{"id":247345,"date":"1998-03-02T00:00:00","date_gmt":"1998-03-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/central-bureau-of-investigation-vs-v-c-shukla-ors-on-2-march-1998"},"modified":"2017-09-15T06:12:08","modified_gmt":"2017-09-15T00:42:08","slug":"central-bureau-of-investigation-vs-v-c-shukla-ors-on-2-march-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/central-bureau-of-investigation-vs-v-c-shukla-ors-on-2-march-1998","title":{"rendered":"Central Bureau Of Investigation vs V.C. Shukla & Ors on 2 March, 1998"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Central Bureau Of Investigation vs V.C. Shukla & Ors on 2 March, 1998<\/div>\n
Author: M.K. Mukherjee<\/div>\n
Bench: M.K. Mukherjee, S.P. Kurdukar, K.T. Thomas<\/div>\n
           PETITIONER:\nCENTRAL BUREAU OF INVESTIGATION\n\n\tVs.\n\nRESPONDENT:\nV.C. SHUKLA & ORS.\n\nDATE OF JUDGMENT:\t02\/03\/1998\n\nBENCH:\nM.K. MUKHERJEE, S.P. KURDUKAR, K.T. THOMAS\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nM.K. MUKHERJEE, J
\n     Leave granted.\n<\/p>\n
     On May,  3, 1991  the Central  Bureau of  Investigation
\n(CBI), New Delhi, searched the premises of J.K. Jain at G-36
\nSaket, New  Delhi to  work out an information received while
\ninvestigating RC  Case No. 5(S)\/91 SIU (B)\/CBI\/New Delhi. In
\ncourse of  the search they recovered, besides other articles
\nand documents,\ttwo diaries,  two small\t note books  and two
\nfiles containing details of receipts of various amounts from
\ndifferent sources  recorded in\tabbreviated forms of ditties
\nand initials  and details  of payments\tto  various  persons
\nrecorded in similar fashion. Preliminary investigation taken
\nup by  the  Cbi\t to  decode  and  comprehend  those  entries
\nrevealed payments  amounting to\t Rs. 65.47  crores,  out  of
\nwhich 53.5 crores had been illegally transferred from abroad
\nthrough hawala\tchannels, during  the years  1988 to 1991 to
\n115 persons including politicians, some of whom were members
\nof either  Houses of  parliament during the relevant period,
\nofficials of  government and Public Sector Undertakings, and
\nfriends of  S.K. Jain,\tB. R.  Jain, and  N.K. Jain, who are
\nthree brothers\tcarrying on different businesses. It further
\nrevealed that the Jain brothers and J. K. Jain, who is their
\nemployee, had acted as middlemen in the award of certain big
\nprojects in  the power\tsector of the Government of India to
\ndifferent bidders;  that they  had  official  dealings\twith
\npoliticians and public servants whose names were recorded in
\nthe diaries  and the  files;  and  that\t some  of  them\t had
\naccepted illegal gratification other than legal remuneration
\nfrom jains  as a  reward for  giving them  and the companies
\nthey own  and manage  various contracts.  On such revelation
\nthe CBI\t registered a case on march 4, 1995 under Sections 7
\nand 12 of the prevention of Corruption Act<\/a>, 1988 and Section
\n56<\/a> read with Section 8(1)<\/a> of the Foreign Exchange Regulation
\nAct, 1973 against the Jains, some public servants and others
\nbeing RC  No.  1(A)\/95\tACU  (VI)  and\t  on  completion  of
\ninvestigation filed 34 charge-sheets (challans) in the Court
\nof the Special Judge, New Delhi against various politicians,
\nGovernment servants  and jains.\t In one of the above charge-
\nsheets (C.S. No. 4 dated 16.1.1996) Shri Lal Krishna Advani,
\nwho at the material time was a member of the parliament, and
\nthe jains  figure as  accused and  the another\t(C. S. No. 8
\ndated 23.1.1996),  Shri V.  C.\tShukla,\t also  a  member  of
\nparliament, along with the Jains.\n<\/p>\n
     The common\t allegations made  in the  above two charge-
\nsheets (from  which these  appeals stem) are that during the
\nyears 1988  to 1991 jains entered into a criminal conspiracy
\namong  themselves,  the\t object\t of  which  was\t to  receive
\nunaccounted  money   and  to  disburse\tthe  same  to  their
\ncompanies,  friends,   close  relatives\t and  other  persons
\nincluding public servants and political leaders of India. In
\npursuance of  the said\tconspiracy S.K.\t Jain  lobbied\twith
\nvarious public\tservants and Government organisations in the
\npower and  steel sectors  of  the  Government  of  India  to
\npersuade  them\tto  award  contracts  to  different  foreign
\nbidders with  the motive  of getting  illegal kickbacks from
\nthem. During the aforesaid period the jain brothers received
\nRs. 59,12,  11, 685\/-,\tmajor portion  of  which  came\tfrom
\nforeign countries  through hawala channels as kickbacks from
\nthe foreign  bidders of\t certain projects  of  power  sector
\nundertakings and  the balance  from within  the country.  An
\naccount of  receipts and  disbursements of  the\t monies\t was
\nmaintained by  J.K. Jain  in the diaries and files recovered
\nfrom his house and jain brothers authenticated the same.\n<\/p>\n
     As against\t Shri Advani  the specific allegation in the
\ncharge-sheet in\t which he  and jains  figure as\t accused) is
\nthat he\t received a sum of Rs. 25 lacs from jains during his
\ntenure as  a member  of the parliament, (besides a sm of Rs.
