1998 (3) TMI 675 - SC - Indian Laws

Admissibility of evidence under Sections 34 10 and 17 of the Evidence Act - prosecution case is built on the diaries and files and for that matter the entries made therein recovered - nature and character of the documents inhibited their admissibility - iota of material - conspiracy lobbied with various public servants and Government organisations in the power and steel sectors of the Government of India to persuade them to award contracts to different foreign bidders with the motive of getting illegal kickbacks from them - distinction between admission and concession - In course of the search they recovered besides other articles and documents two diaries two small note books and two files containing details of receipts of various amounts from different sources recorded in abbreviated forms of ditties and initials and details of payments to various persons recorded in similar fashion. Held that - At the outset we may point out that no charge was framed against the Jains from having entered into a criminal conspiracy amongst themselves (even though such was the allegation in the charge sheet). We need not therefore consider the materials collected during investigation from that perspective. Indeed according to the charges of conspiracy all the respondents were parties thereto and the conspiracy existed for the period from February 1990 to January 1991. Therefore we have to ascertain whether there is Prima facie evidence affording a reasonable ground for us to believe about its such existence. On perusal of statements all the persons we find that some of them are irrelevant to the charges of conspiracy with which we are now concerned while others to the extent they can be translated into legally admissible evidence only indicate that Shri Shukla was known to the jain Brothers and had gone to their residence on formal occasions. The above statements cannot be made a reasonable ground to believe that all of them have conspired together. So far as Shri Advani is concerned we find that no one has even spoke about him in their statements. Since the first requirement of Section 10 is not fulfilled the entired in the documents cannot be pressed into service under its latter part . From a combined reading of the all Sections it is manifest that an oral or documentary statement made by a party or his authorised agent suggesting any inference as to any fact in issue or relevant fact may be proved against a party to the proceeding or his authorised agent as admission but apart form exceptional cases (as contained in Section 21) such a statement cannot be proved by or on their behalf. While on this point the distinction between admission and concession needs to be appreciated. In absence of any definition of confession in the Act judicial opinion as to its exact meaning was not unanimous until the judicial Committee made an authoritative pronouncement. Undoubtedly for a person to be guilty thereunder it is not necessary that the offences mentioned therein should have been committed prusuant to the abetment. Since abetment has not been defined under the P.C. Act we may profitable y refer to its exhaustible definition in Section 107 of the Indian Penal Code. It is thus clear that under the third clause when a person abets by aiding the act so aided should have been committed in order to make such aiding an offence. In other words unlike the first tow clauses the third clause applies to a case where the offence is committed. Since in the instant case the prosecution intended to prove the abetment of a Jains by aiding (and not by any act falling under the first two clauses adverted to above ) and since we have earlier found that no prima facie case has been made out against Shri Advani and Shri Shukla of their having committed the offence under Section 7 of the P.C. Act the question of Jains committing the offence under Section 12 and for that matter their admission in respect thereof - does not arise. Incidentally we may mention that the abetment by conspiracy would not also arise here in view of our earlier discussion. We did not deem it necessary to go into that question as we found proceeding on the assumption that they could be so prosecuted that no prima facie case was made out against any of the respondents to justify the changes that were framed against the Jains and Shri Shukla (in one case ) ; and were to be framed against Jains and Shri Advani (in the other ) pursuant to the order of the trial Court. Accordingly we dismiss these appeals keeping this question of law open .

Summary

ISSUES:

Whether the entries in certain diaries, notebooks, and loose sheets constitute "books of account" regularly kept in the course of business under Section 34 of the Evidence Act and are thus admissible as relevant evidence.Whether such entries alone are sufficient to charge any person with liability under Section 34 of the Evidence Act.Whether the entries in the documents are admissible as "admissions" under Sections 17 and 21 of the Evidence Act and against whom they can be proved.Whether the entries can be admitted under Section 10 of the Evidence Act as statements or acts of co-conspirators in reference to a common design.Whether there is prima facie evidence to believe in the existence of a criminal conspiracy involving the accused persons.Whether independent evidence exists to corroborate the entries in the books of account to fasten liability on the accused persons.Whether the accused persons, being members of Parliament, fall within the definition of "public servant" under the Prevention of Corruption Act, 1988.Whether the abetment of offences under Section 12 of the Prevention of Corruption Act can be established without proof of commission of the principal offence under Section 7.

RULINGS / HOLDINGS:

The two spiral notebooks and two small spiral pads constitute "books" within the meaning of Section 34 of the Evidence Act, but the loose sheets in the files do not qualify as books of account.The main notebook (MR 71/91) qualifies as a "book of account" regularly kept in the course of business, as it contains entries of monetary transactions duly reckoned, including totals and balances, and was maintained in a systematic manner compatible with the nature of the business.Entries in the books of account are relevant evidence under Section 34 but "such statements shall not alone be sufficient evidence to charge any person with liability."There is no independent evidence corroborating the entries in the books sufficient to charge the accused persons; thus, the entries alone cannot fasten liability on them.The materials collected do not establish a reasonable ground to believe in the existence of a criminal conspiracy involving the accused persons; therefore, entries cannot be admitted under Section 10 of the Evidence Act.The entries in the books are "admissions" by the persons who made them (J. K. Jain and the Jain brothers) and may be proved against them under Sections 17 and 21 of the Evidence Act, but cannot be used as admissions against other accused persons who did not make them.Since no prima facie case of conspiracy or commission of offences under Section 7 of the Prevention of Corruption Act is made out against the accused persons, charges under Section 12 (abetment) cannot be sustained.The question whether members of Parliament are "public servants" under the Prevention of Corruption Act is left open, as no prima facie case was made out against the accused persons on other grounds.

RATIONALE:

The Court applied the definitions and requirements of Section 34 of the Evidence Act, emphasizing that a "book of account" must be a bound collection of sheets regularly kept in the course of business and containing reckoned entries including totals and balances, distinguishing such books from mere memoranda or loose sheets.The Court adopted a broad and ordinary meaning of "business" and "account," recognizing that illicit or illegal activities conducted systematically can constitute "business" for the purpose of Section 34.Precedents were relied upon to clarify that entries in books of account, even if regularly kept, require independent corroborative evidence to establish the truth of the transactions and to charge a person with liability.Regarding Section 10, the Court reiterated the principle that evidence of acts or statements of one conspirator is admissible against others only if there is prima facie evidence of conspiracy; absence of such evidence precludes admissibility under this section.The Court distinguished between "admission" and "confession," holding that entries in account books are admissions against the maker but cannot be used as admissions against co-accused who did not make them.The Court referred to the definition of "abetment" under Section 107 of the Indian Penal Code and held that abetment by aiding requires the principal offence to have been committed, which was not established here.The Court refrained from deciding on the status of members of Parliament as "public servants" under the Prevention of Corruption Act, as the prosecution failed to make out a prima facie case on other grounds.