TMI Blog1997 (4) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... t. - Thomas Jefferson, Works Vi, 186. Thus Realizing the importance of honesty and probity in public life and to weed out the corruption rampant amongst the public servants, the legislators thought it fit and proper to frame a comprehensive legislation in the form of Prevention of Corruption Act, 1947 as the existing laws in the form of Sections 161 to 165A Indian Penal Code, they felt, had proved inadequate for dealing with the situation obtaining at that time on account of war and immediately thereafter. Subsequently in order to further strengthen the anti- corruption laws and to make them very effective the Prevention of Corruption Act, 1988 was passed which received the assent of the President of India on September 9, 1988. 2. The present petitions relate to the corruption charges leveled against the petitioners under the Prevention of Corruption Act, 1988. 3. The petitioners herein, known as S/Shri L.K.Advani, V.C.ShukIa, J.K.Jain, N.K.Jain, S.K.Jain and B.R.Jain have taken exception through the present revision petitions bearing Nos. 124, 166, 167, 256, 257, 265, 328, 329, 330 and 331 of 1996, to the judgments and orders dated September 6, 1996 and May 8,1996 passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of law and facts which are likely to arise while disposing them of would be the same. Hence it is proposed to dispose them of by one and the same judgment. 7. Relevant and material facts which led to the presentation of the petition pertaining to charge sheet No. RC/1(A)/95-ACU-6 and charge sheet No. RGI(A)/95- ACU(VI) are as under: that during the years 1988-9 petitioners S/Shri S.KJain, J.K.Jain, B.RJain and N.KJain entered into a criminal conspiracy amongst themselves. The object of the said conspiracy was to receive un-accounted money and to disburse the same amongst themselves, friends, close relations and amongst different persons including the public servants and political leaders . With the said end in view petitioner Shri S.KJain lobbied with different public servants and government organisations in the power and steel sectors of the Government of India for the purposes of pursuing of award of various contracts to different foreign bidders with the motive of getting illegal kickbacks from them. The petitioners in connection therewith received ₹ 59,12,ll,685.00 during 1988-1991 by channeling some amount within the country and by receiving major portion of the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 38,85,834.00 is the only sum which was paid to him while he was a 'public servant'. Out of the said amount, a sum of ₹ 20 lacs was paid to him in February 1990 whereas ₹ 10 lacs are shown to have been paid to him in March 1990. A sum of ₹ 2,67,834.00 was paid to him in October, 1990, ₹ 5,30,000.00 paid to him in December 1990 ( 23.12.1990) and in January 1991 he was paid a sum of ₹ 88,000.00 . 9. Shri V.C.ShukIa, M.P.( Lok Sabha) was occupying a position of power in the Government of India for quite a long period and worked in various influential positions. He was a Member of Parliament ( Lok Sabha) from December 31,1984 to July 26,1989 and from June 20,1991 onwards. He also worked as Union Minister for External Affairs from November 21,1990 to February 20,1991, as Union Minister for Water Resources from June 20,1991 to January 18,1993 and as Union Minister of Parliamentary Affairs from January 18,1993 to January 17, 1996. The above-mentioned payments of ₹ 38,85,834.00 were made by Jains to Shri V.C.ShukIa while he was working as a 'public servant' with a motive which amounts to payment of illegal gratification other than lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r hand, contended with all the vehemence at their command that an M.P. is a 'public servant' within the meaning of Section 2(c)(viii) of the Prevention of Corruption Act. There is sufficient evidence on record to prima facie show that Shri L.K.Advani and Shri V.C.Shukla are guilty of accepting illegal gratification under Section 7 and criminal misconduct under section 13(l)(d) of the Prevention of Corruption Act. There was general conspiracy amongst the petitioners i.e. Jain brothers, namely, S/Shri N.K.Jain, B.R.Jain and S.K.Jain and their employee Shri J.K.Jain. During the period the said conspiracy was afoot a sum of ₹ 35 lacs was paid to Shri L.K.Advani whereas a sum of ₹ 38.85 lacs was paid to Shri V.C.Shukla on different dates by the aforementioned Jain brothers and they accepted the same as gratification other than legal remuneration as a motive and reward for showing favours in the discharge of their official functions. There is ample evidence in the form of diaries and note books to prima facie substantiate the said averments of the prosecution. 