be found after a diligent search, has become incapable of giving evidence, or cannot be produced without delay or expense that the court regards as unreasonable in the circumstances. The party tendering the entry must prove that condition; asserting it is not enough.

⚠ Clause (b) and Section 28 are different provisions

Section 28 makes entries in books of account, including those maintained in electronic form, relevant whenever they are regularly kept in the course of business — and it applies whether or not the maker is available. Clause (b) of Section 26 requires unavailability, but is not confined to books of account: it reaches memoranda, acknowledgments, commercial documents and the dates of letters. In practice a party will often plead both, and the two operate independently. Section 28 also carries a qualification that clause (b) does not: such entries alone are not sufficient evidence to charge any person with liability.

3. What 'In the Ordinary Course of Business' Requires

The opening words of the clause are general — a statement 'made in the ordinary course of business' — and the four specified categories that follow are illustrations of it rather than an exhaustive list. The controlling idea is regularity.

3.1 Regularity

The entry must be part of a settled and habitual practice, not something done specially for the occasion. An account book written up daily by a shopkeeper, a register maintained by a hospital, a despatch book kept by an office, a stock ledger posted as goods move — each of these is made because the business requires it, and would have been made whether or not the present dispute had ever arisen. That is the whole basis of the exception. A memorandum prepared once, in contemplation of a controversy, has none of the protection that routine supplies, and does not fall within the clause however truthful it may in fact be.

3.2 Contemporaneity

The entry should have been made at or about the time of the transaction it records. Routine loses its value as a guarantee if the record was written up long afterwards from memory, because the very features that make a contemporaneous entry reliable — that the writer had no occasion to reflect, and no reason to select — are absent. A ledger posted at the end of each day is contemporaneous; one written up months later in preparation for litigation is not.

3.3 Made in the discharge of duty

The clause expressly extends to entries and memoranda made in the discharge of professional duty. A doctor's case notes, an engineer's site record, an accountant's working papers and a lawyer's file note all fall within this limb, provided they were made as part of the professional obligation rather than as a personal record.

3.4 By the person who is unavailable

The maker of the entry must be the person who is dead or otherwise unavailable. An entry made by a clerk who is alive does not become receivable under clause (b) because the proprietor who ordered it has since died. Where a book contains entries in several hands, each entry must be attributed to a particular writer, and the condition of unavailability must be established in relation to that writer.

4. The Four Specified Categories

4.1 Entries and memoranda in books or electronic records

This is the most frequently invoked limb. It covers account books, ledgers, day books, cash books, stock registers, attendance registers, despatch registers, hospital case papers, and the electronic equivalents of all of them — accounting software records, database entries, system logs and spreadsheets maintained as part of the business.

Where the record is electronic, relevance under clause (b) is only the first question. The record must then be proved in accordance with Sections 57, 61 and 63. Where it falls within the Explanations to Section 57 it is primary evidence; where a copy or an output is tendered, the certificate prescribed by the Schedule to Section 63(4) is required, with the hash value in Part A and the expert declaration in Part B. A great deal of otherwise unimpeachable business material fails at this stage rather than on its content.

4.2 Acknowledgments of receipt

An acknowledgment written or signed by the deceased of the receipt of money, goods, securities or property of any kind is expressly covered. This is of considerable practical use, because it converts a receipt signed by a person now dead into relevant evidence of the receipt without anyone having to prove what passed between the parties.

The acknowledgment must have been written or signed by the person who is unavailable. A receipt issued in the name of a firm, signed by an employee who is alive, does not come within the clause merely because a partner has since died.

4.3 Documents used in commerce

Invoices, bills of lading, delivery challans, hundis, way bills, warehouse receipts and similar instruments written or signed by the deceased fall within this limb. The characteristic these share is that they are generated by the transaction itself and circulate in trade, so that their contents are relied upon by persons other than the writer at the time of writing.

4.4 The date of a letter or document

The last limb is narrow and specific. Where a person usually dated the letters or documents he wrote or signed, the date appearing on such a letter is relevant. It admits the date and not the contents. The rationale is the same as elsewhere in the clause: a person who habitually dates his correspondence writes the date without thought and without motive, and the date is therefore reliable in a way the substance of the letter may not be.

⚠ The clause admits the statement, not everything in the document

Clause (b) makes relevant the statement made in the ordinary course of business. Where a document contains both a routine entry and a narrative going beyond it, only the routine part is within the clause. An entry recording that goods were despatched on a date is within it; a note appended by the same clerk explaining that the consignee had been complaining for months is not, because it was not made in the ordinary course of the business of despatching goods.

