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Evidence Act, I 872 : Section 34-lngredients of-Two parts of the Section-Explanation of-"Entries in books of account regularly kept in course of business"-Meaning and import of-Held: Ordinary, natural and grammatical meaning has to be given when neither the context nor any principle of construction requires their restrictive meaning-Interpretation of Statutes. Section 34-Jain hawala diaries-Entries in-Held : Admissible under S. 34-But file containing loose sheets of paper cannot be termed as "book" and entries therein not admissible under S.34. Section 34-Books of account "regularly kept"-Meaning of-Held : Whether a book of accounts regularly kept or not depends on the nature of occupation-System of accounting and contemporaneity in making entries may differ-It is not necessary that an entry must be made at or about the time of transactions-Further, the system in which the books are regularly kept affects their probative value and not of their admissibility as a relevant fact under S.34. Section 34-Rationale of-Entries in book of account-Probative value of-"Such statements shall not alone be sufficient evidence to charge any person with liability"-Meaning of-Held: Entries though relevant are only corroborative evident-Independent evidence regarding the trustworthiness of those entries necessary to [IX liability-In the circumstance of the case, entries made in the Jain hawala diaries though admissible under S.34, truthfulness thereof not proved by independent evidence. Section 34-"Book "-Meaning of-Held : Spiral notebook/spiral pads are "books" but not loose sheets.Section 10-Co-conspirator-Statements, acts or writing of-Against the other-Admissibility of-Conditions for-Held : A reasonable ground must be there to believe about conspiracy to commit an offence or actionable wrong-Entries in .Jain notebooks-There is no evidence to show existence of any conspiracy between the Jains and the persons referred to in the notebook-Hence, S.10 not applicable-Penal Code, 1860. Sections 17 to 21-Admission and confession-Distinction between Held: Statement. oral or documentary, made by an accused as admission may be proved against him but not against others who are being jointly tried with him unless it amounts to a confession-Assuming that the entries in account books are admissions made in .Jain. notebooks, such entries may be proved only against the Jains-Moreover, prosecution case regarding conspiracy between Jains and others cannot stand as there is no prima facie case against the others as being parties to such conspiracy since in a conspiracy there must be two parties-Therefore, the statements cannot be proved as admission of the Jains of such conspiracy. Prevention of Corruption Act, 1947 : Section 12. Abatment by aiding-Held: Act so aided should have been committed- Persons referred to in .Jain diaries did not commit any offence under S. 7- Hence, the question of the Jains' committing the offence under S.12 does not arise-Penal Code, 1860, S.17(iii) Expln. 2.Words and Phrases :"Account", "books of account" "business" and "regularly kept"- Meaning of-In the context of S.34 of the Evidence Act. 1872. "Admission" and "confession"-Meaning of-In the context of Ss. 17 to 21 of the Evidence Act, 1872.The appellant-Central Bureau of Investigation (CBI), in 'the course of the search of the premises of one J.K Jain, recovered, besides other articles and documents, two diaries, two small notebooks and two files containing details of receipts of various amounts from different sources recorded in abbreviated forms of digits and initials and details of payments of various persons recorded in similar fashion. Preliminary investigation taken up by the CBI to decode and comprehend those entries revealed payments amounting to Rs. 65.47 crores, out of which 53.5 crores had been illegally transferred from abroad through hawala channels, during the years 1988 to 1991 to 115 persons including politicians, some of whom were members of either House of Parliament during the relevant period, officials of Government and Public A Sector Undertakings, and friends of S.K Jain, B.R Jain and N.K Jain who were three brothers carrying on different businesses. further revealed that the Jain brothers and J.K. Jain, who was their employee, had acted a middleman in the award of certain big projects in the power sector of the Government of India to different bidders; that they had official dealings with politicians and public servants whose names were recorded in the diaries and the files; and that some of them bad accepted illegal gratification other then legal remuneration from the Jains as a reward for giving them and the companies they own, and manage various contracts. On such relevation the CBI registered a case on 4-3-1995 under Section 7 and 12 of the Prevention of Corruption Act, 1947 and Section 56 read with Section 8(1) of the Foreign C Exchange Regulation Act, 1973 