12. It is manifest from the facts canvassed above that the most polemical issue which arises for adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government. The Members of the Legislative Assembly enjoy the power of the purse. There is an enactment whereunder the Members of the Legislative Assembly draw their salary and allowances. They have got the power to vote the grant and pay themselves. To illustrate the said point he has led me through certain lines of paras 56 57 of the judgment. ....... Therefore, even though Mla receives pay and allowances, he is not in the pay of the State Government because Legislature of a State cannot be comprehended in the expression 'State Government'... (pr.57) ..... When all these aspects are pieced together, the expression 'Government' in Section 21(12(a) clearly denotes the Executive and not the Legislature. Mla is certainly not in the pay of the Executive. Therefore, the conclusion is inescapable that even though Mla receives pay and allowances, he cannot be said to be in the pay of the Government i.e. the Executive. This conclusion would govern also the third part of clause 12(a) i.e. remunerated by fees for performance of any public duty by the Government . In other words, Mla is not remunerated by fees paid by the Government i.e. the Executive. 13. Learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e heard the learned counsel for parties at sufficient length and have very carefully examined their rival contentions and have given my anxious thoughts thereto. 17. Since we are concerned with the construction of Section 2(c) of the Act which defines 'public servant' it would be just and proper to examine the provisions of the said Section before proceeding further in the matter. It is in the following words: - Public servant' means (i) any person in the service or pay of the Government or remunerated by the Government for fees or commission for the performance of any public duty; (ii) any person in the service or pay of local authority; (iii) any person in the service or pay of a Corporation .... (iv) any Judge ...... (v) any person authorised by a Court of Justice .... (vi) Any arbitrator or other person .... (vii) any person who holds an office.... (viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty. 18. Section 2(c)(i) is the reproduction of Section 21, clause 12(a) of the Indian Penal Code. The said provision was the subject matter of construction before the Hon'ble Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India deals with the form of oath or affirmation which is to be administered to a Member of Parliament. He is required to take oath in the following words: That I having been elected ( or nominated) a Member of the Council of State ( or the House of the People ) do swear in the name of God, that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter. 20. Whereas the architects of the Constitution in case of form of oath or affirmation to be administered to a Minister of the Union of India have used the word 'office'. The learned counsel has thus argued that had the Mp been also holding the office he would have also been administered the same type of oath which is administered to the holder of an office i.e. the Minister. There was no question of any distinction being made in between the two oaths. 21. The learned counsel has further argued that whenever the framers of the Constitution have referred to the President of India, Vice President of India, they have adverted to his office and not to & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date on which his seat becomes vacant; (b) in relation to a new member,- (i) ...... (ii)........ (iii) where such new member is member of either House of Parliament elected in a bye-election to that House or a member nominated to the House of the People the period beginning with the date of his election referred to in Section 67A of the said Act or, as the case may be, the date of his nomination. 24. It would not be out of place to reproduce here Section 3 of the said Act which provides as under:- 3. Salaries and daily allowances.- A member shall be entitled to receive a salary at the rate of seven hundred and fifty rupees per mensem during the whole of his term of office and subject to any rules made under this Act an allowance at the rate of seventy five rupees for each day during any period of residence on duty. It thus can be concluded from above that the words 'seat' and 'office' are interchangeable terms and either one of them can be used while referring to a Member of Parliament. The term 'office' has been defined in the Oxford English Dictionary, IInd Edn., Vol.X ( p. 729) in the following words:- 2...... b. Duty attach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an less, public character. Erskin May in fact speaks of Corruption in the Execution of their office as Members. There is nothing to stop a court, Therefore, holding that membership of Parliament constitutes an office...... 26. Let us now see as to whether an M.P. holds an office? Admittedly, an M.P. enjoys a status and position. He is also required to perform public duties under the Constitution. Thus it can be safely concluded there from that a Member of Parliament is holder of an office. 27. The other contention of the learned counsel for the petitioners as put forward by Mr. R.K.Anand and Mr. Kapil Sibal is that since the legislators in their wisdom have not put an M.P. in the category of 'public servant' this Court would not be justified in doing so. According to them, the law is to be interpreted as it is and not as the Court wishes it to be or as it ought to be. This is none of the functions of a Court of Law. I am sorry I am unable to agree with the contention of the learned counsel. 