ORDER
M.S.A. Siddiqui, J.
1. The Central Bureau of Investigation has filed nine separate revision petitions being revision Nos. 340/97, 352/97, 372/97, 420/97, 444/97, 466/97, 473/97, 19/98, and 31/98 against the order passed by the Special Judge, New Delhi in C.C. Nos. 51/96, 12/96-16/96-42/96-43/96, 37/96-38/96-48/96-52/96,18/96-56/96-60/96-58/96, 46/96-47/96-45/96-36/96-41/96, 40/96, 14/96, 59/96 55/96, discharging the accused persons. The Jain brothers, namely, N.K. Jain, S.K. Jain and B.R. Jain and their employee J.K. Jain have filed in all eight revision petitions being revision Nos. 184/97, 185/97, 186/97, 187/97, 222/97, 223/97, 224/97 and 225/97 against the orders passed by Shri V.B. Gupta, Special Judge, Delhi in C.C. Nos. 35/96, 35/96, 35/96, 35/96, 57/96, 57/96, 57/96, 57/96, directing framing of charges under Section 120-B IPC and under Sections 7/12/13(2) read with Section 13(1)(d) and Section 7 of the Prevention of Corruption Act (for short ‘the Act’) against them. By this order, I propose to dispose of the aforesaid criminal revision petitions.
2. A short conspectus of the case is that during the years 1988 to 1991, the Jain brothers, namely, S.K. Jain, B.R. Jain and N.K. Jain and their employee J.K. Jain 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, highly placed public servants and prominent political leaders including some Ministers and Government organizations in the power and Steel Sectors of the Government of India to award contracts to different foreign bidders with the motive of getting illegal kickbacks for them. During the aforesaid period, the Jain brothers received the huge amounts, major portion of which came from foreign countries through Hawala channels as kickbacks. An account of receipt and disbursement of the tainted monies was maintained by the accused J.K. Jain in the diaries. On 3.5.1991, the CBI searched the premises of the accused J.K. Jain at G-36, Saket, New Delhi in connection with the investigation of RC Case No. 5(S)/91-SIU(V)/CBI/New Delhi and 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 the abbreviated digits and initials and details of payment to various persons recorded in similar fashion. According to the prosecution case, the Jain brothers had acted as middlemen in the award of certain bid projects in the power and Steel Sectors of the Government of India to the different bidders. As per prosecution case, they had surreptitious dealings with politicians and influential public servants, whose names were recorded in the diaries and the files and that some of them had accepted illegal gratification for Jain brothers as reward for giving them and the companies they owned and managed various contracts. On such revelation, the CBI registered the case against petitioners of Criminal Revision Nos. 184/97, 185/97, 186/97, 187/97, 222/97, 223/97, 224/97 and 225/97 and the respondents of the Criminal Revision Nos. 340/97, 352/97, 372/97, 420/97, 444/97, 466/97, 473/97, 19/98, and 31/98. Investigation pursuant to the said reports culminated into submission of separate charge-sheet against the aforesaid persons under Section 120-B IPC read with Sections 7/11/12/13(2)/13(1)(d) of the Act against them.
3. On consideration of the materials collected by the CBI and after hearing the submissions of the parties, the learned Special Judge framed charges under Section 120-B IPC read with Sections 7/12/13(2)/13(1)(d) of the Act against petitioners of the Criminal Revision Nos. 184/97, 185/97, 186/97, 187/97, 222/97, 223/97, 224/97, and 225/97 and discharged the respondents of the remaining revisions mentioned above. Feeling aggrieved by the aforesaid orders, the CBI and the Jain brothers including the accused J.K. Jain have filed their respective revisions before this Court.
4. It is relevant to mention that framing of a charge in a criminal case is a serious matter as it substantially affects the person’s liberty.
Therefore, a charge cannot be framed as a matter of course. Reliance my, in this context, be made to the following observations of their Lordships of the Supreme Court in Century Spinning & Manufacturing Co. Ltd. Vs. The State of Maharashtra : “..The argument that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused is not supportable either on the plain language of the section or on its judicial interpretation or on any other recognised principle of law. The order framing the charges does substantially affect the persons’s and it is not possible to countenance the view that the Court must automatically frame the charge merely because the prosecuting authorities, by relying on the documents referred to in Section 173, consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution.”
5. In Union of India Vs. Prafulla Kumar, , the Supreme
Court has laid down the following principles for framing charge in a criminal case :
1. That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
2. Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly ex-
plained the Court will be fully justified in framing a charge and proceeding with the trial.