against the Jains, some public servants and others and on completion of investigation filed charge-sheets against the Jain brothers and various government servants and politicians including Shri V.C Shukla and Shri L.K Advani, the then Members of Parliament. The common allegations made in two of the above charge-sheets (from which these appeals stem) are that during the years 1988 to 1991 the Jains entered into a criminal conspiracy among themselves, the object of which was to receive unaccounted money and to disburse the same to their companies, friends, close relatives and other persons including public servants and political leaders of India. In pursuance of the said, 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 kick backs from them. During the aforesaid period the Jain brothers received Rs. 59,12,685, major portion of which came from foreign countries, 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 the Jain brothers authenticated the same. One of two notebooks (MR 71/91) was, according to the prosecution, the main mother book. Page 1 of the book began with the heading "A/C given upto 3st January on 31-1-1998" and then followed serially numbered entries of various figures multiplied by some other figures on the left hand column and the product thereof on the next column for each month commencing from January, 1990 to April, 1991. The overleaf (o) of the page contained similar entries for the period from April, 1988 to December, 1989 and it ended with the words "2.77 we have to receive". In the subsequent pages, the book recorded monthly receipts of monies/funds from inconspicuous person entities during the period commencing from the months of February 1988 to April 1991 maintained on '2 columns' basis. The left-hand column represented the receipts and the right hand column disbursements. In the column of receipts the source was indicated in abbreviated from on the left of the figure representing the sum received. On the right side of the said figures a number was mentioned which co-related with the serial number of the account of receivers recorded on pages 1 and 1(o) of the diary for the period subsequent to 31-1-1988. The names of the payees had also been recorded in abbreviated form, alphabets or words. The entries, however, did not give any indication of any sale, purchase or trading and showed only receipts of money from a set of persons and entities on one side and payments to another set of persons and entities on the other, both reckoned and kept monthly. As regards the actual amounts received and disbursed it appeared that the figures were in lakhs. The book further indicated that it was from time of time shown to some persons and they put their signatures in token thereof. The other book (MR 68/91) contained, inter, alia, entries relating to '!. cash and received and disbursed in the months of February, March and April 1991 recorded in similar fashion as in MR 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 ex)lenses on 26-4-1991' with names of a number of persons mentioned thereunder through their initials or surnames and various amounts shown against their respective names in only figures running upto 2 points after decimal. The other entries in this book seemed to be wholly unconnected to the entries earlier referred to. The two small Spiral pads(MR 69/71 and MR 70/91) also contained some entries relating to similar receipt and disbursement on certain days and certain months during the above period-all written in a similar fashion. In some of the loose sheets of papers contained in the files (MR 71/91 and MR 72/91 accounts of money received and disbursed in one particular mouth or period covering a number of months were written.The Special Judge took cognisance Upon the above two charge sheets and issued processes against the respondents. The Special Judge rejected various contentions of the respondents and passed separate Orders deciding to frame charges and try the respondents. Assailing the above order/charges the respondents moved the High Court through petitions filed under Section 482 of the Criminal Procedure Code, 1973, which were allowed by a common order and the proceedings of the above two cases were quashed and the respondents were discharged. Hence this appeal. On behalf of the appellant it was contended that the entire edifice of the prosecution case was built on the diaries and files for that matter the entries made there-in recovered from J.K. Jain, that the entries in the documents would be admissible under Section 34, 10 and 17 of the Evidence Act, 1872; 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; that the entries would be admissible as admission. of J.K, Jain, who made them; and that they would be admissible against the 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.On behalf of the respondents it was contended that the nature and character of the documents inhibited their admissibility under all the above Sections. |