28. A perusal of the statement of Objects and Reasons behind the enactment of the Prevention of Corruption Act, 1988 reveals that the legislators wanted to amend the existing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a few lines from Sutherland's Statutory Construction, page 56, Where a public interest is affected an interpretation is preferred which favours the public. A narrow construction should not be permitted to undermine the public policy sought to be served. This is especially so where a narrow construction discourages rather than encourages the specific action, the legislature has sought to foster and promulgate. The founding fathers of the Constitution envisioned the legislators as men of character, rectitude and moral uprightness whose sole object was to serve the public with dedication, to be open, truthful and legal. I am reminded here of the memorable words of H.G.Wells. He was of the view: The true strength of rulers and empires lies not in armies or emotions, but in the belief of men that they are inflexibly open and truthful and legal. As soon as a government departs from that standard, it ceases to be anything more than the gang in possession and its days are numbered. 32. Mr. J.A.G.Griffith in' Parliament', Functions, Practice and Procedure, has cited Edmund Burke while commenting on the functions of the Members of Parliament. According to him, It ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by this Act. ..... We are trying to fit this in with the pronouncement of the Supreme Court, and at the same time taking note of the felt needs of the situation. 36. It is amply clear from above that the Minister on being asked conceded that there may be certain situations when an Mp or an Mla would be a 'public servant' within the meaning of this Act and as such would be liable for his actions like an ordinary citizen. Thus there was not a total denial on the part of the Minister on this question. A perusal of the speeches in the Parliament at the time of the debate on the bill reveals that the learned Members of the Parliament showed their anxiety, concern and worry with regard to the corruption not only amongst the government employees but they talked of even political corruption. To illustrate the point Shri Y.S.Mahajan from Jalgaon was of the view Sir, political corruption is pervasive in character. It assumes multiplicity of forms which is astonishing. It is a syndrome and covers not only simple cases of bribery but also extends to misuse of political power for private gain, such as, nepotism, misappropriation, illegal appropriation of public resources and patro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormance of any public duty by the Executive Government, certainly he would not be comprehended in the expression 'public servant' within the meaning of the expression in clause 12(a). He is thus not a 'public servant' within the meaning of the expression in clause 12(a). This conclusion reinforces the earlier conclusion reached by us after examining the historical evolution of clause 12(a). 39. It is crystal clear from the above discussion that an Mla was not held to be a 'public servant' as it was found that he was neither in the service nor pay of the Government nor remunerated by fees or commission for the performance of any public duty by the Government. The above snags which came in the way of the Apex Court in coming to the conclusion that an Mla was not a 'public servant' have now been removed by the amendment of the definition vide clause 2(c)(viii). The scope of the said definition has been enlarged and widened by removing the said obstacles and hurdles to hold an Mla or an Mp to be a 'public servant'. Now each and every person who holds an office by virtue of which he is required to perform any public duty in the discharge of wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lordships are of opinion that it puts too limited a construction on the words of the Act and might in some cases result in defeating the intention expressed by those words. To make the result depend on an inquiry into the range of the exclusive powers and duties of a member of Parliament is likely to hang it solely on the actual written provisions of the prevailing construction, and to do this may require a virtual ignoring of the plain facts of a particular case. Where the facts show clearly, as they do here, that a member of Parliament has come into or been brought into a matter of government action that affects his constituency, that his intervention is attributable to his membership and that it is the recognised and prevailing practice that the government department concerned should consult the local M.P. and invite his views, their Lordships think that the action that he takes in approaching the minister or his department is taken by him in his capacity as such member within the meaning of s. 14(a) of the Bribery Act. 42. To the same effect are the observations of a Division Bench as reported