TMI Blog1998 (3) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. 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. Appeal dismissed. - CRL.A. 247 OF 1998 - - - Dated:- 2-3-1998 - M.K. MUKHERJEE, S.P. KURDUKAR AND K.T. THOMAS, JJ. JUDGMENT: M.K. MUKHERJEE, J Leave granted. On May, 3, 1991 the Central Bureau of Investigation (CBI), New Delhi, searched the premises of J.K. Jain at G-36 Saket, New Delhi to work out an information received while investigating RC Case No. 5(S)/91 SIU (B)/CBI/New Delhi. In course of the search they recovered, besides other articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves and other persons including public servants and political leaders of India. In pursuance of the said conspiracy S.K. Jain 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. During the aforesaid period the jain brothers received Rs. 59,12, 11, 685/-, major portion of which came from foreign countries through hawala channels as kickbacks from the foreign bidders of certain projects of power sector undertakings and the balance from within the country. An account of receipts and disbursements of the monies was maintained by J.K. Jain in the diaries and files recovered from his house and jain brothers authenticated the same. As against Shri Advani the specific allegation in the charge-sheet in which he and jains figure as accused) is that he received a sum of Rs. 25 lacs from jains during his tenure as a member of the parliament, (besides a sm of Rs. 35 lacs which was received by him while he was not a member of the parliament). In the other charge-sheet filed against Shri Shukla and Jains) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d co-accused persons, namely S.K. Jain, N.K. Jain, B. R. Jain and J. K. Jain as gratification other than legal remuneration for showing general favour to them and you, thereby, committed an offence punishable U/s 7 of the prevention of Corruption Act, 1988 and within the cognizance of this Court. Thirdly, that you during the aforesaid period and at the aforesaid place, in your aforesaid capacity being a public servant obtained pecuniary advantage amounting to Rs. 38,85,834/- from the co-accused persons namely, S.K. Jain, B. R. Jain, N.K. Jain and J.K. Jain by abusing your position as a public servant and also without any public interest and you, thereby committed an offence punishable U/S 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 and within the cognizance of this Court. The charges framed against S.K. Jain, in that case read as under: " Firstly, that you, S.K. Jain, during the period from Feb. 90 to Jan. 91 at Delhi, agreed with other co-accused V.C. Shukla, N. K. Jain, B. R. Jain and J. K. Jain to do an illegal act, to wit, to make payment of Rs. 38,85,834/- to said Sh. V. C. Shukla, as a gratification other than legal remuneration as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Charges for offence U.s. 7 and 13(2) read with 13(1)(d) of P.C. Act, 1988 be framed against accused L. K. Advani. Further charges for offence U/s 12 of P.C. Act, 1988 be framed against accused S.K. Jain, J.K. Jain, B.R. Jain and N. K. Jain." Assailing the above order/charges the respondents moved the High court through petitions filed under Section 482 CR. P. C., which were allowed by a common order and the proceedings of the above two cases were quashed and the respondents were discharged. The above order of the High Court is under challenge in these appeals at the instance of the CBI. From the above resume of facts it is manifest that the entire edifice of the prosecution case is built on the diaries and files - and for that matter the entries made therein - recovered from J. K. Jain. While the appellant claimed that the entries in the documents would be admissible under Sections 34,10 and 17 of the Evidence Act, ('Act' for short) the respondents contended that the nature and character of the documents inhibited their admissibility under all the above Sections. Needless to say, to delve into and decide this debatable point it will be necessary at this stage to look into t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imal point in money column. This gives an impression that the figures are in lakhs; and this impression gains ground from other transactions. For example, at page 9 of the book in the transactions relating to the month of September 80, a figure of 32,000 prefixed by (sterling pound symbol) indicates that it is 32,000 sterling pounds and the same has been multiplied by Rs. 40/- per pound which was possibly the conversion rate of pound according to Indian currency at that time) and the total has been indicated at 12.80 as against the product of Rs. 12,80,000/-. That necessarily means that the 2 places after decimal denotes that figures are in lakhs. The book further indicates that it was from time to time shown to some persons and they put their signatures in token thereof. The other book (M.R. 68/91) contains, inter alia, entries relating to cash and fund received and disbursed in the months of February, March and April 1991 recorded in similar fashion as in M.R. 71/91 (some or all of which correspond with the entries in MR 71/91 for those months); expenses incurred in the month of March 91; and 'political expenses as on 26.4.91' with names of a number of persons mentioned thereun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution. The admissibility of the documents under Section 10 was resisted by the respondents contending that there was not an iota of material to show even, prima facie, that there was a conspiracy. Similar was the contention regarding applicability of sections 17 and 21 in absence of any material to prove 'admission' of Jains. In support of their respective contentions they relied