Case Summary: Central Bureau Of Investigation vs V.C. Shukla & Ors on 2 March, 1998 | Indian Evidence Act | S. 10,17,21,34 IEA

Sections Involved

Section 10 IEA: 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, anything said, done or written by any one 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.

Section 17 IEA: Admission defined.––An admission is a statement, 1 [oral or documentary or contained in electronic form], which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned. 

Section 18 IEA: Admission––by party to proceeding or his agent. –– Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to make them, are admissions. 

by suitor in representative character. –– Statements made by parties to suits suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character. Statements made by –– 

(1) by party interested in subject-matter.–– persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in their character of persons so interested, or 

(2) by person from whom interest derived.–– persons from whom the parties to the suit have derived their interest in the subject-matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements

Section 22 IEA: When oral admissions as to contents of documents are relevant. –– Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question. 

Section 34 IEA: Entries in books of account when relevant. –– 1 [Entries in books of account, including those maintained in an electronic from], regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability. 

Brief Facts:

 1. On May, 3, 1991 the Central Bureau of Investigation (CBI), New Delhi, searched the premises of J.K. Jain where 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.

 2. Preliminary investigation 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 Houses of parliament during the relevant period, officials of government and Public Sector Undertakings, and friends of S.K. Jain, B. R. Jain, and N.K. Jain, who are three brothers carrying on different businesses.

 3. On such revelation the CBI registered a case on march 4, 1995 under Sections 7 and 12 of the prevention of Corruption Act, 1988 and Section 56 read with Section 8(1) of the Foreign Exchange Regulation Act, 1973 against the Jains, some public servants and others being RC No. 1(A)/95 ACU (VI) and on completion of investigation filed 34 charge-sheets (challans) in the Court of the Special Judge, New Delhi against various politicians, Government servants and jains.

 4. In one of the above charge- sheets (C.S. No. 4 dated 16.1.1996) Shri Lal Krishna Advani, who at the material time was a member of the parliament, and the jains figure as accused and the another (C. S. No. 8 dated 23.1.1996), Shri V. C. Shukla, also a member of parliament, along with the Jains.

 5. The common allegations made in the above two charge- sheets (from which these appeals stem) are that during the years 1988 to 1991 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.

 6. 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).

 7. In the other charge-sheet filed against Shri Shukla and Jains) it is alleged that during the period 1988 to 1991, while shri Shukla was a member of the parliament and for some time a Cabinet Minister of the Central Government he received Rs. 39 lacs (approximately) from Jains.

Charges framed against V.C Shukla:

1. V. C. Shukla agreed with other co-accused S.K. Jain, N.K. Jain, B. R. Jain, and J. K. Jain to do an illegal act, to wit, to obtain pecuniary advantage from the said Jains by abusing your official position as a public servant being Member of Parliament due to which following charges are formulated aginst him: U/s 120 -B IC r/w Sec. 7, 12 and 13(2) r/w 13(1)(d) of the prevention of Corruption Act, 1988

2. Being a public servant V.C Shukla accepted a sum of Rs. 38,85,834 from the above said co-accused persons 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.

3.  In capacity of being a public servant he obtained pecuniary advantage amounting to Rs. 38,85,834/- from the co-accused persons by abusing his 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.

Charges framed against L.K Advani

1. Based on evidences and statement court ordered following charges against all these accused. Accordingly, I hereby order that the charges for offences U/S 120b IPC and Sections 7, 12, 13(2) r/w 13(1) (d) of the P. C. Act, 1988 be framed against all the accused namely, L. K. Adavani, S.K. Jain, J.K. Jain, B.R . Jain and N.K. Jain.

2. Further 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.

3. 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."

HC ORDER:

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.

 Appellant (CBI) contentions:

 1. The documents unmistakably showed that accounts of business regarding receipt and payment of money during the period 1988 to 19991 were regularly maintained those documents would be admissible under Section 34 of the Act. Relying upon the statements of some of the witnesses recorded during investigation and report of the handwriting expert that the entries in the documents were in the handwriting of J.K. Jain, and that the three Jain brothers had signed those documents in token of their authenticity

 2. Entries therein would be admissible also under Section 10 of the Act to prove that pursuant to a conspiracy hatched up by the Jains to obtain favours from politicians and other public servants payments were made to them from moneys received through hawala transactions.

 3. Section 17 and 21 were also pressed into service to contend that the entries would be 'admission of the Jains of such payments.

 Respondent Contentions:

 1. Since those documents were not books of accounts nor were they maintained in regular course of business they would not be relevant under Section

 2. It was further submitted that even it was assumed that those documents were relevant and admissible under Section 34 they could be used only as corroborative evidence, but in absence of any independent evidence to prove the payments alleged therein the documents were of no avail to the prosecution.

 3. Admissibility of the documents under Section 10 was resisted by the respondents contending that there was no prima facie, that there was a conspiracy.

 4. 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.

Legal Issue 1 : Whether the documents were admissible in evidence?

On this Issue, TC held that being 'documents' under Section 3 of the Act they could be proved during trial under Sections 61 and 62 thereof. The trial Court then referred to the various entries in the diaries and after correlating them came to the conclusion that a prima facie case had been made out against the respondents.

HC set aside TC order stating the contention of the respondents that the documents were not admissible in evidence under Section 34

SC's Observation:

From the above Section 34 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.

Legal Issue 2: Whether the above books fulfil the other requirements of Section 34 so as to be admissible in evidence?

Above decisions makes it evident that even correct and authentic entries in books of account cannot without independent evidence of their trustworthiness, fix a liability upon a person. Keeping in view the above principles, even if we proceed on the assumption that the entries made in MR 71/91 are correct and the entries in the other books and loose sheets which we have already found to be not admissible in evidence under Section 34) are admissible under Section 9 of the Act to support an inference about the formers' correctness still those entries would not be sufficient to charge Shri Advani and Shri Shukla with the accusations levelled against them for there is not an iota of independent evidence in support thereof.

In other words, the statements of the above witnesses cannot be independent evidence under Section 34 as against the above two respondents. So far as Shri Advani is concerned Section 34 would not come in aid of the prosecution for another reason also. According to the prosecution case itself his name finds place only in one of the loose sheets (sheet No. 8) and not in MR 71/91. Resultantly, in view of our earlier discussion, section 34 cannot at all be pressed into service against him.

Legal Issue 3: Whether conspiracy proved u/s 10 of IEA?

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 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 .

Legal Issue 4: Whether the entries are 'admissions' within the meaning of Section 17 of the Act so as to be admissible as relevant evidence under Section 21; and if so, as against whom can the entries be prove?

Basing its decision previous judgement cited by appellant counse, court held Even if we are to accept the above contentions of Mr. Altaf Ahmed the entries being 'admissions' - and not t' confession'- cannot be used as against Shri Advani or Shri Shukla.

However, as against jains the statements may be proved as admissions under Section 18 read with Section 21 of the Act provided they relate to ' any fact in issue or relevant fact.'

In the two case with which were are concerned in these appeals, the gravamen of the charges which were framed against Jains in one of them (quoted earlier) and were to be framed in the other pursuant to the order of the trial Court (quoted earlier) is that they entered into two separate agreements; one with 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.

Judgement:

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.

-Summary by Tushar Bawa