9911796707
TMI Blog2017 (1) TMI 1164X X X X Extracts X X X X X X X X Extracts X X X X ..... he very next day. The raid by the C.B.I. reportedly led to recovery of incriminating documents and unaccounted cash amounting to Rs. 25 crores. It is submitted that C.B.I. transferred the incriminating documents to the Income Tax Department. The laptop of Mr. Shubhendu Amitabh, Group Executive President was seized during the raid. An E-mail dated 16.11.2012 containing a cryptic entry was also recovered from the said laptop referring to political functionaries. When Mr. Amitabh was questioned about the transactions, he stated that "these were purely personal notes. Not meant for SMS or e-mail transmission. And the first note is only to note for my knowledge and consumption - a business development at Gujarat Alkali Chemicals" it does not relate to any political functionary. During investigation, top officials of the Birla Group admitted that large amounts of cash were routed by the Group through hawala. The Income Tax Department prepared a detailed appraisal report on the Hawala transactions. Some extracts of the report dated 27.2.2014 have been filed as Annexure A-5. A direction has already been issued by this Court to the CBI on 12.10.2015 to enquire into these, even though they m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 7.5 crores had been made during the period 9.1.2012 and 2.2.2012 with respect to "Project-J - Environment & Forest", and that 13 projects of the Aditya Birla Group companies had been sanctioned by the Ministry of Environment and Forest between 8.11.2011 and 17.6.2013. The documents - Annexure D is stated to be related to Coal Block of Birla Group of Companies by the Coal Ministry during the aforesaid period. E-mail dated 13.5.2013, relating to MOEF has also been placed on record. 8. It is averred that evidence of certain highly incriminating money transactions was also found in the laptop of Mr. Shubhendu Amitabh. An E-mail dated 16.11.2012 containing a cryptic entry, has been recovered which in fact does not relate to Gujarat Alkali Chemicals but to a political functionary and that this fact ought to have been ascertained. 9. It is further averred in the application that documents of Sahara also make out a case of cognizable offence and the role played by respondent No.2 should be enquired into. The explanation given to the Income Tax Department on behalf of the Sahara Group by Mr. Sachin Pawar, that exercise was done to implicate Mr. Dogra and to get him punished from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tushar Mehta, learned ASG have submitted that the material in question with respect to Sahara Group on the basis of which investigation is sought for, have been found by the Settlement Commission, in proceedings under Section 245D of the Income Tax Act, to be doubtful. The documents which have been filed by the Birla as well as Sahara Group are not in the form of account books maintained in regular course of business. They are random sheets and loose papers and their correctness and authenticity, even for the purpose of income mentioned therein have been found to be un-reliable having no evidentiary value, by the concerned authorities of income tax. The documents of Birla Group are also the same. They are not in the form of regular books of account and are random and stray materials and thus the case of Birla also stands on the same footing. 14. Placing implicit reliance of the decision of this Court in C.B.I. versus V.C. Shukla (supra), it was submitted that it is open to any unscrupulous person to make any entry any time against anybody's name unilaterally on any sheet of paper or computer excel sheet. There being no further corroborative material with respect to the payment, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being relevant is quoted here-in-below :- "14. In setting aside the order of the trial court, the High Court accepted the contention of the respondents that the documents were not admissible in evidence under Section 34 with the following words: "An account presupposes the existence of two persons such as a seller and a purchaser, creditor and debtor. Admittedly, the alleged diaries in the present case are not records of the entries arising out of a contract. They do not contain the debits and credits. They can at the most be described as a memorandum kept by a person for his own benefit which will enable him to look into the same whenever the need arises to do so for his future purpose. Admittedly the said diaries were not being maintained on day-to-day basis in the course of business. There is no mention of the dates on which the alleged payments were made. In fact the entries there in are on monthly basis. Even the names of the persons whom the alleged payments were made do not find a mention in full. They have been shown in abbreviated form. Only certain 'letters' have been written against their names which are within the knowledge of only the scribe of the said d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of paper, in whatever quantity, though filled up with one continuous account, are not a book of account within the purview of Section 34." We must observe that the aforesaid approach is in accord with good reasoning and we are in full agreement with it. Applying the above tests it must be held that the two spiral note books (MR 68/91 and MR 71/91) and the two spiral pads (MR 69/91 and MR 70/91) are "books" within the meaning of Section 34, but not the loose sheets of papers contained in the two files (MRs 72/91 and 73/91). x x x x x x x x x x x x x x x x x x 20. Mr. Sibal, the learned counsel for the Jains, did not dispute that the spiral note books and the small pads are "books" within the meaning of Section 34. He, however, strongly disputed the admissibility of those books in evidence under the aforesaid section on the ground that they were neither books of account nor they were regularly kept in the course of business. he submitted that at best it could be said that those books were memoranda kept by a person for his own benefit. According to Mr. Sibal, in business parlance "account" means a formal statement of money transactions between parties arising out of contractu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is further incumbent upon the person relying upon those entries to prove that they were in accordance with facts." 20. It is apparent from the aforesaid discussion that loose sheets of papers are wholly irrelevant as evidence being not admissible under Section 34 so as to constitute evidence with respect to the transactions mentioned therein being of no evidentiary value. The entire prosecution based upon such entries which led to the investigation was quashed by this Court. 21. We are constrained to observe that the Court has to be on guard while ordering investigation against any important constitutional functionary, officers or any person in the absence of some cogent legally cognizable material. When the material on the basis of which investigation is sought is itself irrelevant to constitute evidence and not admissible in evidence, we have apprehension whether it would be safe to even initiate investigation. In case we do so, the investigation can be ordered as against any person whosoever high in integrity on the basis of irrelevant or inadmissible entry falsely made, by any unscrupulous person or business house that too not kept in regular books of accounts but on ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parent that the Commission has recorded a finding that transactions noted in the documents were not genuine and thus has not attached any evidentiary value to the pen drive, hard disk, computer loose papers, computer printouts. 24. Since it is not disputed that for entries relied on in these loose papers and electronic data were not regularly kept during course of business, such entries were discussed in the order dated 11.11.2016 passed in Sahara's case by the Settlement Commission and the documents have not been relied upon by the Commission against assessee, and thus such documents have no evidentiary value against third parties. On the basis of the materials which have been placed on record, we are of the considered opinion that no case is made out to direct investigation against any of the persons named in the Birla's documents or in the documents A-8, A-9 and A-10 etc. of Sahara. 25. This Court, in the decision of Lalita Kumari versus Government of Uttar Pradesh and others, 2014(2) SCC 1 has laid down that when there is commission of offence apparent from the complaint and a cognizable offence is made out, investigation should normally be ordered and the falsity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 27. Considering the aforesaid principles which have been laid down, we are of the opinion that the materials in question are not good enough to constitute offences to direct the registration of F.I.R. and investigation therein. The materials should qualify the test as per the aforesaid decision. The complaint should not be improbable and must show sufficient ground and commission of offence on the basis of which registration of a case can be ordered. The materials in question are not only irrelevant but are also legally inadmissible under Section 34 of the Evidence Act, more so with respect to third parties and considering the explanation which have been made by the Birla Group and Sahara Group, we are of the opinion that it would not be legally justified, safe, just and proper to direct investigation, keeping in view principles laid down in the cases of Bhajan Lal and V.C. Shukla (supra). 28. In view of the materials which have been placed on ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