in Habibulla Khan v. State of Orissa Another, 1993 Cr.L.J. 3604, ( vide par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved on March 13,1991. Thus the date on which the charge sheet was filed Shri Shukla was no more a member of the erstwhile Lok Sabha i.e. 9th Lok Sabha. He was a member of a newly constituted House. Hence it can be safely concluded there from that the acts of omission and- commission were committed by him in his capacity as a member of the earlier Lok Sabha i.e. the 9th Lok Sabha. I am Therefore of the view that no sanction was required on the date of the charge sheet i.e. January 23,1996 for his prosecution in respect of the acts of omission and commission alleged to have been committed during the period from February 1990 to January 1991, as he was, now a member of newly constituted Lok Sabha ( 10th Lok Sabha). 46. I am fortified in my above view by the observations of their Lordships, of the Supreme Court as reported in K.Veeraswamy's case (supra), wherein it was observed by their Lordships of the Supreme Court ( para 62) after relying on the observations in S.A. Venkataraman v. State, 1958CriLJ254 , that no sanction for prosecution of the appellant under Section 6 was necessary since he had retired from the service on attaining the age of superannuation and was not a pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , though the examination itself may be such an act. 50. Now the question which arises for adjudication is as to whether the learned Special Judge was justified in ordering the framing of the charges against Shri L.K.Advani and Jains and in framing the charges against Shri V.C.ShukIa and Jains? The petitioners are being tried admittedly under the provisions of the Prevention of Corruption Act. A Special Judge under the Prevention of Corruption Act is under an obligation ( vide Section 5) to follow the same procedure as is followed by a Magistrate for trial of warrant cases instituted on a police report. Sections 239 240 Cr.P.C. deal with the framing of charges in cases instituted on a police report under Chapter I of the Criminal Procedure Code . entitled Trial of warrant cases by a Magistrate . Section 239 envisages If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S. 227 or S. 228 of the Code. ........ If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defense evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. ..... If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under S.227 or S.228, then in such a situation ordinarily and generally the order which will have to be made will be one under S.228 and not under S. 227. 54. The above view was reiterate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f cheating, but he is not guilty of the offence defined in this section. 57. Section 12 of the Act deals with the abetment of offences defined in Sections 7 11 of the Act. It lays down as under:- Whoever abets any offence punishable under section 7 or section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine. 58. Section 13 of the Act provides as under:- 13.(1). A public servant is said to commit the offence of criminal misconduct. (a)........ (b)........ (c)........ (d) if he, - (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (e)...... (2) Any public servant who commits criminal misconduct shall be punishab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without a request from his side it would not be an acceptance or obtainment of the said thing on the part of the person in whose pocket the same is inserted or thrust, within the meaning of Section 7 of the Act. 62. Learned counsel for the petitioners on the basis of the above have contended that there is absolutely no evidence in order to prima facie show and prove that the petitioners Shri Advani and Shri Shukla have accepted or obtained any thing from Jains. The mere fact that certain amounts have been shown against their names in Mr 68/91 and Mr 71/91 against Shri Shukla ( ₹ 38.85 lacs), and in Mr 72/91 against Shri Advani ( ₹ 35 lacs) would not ipso facto be prima facie proof of acceptance against the petitioners for the framing of the charges under the sections alluded to above. The prosecution must show prima facie that entries in the said diaries and the loose sheets i.e. M.R. 68/91, Mr 71/91 and Mr 72/91 are capable of being converted at a later stage i.e. the time of the trial of the petitioners into legal evidence. 63. An argument was advanced by the learned counsel for Cbi that the entries in the said diaries and loose sheets are relevant and as such w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 34 of the Evidence Act. 68. The term 'account' has been defined in Words Phrases, Permanent Edition, Vol.1A, pages 336-338. The word 'account' means (a) claim or demand by one person against another creating a debtor-creditor relation. (b) Account is a formal statement in detail of transactions between two parties made contemporaneously with the transactions themselves. It must be some thing which will furnish, to a person having a right thereto, information of a character which will enable him to make some reasonable test of its accuracy and honesty and it arises out of contract or some fiduciary relation. 