5. Weight

Relevance is not the end of the enquiry. A business record admitted under clause (b) has never been tested, and the court assesses it accordingly. Four matters bear on the weight it carries.

Whether the practice is established. Evidence of the system by which the records were kept — who made the entries, at what intervals, under whose supervision — makes the record far more convincing than production of the book alone. This is where clause (b) meets Section 14, which makes the existence of a course of business relevant on the question whether a particular act was done.
Whether the book is regularly kept. Continuity of entries, absence of gaps, absence of interpolations and consistency of ink and hand all bear on whether the record is genuine.
Whether the entry is corroborated. An entry supported by the corresponding voucher, invoice or counterfoil is far stronger than one standing alone.
Whether the maker had any interest. The guarantee of routine assumes that the writer had no reason to misstate. Where the entry favours the writer's own employer in a matter already in controversy, the assumption weakens.

📖 Chandradhar Goswami v. Gauhati Bank Ltd., AIR 1967 SC 1058

Held: Entries in books of account regularly kept in the course of business are relevant, but the statute expressly provides that such entries shall not alone be sufficient evidence to charge any person with liability. A bank suing on an account must therefore prove the transactions by evidence independent of its own ledgers; production of the books, however regularly kept, does not by itself establish the debt.

Ratio: Decided on the provision corresponding to Section 28 of the Adhiniyam, and it states the qualification that attaches to business records generally — they are relevant, but a party cannot establish another's liability out of its own books alone.

The qualification is expressed in Section 28 rather than in clause (b), but the caution it embodies informs the assessment of any business record. A court receiving an entry made by a person who cannot be questioned will look for something outside the record before fixing liability upon it.

6. Clause (b) and Its Neighbours

Provision	What it admits	Is the maker's availability relevant?
Section 26(b)	Statements made in the ordinary course of business — entries, memoranda, acknowledgments, commercial documents and dates of letters	Yes. The maker must be dead or otherwise unavailable
Section 28	Entries in books of account, including those in electronic form, regularly kept in the course of business	No. But such entries alone are not sufficient to charge any person with liability
Section 29	Entries in public or official books, registers or records, stating a fact in issue or relevant fact, made by a public servant in the discharge of official duty	No
Section 14	The existence of a course of business according to which an act naturally would have been done, where the question is whether the act was done	No. It admits the practice, not the record

The four provisions are frequently pleaded together and they perform different tasks. Section 14 establishes that the office had a settled practice. Clause (b) or Section 28 admits the record generated by that practice. Section 29 does the same for official records. And where the record is electronic, Sections 57, 61 and 63 determine how it is to be proved.

7. The Position Stated Shortly

Unavailability is the gateway. Clause (b) does not operate unless the maker is dead, untraceable, incapable of giving evidence, or not procurable without unreasonable delay or expense, and that condition must be proved.
Routine is the guarantee. The statement must have been made in the ordinary course of business, as part of a settled and habitual practice, and not specially for the occasion.
Contemporaneity matters. A record written up long after the event loses the protection routine supplies.
The maker of the entry must be the person who is unavailable, and where a book is in several hands the condition must be established for each writer relied upon.
Four categories are named — entries and memoranda in books or electronic records, acknowledgments of receipt, documents used in commerce, and the date of a letter usually dated — but the opening words are general and the categories illustrate rather than exhaust.
Electronic records must still be proved under Sections 57, 61 and 63 and, where applicable, the certificate under the Schedule.
Relevance is not weight. A business record admitted under the clause has never been tested, and a court will ordinarily look for something outside it before fixing liability.

8. Related Topics and Provisions

Topic or provision	Connection
Statements by Persons Dead or Unavailable — Section 26	The four conditions of unavailability, and the remaining clauses
Statements Against Pecuniary or Proprietary Interest	Clause (c), the neighbouring exception resting on a different guarantee
Existence of Course of Business — Section 14	Proof of the practice from which the record was generated
Hearsay Evidence — Rule and Exceptions	The rule to which clause (b) is an exception, and the guarantee that replaces cross-examination
Sections 28 and 29, BSA	Entries in books of account and in public records
Sections 57, 61 and 63 and the Schedule, BSA	Proof of business records kept in electronic form
Section 2(1)(d), BSA	The definition of 'document', which brings electronic and digital records within the clause