upon some decisions of this Court as also of different High Courts. From the order of the trial Court we find that though it noted all the contentions of the parties and quoted in extensor from the judgments relied on by them it left the question regarding admissibility of the documents under Section 34 unanswered with the following observation:- "All the above cited case laws U/s 34 and other sections of Indian Evidence Act pertain to the stage where in those cases entire evidence has been recorded and the trial was concluded. There is not even a single judgment which has been referred to above which pertains to the stage of charge. In the instant case, the case is at the stage of charge. So these case laws are not applicable to the facts and circumstances of the present case, at this stage." Then, pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Section , sufficient enough to fasten the liability on the head of a person, against whom they were sought to be used. As, according to the High, the prosecution conceded that besides the alleged entries in the diaries and the loose sheets there was no other evidence it observed that the entires would not further the case of the prosecution. As regards the admissibility of the documents under Section 10 the High Court held that the materials collected during investigation did not raise a reasonable ground to believe that a conspiracy existed, far less, that the respondents were parties thereto and, therefore, those documents would not be admissible under Section 10 also. The High Court next took up the question as to whether those documents could be admitted under Section 17 and observed that the admissions, if any, therein could be used against Jains only and not against Shri Adavani and Shri Shukla. The High Court, however observed that the production and proof of the documents by themselves would not furnish evidence of the truth of their contents and that during investigation C.B.I. did not examine any witness or collect materials to prove the same. With the above findings a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Section it is manifest that to make an entry relevant thereunder it must be shown that it has been made in a book, that book is a book of account and that book of account has been regularly kept in the course of business. From the above Section it is also manifest that even if the above requirements are fulfilled and the entry becomes admissible as relevant evidence, still, the statement made therein shall not alone be sufficient evidence, still, the statement made therein shall not along be sufficient evidence to charge any person with liability. It is thus seen that while the first part of the section speaks of the relevancy of the entry as evidence, the second park speaks, in a negative way, of its evidentiary value for charging a person with a liability. It will, therefore, be necessary for us to first ascertain whether the entries in the documents, with which we are concerned, fulfil the requirements of the above section so as to be admissible in evidence and if this question is answered in the affirmative then only its probative value need be assessed. 'Book' ordinarily means a collection of sheets of paper or other material, blank, written, or printed, fas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and other sources and to distribute it as bribes to politicians to influence favorable decisions from them. According to Mr. Altaf Ahmed, the expression "business" under Section 34 should receive the widest possible meaning and should be under stood and construed to mean and include all such efforts of people, which , by varied methods of dealing with each other are designed to improve their individual economic conditions and satisfy their desires. he submitted that any book in which monetary transactions are recorded and reckoned would answer the description of 'book of account' within the meaning of the aforesaid section. Relying upon the dictionary meanings of the above two words, namely, 'business' and 'account' and the interpretations given to those words by various Courts of law, he submitted that the book (MR 71/91) and the connected documents would clearly prove that they were books of account maintained in respect of the illegal business that the Jain were carrying. His last contention on this aspect of the matter was that the transactions contained in MR 71/91 and the connected documents were an inherently credible record of the business in question and the books were mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of pecuniary transactions or a reckoning of money transactions' a written or printed statement of business dealing or debts and credits; or a certain class of them. It is thus seen that while the former definitions give the word 'account' a restrictive meaning the latter give it a comprehensive meaning. Similarly is the above word defined, both expansively, in Black's Law Dictionary (Sixth Edition) to mean's detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contracts or some fiduciary relation. A statement in writing, of debits and credits, or of receipts and payments; a list of items of debits and credits, with their respective dates. A statement of pecuniary transactions; a record or course of business dealings between parties; a list of statement of monetary transactions, such as payments, losses, sales, debits, credits, accounts payable, accounts receivable, etc., in most cases showing a balance or result of comparison between items of an opposite nature.' Mr. Altaf Ahmed relied upon the wider definition of the word 'account' as mentioned above to conned that MR 71/91 fulfills the requirements of 'account' as it recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court