\n35 lacs\t which was received by him while he was not a member
\nof the\tparliament). In the other charge-sheet filed against
\nShri Shukla  and Jains) it is alleged that during the period
\n1988 to\t 1991,\twhile  shri  Shukla  was  a  member  of\t the
\nparliament and\tfor some  time a  Cabinet  Minister  of\t the
\nCentral Government  he received\t Rs. 39 lacs (approximately)
\nfrom Jains.\n<\/p>\n
     According\tto   CBI  the\tmaterials  collected  during
\ninvestigation clearly disclosed that jains were in the habit
\nof  making  payments  to  influential  public  servants\t and
\npolitical leaders  of high status expecting official favours
\nfrom them  and the  above payments  were made to Shri Shukla
\nand Shri  Advani with  that oblique motive. Thereby, the Cbi
\naverred,  the\tabove  persons\t(the  respondents  in  these
\nappeals) committed  offences under  Section 120B  I.B.C. and
\nSection 13(2)<\/a>  read with  Section 13(1)<\/a>\t (d), 7\t & 12 of the
\nprevention of Corruption Act<\/a>, 1988.\n<\/p>\n
     The special  judge took  cognisance upon  the above two
\ncharge-sheets and  issued processes against the respondents.
\nAfter entering\tappearance they agitated various grounds (to
\nwhich we  will refer  at the  appropriate stage)  to contend
\nthat there  was no  material  whatsoever  to  frame  charges
\nagainst them.  The Special  Judge, however, the rejected all
\nthose contentions  and passed  separate orders\tdeciding  to
\nframe charges and try the respondents. Pursuant to the order
\npassed in  Case No.  15 of  1996 (arising  out of C.S. No. 8
\ndated 23.1.1996)  the following\t charges were framed against
\nShri Shukla:-\n<\/p>\n
     ” Firstly, that you, V. C. Shukla ,
\n     during the\t period from  Feb. 90 to
\n     Jan. 91  at Delhi agreed with other
\n     co-accused S.K. Jain, N.K. Jain, B.
\n     R. Jain,  and J.  K. Jain\tto do an
\n     illegal  act,  to\twit,  to  obtain
\n     pecuniary advantage  from the  said
\n     Jains  by\t abusing  your\tofficial
\n     position as  a public servant being
\n     Member  of\t Parliament  during  the
\n     said period and also be Minister of
\n     External Affairs  from 21.11.90  to
\n     Jan. 91  and in  pursuance\t of  the
\n     said agreement,  you  obtained  the
\n     pecuniary\tadvantage  and\taccepted
\n     Rs. 38,  85,834\/- as  gratification
\n     other than\t legal remuneration from
\n     the said Jains for a general favour
\n     to them  from you and you, thereby,
\n     committed an offence punishable U\/s
\n     120 -B  IC r\/w Sec. 7, 12 and 13(2)
\n     r\/w 13(1)(d)  of the  prevention of
\n     Corruption Act<\/a>, 1988 and within the
\n     cognizance of this Court.
\n     Secondly,\tthat   you  during   the
\n     aforesaid period  at the  aforesaid
\n     place in or aforesaid period at the
\n     aforesaid place  in your  aforesaid
\n     capacity being  a\tpublic\tservant,
\n     accepted a\t sum  of  Rs.  38,85,834
\n     from  the\t above\tsaid  co-accused
\n     persons,  namely  S.K.  Jain,  N.K.
\n     Jain, B.  R. Jain and J. K. Jain as
\n     gratification  other   than   legal
\n     remuneration  for\tshowing\t general
\n     favour to\tthem and  you,\tthereby,
\n     committed an offence punishable U\/s
\n     7 of  the prevention  of Corruption
\n     Act<\/a>, 1988 and within the cognizance
\n     of this Court.<\/p><\/blockquote>\n
     Thirdly,  that   you   during   the
\n     aforesaid\t period\t  and\tat   the
\n     aforesaid place,  in your aforesaid
\n     capacity  being  a\t public\t servant
\n     obtained\t pecuniary     advantage
\n     amounting to  Rs. 38,85,834\/-  from
\n     the co-accused persons namely, S.K.