69. The term 'book of account' has been defined in Words Phrases, Permanent Edn. Vol. Va at page 185. A book of account is a record of sales or other transactions involving credits and debts, and a book containing minutes of cash paid, only, is not properly a book of account. A diary is not admissible in evidence under the rule admitting books which are used in the regular course of business and kept by the party as 'books of account'. 70. It is manifest from above that an account presupposes the existence of two persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the prosecution. Hence the prosecution is bound by the same. Thus it can be said that the said diaries are not books of account within the ambit of Section 34 of the Evidence Act. 72. There is another aspect of the matter. It has been observed above that the entries in the books of account by themselves are not sufficient enough to fasten the liability on the head of a person against whom they are produced. They are not a substantive piece of evidence. The said entries in the books of account can be used only by way of corroboration to other pieces of evidence which is led by a party. Admittedly there is no evidence with the prosecution besides the alleged entries in the diaries and in the loose sheets as conceded by the learned counsel for the C.B.I. Thus the alleged entries in the books of account by themselves are of no avail to the prosecution. 73. I am fortified in my above view by the observations as reported in Mukundram and others v. Dayaram and others, Air 1914 Nag 44,.... An entry to be admissible in evidence under S.34, Evidence Act, must be shown to be in book, that book must be a book of account, and that account must be one regularly kept in the course o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such persons in reference to their common intention, after the time when such intention was first 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. 79. Section 10 of the Evidence Act is an exception to the rule of hearsay as is Section 21 of the Evidence Act. The said section is based on the principle of agency. However, to make a piece of evidence admissible under the said section it must be prima facie shown that : (a) there was a conspiracy; (b) if the conspiracy is shown to be in existence in that, eventuality anything said, done or written by any of the persons who are members of the said conspiracy would be admissible against any one of the co-conspirators; (c) the said thing done or written by any of such co-conspirators must be in reference to their common intention in order to be made admissible in evidence; and (d) the said piece of evidence would also be relevant for the said purpose against any other co- conspirator who entered the conspiracy irrespective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The State of Bombay, Vol. LXV-1963 BoM LR 660 , This section lays down a rule of evidence and its application is strictly conditioned by the existence of reasonable ground to believe that two or more persons have conspired together to commit an offence. The opening words of the section laying down a condition and the qualification laid down in the body of the section in regard to admissible acts, that is, they should be in reference to their common intention and also should have been committed, after the time when such intention was first entertained, indicate that the existence of a conspiracy must be established by prima facie evidence before the acts done or things written by any of the persons can be used as evidence against the others or for the purpose of proving the existence of the conspiracy....... Shortly stated, before the section can be invoked, as a general rule, some prima facie evidence should be placed before the Court to enable it to form an opinion that there is reasonable ground to believe that two or more persons have conspired together; and if that condition is fulfilled the acts and declarations of a conspirator against his fellow conspirators may be admitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suggest that the said entries were made in reference to the common intention of the conspirators after it was first entertained. 86. Shri J.K.Jain made the entries in his own handwriting with regard to the receipt of certain amounts and disbursement thereof and the same were shown to other Jains also. There is no averment in the charge-sheet that the said entries in the books of account came into being in execution of the conspiracy and the same were in furtherance of the common intention of Shri Advani and Jains, and Shri Shukla Jains. The alleged accounts were maintained by Shri J.K.Jain for the benefit of his employers to let them know as to what were the amounts received and disbursed by them. It can thus be safely inferred there from that the payees of the said amounts were not at all interested in the maintenance of the alleged accounts. 