3. The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
4. That in exercising his jurisdiction under Section 227 of the
Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post-Office or a mouth-
piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
6. I shall now apply the principles enunciated above to the present case in order to find out whether or not the learned Special Judge was legally justified in passing the impugned orders. It is worth-noticing that what was projected before the trial court was that the Jain brothers were in the habit of making payments to influential public servants and political leaders of higher status to influence favourable decisions from them and certain payments were made to the respondents of the Criminal Revision No. 340/97, 352/97, 372/97, 420/97, 444/97, 466/97, 473/97, 19/98 and 31/98, namely, Sarva Shri Madan Lal Khurana, Madhav Rao Sindhia, Kamal Nath, Yashwant Sinha, Harmohan Dhawan, C.K. Jaffar Shariff, Balram Jakhar, Krishnamoorthy and C.N. Swamy with that oblique motive. The entire edifice of the prosecution case is built on the diaries and files alleged to have been recovered from the accused J.K. Jain, who was an employee of the Jain brothers. As per prosecution case, names of the aforesaid persons have been recorded in the diaries in abbreviated forms, alphabets or words. The relevant documents relied upon by the prosecution are two spiral note-book (marked as MR-68/91 and MR-71/91), two small spiral pads (marked as MR-69/91 and MR-70/91) and two files each containing some loose-sheet of papers (marked as MR-72/91 and MR-73/91). Besides, the alleged entries in the said documents, there was no other evidence to show monies received from one set of persons and payment thereof to another set of persons. It needs to be highlighted that on 5.5.1998, the learned Senior Counsel Mr. N. Natrajan made a statement before this court that in view of the judgment of the Apex Court in CBI Vs. V.C. Shukla and others, ,
revision petitions against Sarva Shri Madan Lal Khurana, Madhav Rao Scindia, Kamal Nath, Yashwant Sinha, Harmohan Dhawan, C.K. Jaffar Shariff, Balram Jakhar and C.N. Swamy are not maintainable as the CBI does not have corroborative evidence against them. Consequently, the revision petitions against the aforesaid persons were dismissed as not pressed.
7. In the case of CBI Vs. V.C. Shukla and others (supra), the Apex Court had occasion to consider whether the entitles in the aforesaid documents fulfill the requirements of Section 34 of the Evidence Act and it was held that the spiral note-book (MR-71/91) is the book of account regularly kept within the meaning of Section 34 of the Evidence Act but the other seized books, namely, MR-68/91, MR-69/91 and MR-70/91 would not come within the purview of the above Section as they cannot be said to be books of account regularly kept. It was also held that mere entries in the books of account cannot, without independent evidence in support thereof, fix a liability upon a person. At this juncture, the learned Senior Counsel Mr. N. Natrajan vehemently contended that the case diary statements of Jacob Mathai, Daniel
P. Ramball, P. Ghosal and Ejaj Ilmi are sufficient to prove the entries in the book (MR-71/91) regarding payment of money. Similar arguments were advanced before the Apex Court in the case of CBI Vs. V.C. Shukla and others (supra) and they were rejected on the ground that the statements of the said witnesses cannot be treated as independent evidence under Section
34 of the Evidence Act against other persons, whose names have been recorded in the diaries in abbreviated forms, alphabets or letters. In this context, it would be advantageous to extracts the following observations of their Lordships of the Supreme Court :-
“…Suffice it to say that the statements of the four witnesses, who have admitted receipts of the payments as shown against them in MR 71/91, can at best be proof of reliability of the entries so far they are concerned and not others. In other words, the statements of the above witnesses cannot be independent evidence under Section 34 as against the above two respondents.”
8. As noticed earlier, on 5.5.1998 the learned Senior Counsel Mr. N. Natrajan had made a statement to the effect that in view of the decisions of the Apex Court in the case of CBI Vs. V.C. Shukla and others (supra), the revision petition Nos. 340/97, 352/97, 372/97, 420/97, 444/97, 466/97, 473/97, 19/98, 31/98, are not sustainable in law against the respondents S/Shri Madan Lal Khurana, Madhav Rao Scindia, Kamal Nath, Yashwant Sinha, Harmohan Dhawan, C.K. Jaffar Shariff, Balram Jakhar and C.N.Swamy. That being so, on the same basis, the revision petition No. 19/98 against the respondent Krishnamoorthy is also not sustainable in law.