proceeded to consider what is meant by a 'book of account' under Section 34 and stated as under: "To account is to reckon, and I an unable to conceive any accounting which does not involve either addition or subtraction or both of these operations of arithmetic. A book which contains successive entries of items may be a good memorandum book; but until those entries are totalled or balanced, or both, as the case may be, there is no reckoning and no account. In the making of totals and striking of balances from time to time lies the chief safeguard under which books of account have been distinguished from other private records as capable of containing substantive evidence on which reliance may be placed." (emphasis supplied) We have no hesitation in adopting the reasoning adumbrated in the above observations. The underlined portion of the above passage supports the contention of Mr. Altaf Ahmed and rebuts that of mr. Sibal that Mr 71/91 is only a memorandum for the entries made therein are totalled and balanced. We are, therefore, of the opinion that MR71/91 is a 'book of account' as it records monetary transactions duly reckoned. Coming now to the word ' busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust depend on its own circumstances." (emphasis supplied) Mr. Sibal submitted that from a cursory glance of MR 71/91. It would be apparent that the entries therein were not contemporaneously made; and, on the contrary, they were made monthly which necessarily meant that those entries were made long after the dates the purported transactions of receipt and disbursement took place. What is meant by the words 'regularly kept' in Section 34 came up for consideration before different high Courts; and we may profitable refer to some of those decisions cited at the Bar. In Ramchand Pitembhardar Vs. Emperor [19 Indian cases 534] it has been observed that the books are 'regularly kept in the corse of business' if they are kept in pursuance of some continuous and uniform practice in the current routine of the business of the particular person to whom they belong. In Kesheo Rao vs. Ganesh [AIR 1926 Nagpur 407] the court interpreted the above words as under: " The regularity of which S.34 speaks cannot possibly mean that there is not mistake in the accounts, as that would make the section a dead letter; no accounts could be admitted in evidence till they had been proved to be abso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fixed no precise time and each case must depend upon its own circumstances. Applying the above tests and the principles consistently laid down by the different High Court s(referred to above ) we find that Mr 71/91 has been regularly and systematically maintained. Whether the system in which the book has been maintained guarantees its correctness or trustworthiness is a question of its probative value and not of its admissibility as a relevant fact under Section 34. The other three books, namely MR 68/91 and MR 70/91 would not however come within the purview of the above Section, for, even though some of the emonetary transactions entered therein appear to be related to those in MR 70/91, they (the three books ) cannot be said to be books of account regularly kept. We need not, however, at this stage consider whether the entries in these three books will be relevant under any other provisions of Chapter II of the Act. Now that we have found ( in disagreement with the High Court ) that entries in MR 71/91 would be admissible under Section 34 of the Act we have to next ascertain there probative value. mr. Altaf Ahmed took great pains to decode and analyses the entries in the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 34. The rationale behind admissibility of parties' books of account as evidence is that the regularity of habit, the difficulty of falsification and the fair certainty of ultimate detection give them in a sufficient degree a probability of trustworthiness (wigmore on evidence $ 1546). Since, however, an element of self interest and partisanship of the entrant to make a person - behind whose back and without whose knowledge the entry is made - liable cannot be ruled out the additional safeguard of insistence upon other independent evidence to fasten him with such liability, aha been provided for in Section 34 by incorporating the words such statements shall not alone be sufficient to charge any person with liability. The probative value of the liability created by an entry in books of account came up for consideration in Chandradhar vs. Gauhati Bank [1967 (1) S. C. R. 898]. That case arose out of a suit filed by Gauhati Bank against Chandradhar (the appellant therein ) for recovery of a loan of Rs. 40,000/- . IN defence he contended, inter alia, that no loan was taken. To substantiate their claim the Bank solely relied upon certified copy of the accounts maintained by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pur 445] it was observed tat entries in book s of account are not by themselves sufficient to charge any person with liability, the reason being that a man cannot be allowed to make evidence for himself by what he chooses to write in his own books behind the back of the parties. There must be independent evidence of the transaction to which the entries relate an din absence of such evidence no relief can be given to the party who relies upon such entries to support his claim against another. In Hira Lal Vs. Ram Rakha [ A. I. R. 1953 Pepsu 113] the High Court, while negativing a contention that it having been proved that the books of account were regularly kept in the ordinary course of business and that, therefore, all entries therein should be considered to be relevant and to have been prove, said