87. There is another aspect of the matter. The prosecution must prove the factum of the conspiracy by evidence other than the disputed evidence i.e. the diaries and the loose sheets which have been placed on the record of this Court. It has been observed above that there is no such evidence. The alleged entries relate to past facts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iple is of considerable practical importance in relation to confessions in criminal cases, and is further considered in 8.14.1. In civil cases, admissions made by other parties may now be admissible under S. 2 of the Civil Evidence Act, 1968. The common law rule has the logical, though curious, result that if A and B are jointly charged with the offence of conspiracy, which cannot be committed by one person alone, A may be convicted upon his admission that he and B were guilty of the conspiracy, while B may have to be acquitted because of the lack of admissible evidence against him, As admission being of no evidential value against B. Thus the said admission, if any, can be used against Jains and not against the other petitioners namely, Shri L.K.Advani and Shri V.C.Shukla. 90. There is another side of the picture. The entries in the said diaries and loose sheets, assuming arguendo, even if they are considered as a piece of evidence admissible under the Evidence Act, the same are of little help to the prosecution. The entries therein can at the most be said to be a document within the meaning of Section 3 of the Evidence Act. However, mere production of the said documents does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said diaries and loose sheets, except the report of the fingerprint and handwriting expert and the statement of certain witnesses namely Pawan Jain, A.B.Pathak and D.K.Gupta which would simply prove the handwriting of Shri J.K. Jain and signatures of Shri S.KJain. 95. The present case admittedly is based on circumstantial evidence. It is a well established principle of criminal law that in case of circumstantial evidence it should be of such a nature that it is incapable of Explanation on any other hypothesis except the guilt of the accused. It must be a complete chain and no link of the said chain should be missing. In other words it can be said that the facts brought in the form of circumstantial evidence must be incompatible with the innocence of the accused. I am tempted here to cite a few lines in support of my above view from the observations of the Hon'ble Supreme Court in Bakshish Singh v. The State of Punjab , 1971CriLJ1452 , The law relating to circumstantial evidence has been stated by this Court in numerous decisions. It is needless to refer to them as the law on the point is well settled. In a case resting on circumstantial evidence, the circumstances put ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servants as contemplated by S.7 of the Act. Thus the Court will have to presume all the above facts in the absence of any evidence in connection therewith to frame charges against the petitioners. 99. It is a well recognised principle of criminal jurisprudence that there can not be any presumption in favor of the prosecution . There is only one presumption and that is a sine qua ,non of the criminal jurisprudence and it is with regard to the innocence of the accused. The onus to prove the guilt of the accused beyond any shadow of doubt is always on the prosecution. However, in a case under the present Act the onus would shift to the accused only in those discerning few cases where the accused accepts gratification other than legal remuneration under Section 20 of the Act. The said burden would shift on the accused only when it is shown that the accused has accepted or obtained or agreed to accept or obtain as a gratification other than legal remuneration as a motive or reward, any valuable thing from a person in that eventuality it shall be presumed, unless contrary is proved, that he accepted or obtained or agreed to accept or obtain that gratification or valuable thing, as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1988 to September 8,1988. Thus the possibility of his not accepting the impugned amounts during the said period has not been ruled out by the prosecution. I agree. 102. However, during the course of arguments before the lower court the learned Public Prosecutor specified that the alleged payment of ₹ 35 lac was accepted by Shri Advani during the month of November 1989. Mr 71/91 covers the period of November 1989. Curiously enough the name of Shri L.K.Advani does not appear anywhere in the said month. Thus the contention of the learned senior counsel that the payment was made during the said month falls to the ground and does not show prima facie that the payment had been made during the said month. 103. I thus conclude that there is no evidence against the petitioners which can be converted into legal evidence. 104. In the circumstances stated above the petitioners are entitled to succeed. The petitions are allowed. The order dated September 6,1996 in C.C. No. 17/96, and orders dated May 8,1996, May 24,1996 and August 19,1996 in C.C. No. l5/96 are hereby set aside and the proceedings pending decision before the learned Special Judge in the above said petitions are he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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