9. Next it was contended by the learned Senior Counsel Mr. N. Natrajan that the materials collected by the CBI, prima facie, disclose the exist-ence of the a conspiracy amongst Jain brothers to promote their economic interests by corrupting political leaders and public servants of high status. Pursuant to the general conspiracy, a number of separate conspiracies with similar purpose had been hatched up between Jain brothers and different political leaders and public servants. Reliance was sought to be placed on the case diary statements of Jacob Mathai, Dr. P.K. Magoo, Vijay Kumar Verma, Bharat Singh, D.D. Reddy, S.R. Chaudhary, Ram Prasad, A.P. Guharoy and Nagendra Singh, in support of the said contention. In the case of CBI Vs. V.C. Shukla and others (supra) statements of the aforesaid witnesses were considered by the Apex Court and it was observed :-
“…On perusal of their statements we find that some of them are irrelevant to the charges of conspiracy with which we are not 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
spoken about him in their statements. Since the first requirement of Section 10 is not fulfillled the entries in the documents cannot be pressed into service under its latter part. ”
10. Thus, the statements of the aforesaid witnesses are wholly insufficient to show that the Jain brothers entered into a criminal conspiracy among themselves, the object of which was to receive unaccounted monies and to disburse the same as bribe to the political leaders and influential public servants to obtain favourable decisions from them. Eliminating the case diary statements of the said witnesses, there remains, the documentary evidence in the form of entries in the books (MR-72/91 and MR-73/91). Prosecution witnesses, Pawan Jain, A.B. Pathak and D.K. Gupta have stated in their case diary statements that the entries were made by the accused J.K. Jain and the Jain brothers had put their signatures against some of the entries in token of verification thereof. As has been held by the Apex Court in the case of CBI Vs. V.C. Shukla and others (supra), these entries may be proved as admissions under Section 18 read with section 21 of the Evidence Act provided they relate to any “fact in issue” or “relevant fact”. What will be the “fact in issue” or “relevant fact” in a criminal trial would depend upon the nature of accusations made against the person indicted. In the instant case, the gravamen of the charges against the Jain brothers is that they entered into separate agreements with S/Shri Madan Lal Khurana, Madhav Rao Scindia, Kamal Nath, Yashwant Sinha, Harmohan Dhawan, C.K. Jaffar Shariff, Balram Jakhar, Krishnamoorthy and C.N. Swamy in terms of which they were to make certain payments to them as bribe for getting their favour while they were public servants and in pursuance of the said agreements payments were actually made to them. Thereby, the Jain brothers committed the offence punishable under Section 120-B IPC and under
Sections 12/13(2)/13(1)(d) of the Act. In that they abetted in commission of offence under Section 7 of the Act by the aforesaid persons. It is
worth-noticing that the learned Senior Counsel Mr. Natrajan has fairly conceded that in view of the decision of the Supreme Court in CBI Vs. V.C. Shukla and others, the materials collected by the prosecuting agency do not constitute any offence against S/Shri Madan Lal Khurana, Madhav Rao Scindia, Kamal Nath, Yashwant Sinha, Harmohan Dhawan, C.K. Jaffar Shariff, Balram Jakhar, Krishnamoorthy and C.N. Swamy. Thus, it can reasonably be inferred from the aforesaid statement of the learned Senior Counsel that persons mentioned above were not parties to the alleged conspiracies. The charges of conspiracy as sought to be framed, cannot stand also against the Jain brothers and their employee J.K. Jain for the simply reasons that in a criminal conspiracy there must be two parties. Resultantly, the mere entries in the book MR-72/91 and Mr-73/91 do not prove the alleged offence of conspiracy against the Jain brothers and their employee the accused J.K. Jain. That being so, the learned Special Judge has rightly discharged the accused persons. Consequently, the Criminal Revision Nos. 340/97, 352/97, 372/97, 420/97, 444/97, 466/97, 473/97, 19/98, 31/98 are liable to be dismissed.
11. By the orders dated 8.4.1997, learned Special Judge has framed charges under Section 120-B IPC and under Sections 7/12/13(2) read with Section
13(1)((d) of the Act against the Jain brothers and their employee J.K. Jain. For the reasons mentioned above, the aforesaid charges framed against the said accused persons are liable to be quashed. The learned Senior Counsel Mr. Natrajan appearing on behalf of the CBI with some ingenuity has attempted to seek the aid of Section 464 of the Code of Criminal Procedure for ancillary arguments that the impugned charges cannot be quashed on account of any error, omission or irregularity therein. This argument suffers from two fallacies. In the first place, the stage of the proceedings does not attract the provisions of Section 464 of the Code, which lays down that the finding or sentence or order pronounced by a Court, after a fair trial of the case is not to be deemed invalid merely on the ground that no charge was framed or on account of any error, omission or irregularity in the charge. The second fallacy underlying the learned Senior Counsel’s arguments is that there is not an iota of legal evidence on record to show that the Jain brothers had committed the alleged offence of conspiracy or that they abetted the commission of the offence under Section 7 of the Act by the accused persons. In my opinion, the case is squarely covered by the decision of the Supreme Court in the case of CBI Vs. V.C. Shukla & Anr. (supra)
12. For the foregoing reasons, the Criminal Revisions No. 340/97, 352/97, 372/97, 420/97, 444/97, 466/97, 473/97, 19/98 and 31/98 are dismissed and the Criminal Revision Nos. 184/97, 185/97, 186/97, 187/97, 222/97, 223/97, 224/97, and 225/97, are allowed and the impugned order passed by the learned Special Judge directing framing of charges under Section 120-B IPC and under Sections 7/12/13(2) read with Section 13(1)(d) of the Act against
the petitioners J.K. Jain, N.K. Jain, S.K. Jain and B.R. Jain are quashed. The bail bonds of the said accused persons are discharged.