that the rule as laid down in Section 34 of the Act that entries in the books of account regularly kept in the course of business re relevant whenever they refer to a matter in which the court has to enquire was subject to the salient proviso that such entries shall not alone be sufficient evidence to charge any person with liability. It is not, therefore, enough merely to prove that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntries in question. This section reads as under:- " " Things said or done by conspirator in reference to common design. - where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, any thing said, done or written by any one of such persons in reference to their common intention, after the time when such intention was firs t entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it." In dealing with this Section in Sardul Singh vs. State of Bombay [ AIR 1957 S. C. 747], this court observed that it is recognised on well established authority that the principle under lining the reception of evidence of the statements, acts and writings of one co-conspirator as against the other is on the theory of agency. Ordinarily, a person cannot be made responsible for the acts of other unless they have been instigated by him or done with his knowledge or consent. This section provides an exception to that rule, by lay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red 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. To persuade us to give an affirmative answer to the above question mr. Altaf Ahmed drew our attention to the statements of Jacob Mathai (L. W. 4), Dr. P.K. Magu (L.W. 14), Vijay Kumar Verma (L. W. 15), Bharat Singh (L. W. 16) C. D.D Reddy (L. W. 17), S.R. Choudhary (L. W. 18), Ram Prasad (L. W. 19), H. P. Guha Roy (L. W. 20) and Narendra Singh (L. W. 21). On perusal of their statements 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 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a party t 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 about the same in Pakala Narayana vs Emperor [AIR 1939 privy Council 47] with these words:- " .... a confession must either admit in terms the offence, or at any rate substantially all the facts which constitutes the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession, eg. An admission that the accused is the owner of an was in recent possession of the knife or revolver which caused a death ..................................................... have a general term for use in the three following articles, confession secured by inducement, made upon oath, made under a promise of secrecy. The definition is not contained in the Evidence Act, 187 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement amounts to a confession. Where the statement falls short of a confession, it is admissible only against its maker as an admission and not against those who are being jointly tried with him. Therefore, from the point of view of Section 30 of the Evidence Act also the distinction between and admission and a confession is of fundamental importance." (emphasis supplied) In the light of the preceding discussion we proceed to consider the validity of the arguments canvassed by Shri Altaf Ahmed in this regard. mr. Altaf Ahmed urged that it being a settled principle of law that statements in account books of a person are 'admissions' and can be used against him even though those statements were never communicated to any other person, the entries would be admissible as admission of J. K. Jain, who made them that apart, he contended, they would be admissible against jain brothers also as they were made under their authority as would be evident from their endorsements/signatures appearing against below some of those entries. In support of his first contention he relied upon the following passage from the judgment of his Court in Bhogilal Chunilal pandya vs. State of Bombay [(1959) Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Shukla and the other with Shri Advani, in terms of which they were to make certain payments to them as a gratification other than legal remuneration as a motive or reward for getting their favour while they were 'public servants' and in pursuance of the said agreements payments were actually made to them thereby the Jains committed the offence of conspiracy under Section 120 b of the Indian Penal code; and under Section 12 of the prevention of Corruption Act, 1988 (P.C. Act for short), in that, they abetted the commission of offences under Section 7 of the Act by Shri Shukla and Shri Advani. It is thus seen that the prosecution sought to prove that there were tow separate conspiracies, in both of which Jains together figured as the common party and Shri Advani or Shri Shukla, as the other . Since we have already found that the prosecution has not been able to made out a prima facie case to prove that Shri Advani and Shri shukla were parties to such conspiracies, the charges of conspiracy, as framed/sought to be framed, cannot stand also against the Jains, for the simple reason that in a conspiracy there must be two parties. Resultantly , the statements cannot be proved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted. 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. Before we conclude it need be mentioned that another question of considerable importance that came up for consideration in these appeals was whether members of parliament come within the definition of 'public servant' in the P.C. Act so as to make the respondents liable for prosecution for alleged commission of offences there under. 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 ag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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