\n     Jain, B.  R. Jain,\t N.K.  Jain  and
\n     J.K. Jain\tby abusing your position
\n     as\t a   public  servant   and  also
\n     without  any  public  interest  and
\n     you, thereby  committed an\t offence
\n     punishable U\/S  13(2)  r\/w\t Section
\n     13(1)(d)<\/a>  of   the\t Prevention   of
\n     Corruption Act, 1988 and within the
\n     cognizance of this Court.\n<\/p><\/blockquote>\n
The charges  framed against  S.K. Jain, in that case read as
\nunder:\n<\/p>\n
     ” Firstly,\t that  you,  S.K.  Jain,
\n     during the\t period from  Feb. 90 to
\n     Jan. 91 at Delhi, agreed with other
\n     co-accused V.C. Shukla, N. K. Jain,
\n     B. R.  Jain and J. K. Jain to do an
\n     illegal  act,   to\t wit,\tto  make
\n     payment of\t Rs. 38,85,834\/- to said
\n     Sh.   V.\t C.   Shukla,\t as    a
\n     gratification  other   than   legal
\n     remuneration as  a motive or reward
\n     for  getting  general  favour  from
\n     said V.  C. Shukla\t who was holding
\n     the post of  a member of parliament
\n     during the said period and also was
\n     Minister\tfor   External\t Affairs
\n     during the\t period from 21.11.90 to
\n     Jan. 91  and in  pursuance\t of  the
\n     said   agreement,\t the   pecuniary
\n     advantage was  obtained by\t said V.
\n     C. Shukla\tby abusing  his official
\n     position  and  without  any  public
\n     interest and  the payment\twas made
\n     by you as, aforesaid, gratification
\n     an\t you,\tthereby,  committed   an
\n     offence punishable\t U\/s  120-b  IPC<\/a>
\n     r\/w Sec.  7, 12, 13(2) r\/w 13(1)(d)
\n     of\t the  prevention  of  Corruption
\n     Act<\/a>, 1988 and within the cognizance
\n     of this Court.\n<\/p><\/blockquote>\n
     Secondly,\tthat   you,  S.K.   Jain
\n     during the\t aforesaid period and at
\n     the  aforesaid  place  abetted  the
\n     commission\t of  offence  punishable
\n     U\/S 7  of the  P. C.  Act, 1988  by
\n     offering bribe  of Rs.  38,85834 to
\n     said V. C. Shukla, who was a public
\n     servant during  the relevant period
\n     as a  member of parliament and also
\n     as a  minister of\tExternal Affairs
\n     during the\t period from 21.11.90 to
\n     Jan. 91  for getting general favour
\n     from him and you, thereby committed
\n     an offence punishable u\/s 12 of the
\n     Prevention of  Corruption Act<\/a>, 1988
\n     and within\t the cognizance\t of this
\n     Court.”\n<\/p><\/blockquote>\n
Similar charges were also framed against the other Jains.\n<\/p>\n
     In the  other case (c.c. No. 17 of 1996), in which Shri
\nAdvani figure  as an accused with Jains no formal charge was
\nframed (as  by then  the  respondents  had  moved  the\tHigh
\nCourt), but  the special  Judge\t decided  to  frame  charges
\nagainst them  in similar  lines as would be evident from the
\norder dated September 6, 1996, the relevant portion of which
\nreads as under:\n<\/p>\n
     ”\tSo,   after  going  through  the
\n     entire   material\t  available   on
\n     record,\t  i.e.\t    charge-sheet
\n     statements\t  of\tthe    witnesses
\n     recorded U\/s 161 Cr.P.C<\/a>., documents
\n     placed on\trecord prima  facie,  it
\n     cannot be said that the allegations
\n     made against  all these accused are
\n     groundless\t or  that  there  is  no
\n     sufficient\t ground\t for  proceeding
\n     against  all   the\t accused.  Prima
\n     facie, it\tis clear  that there are
\n     sufficient grounds\t for framing  of
\n     charges against  all these accused.
\n     Accordingly, I  hereby  order  that
\n     the  charges   against  all   these
\n     accused.  Accordingly,   I\t  hereby
\n     order that the charges for offences
\n     U\/S 120b  IPC<\/a> and\tSections 7<\/a>,  12<\/a>,
\n     13(2)<\/a> r\/w\t13(1) (d)   of the P. C.
\n     Act, 1988 be framed against all the
\n     accused namely, L. K. Adavani, S.K.
\n     Jain, J.K.\t Jain, B.R  .  Jain  and
\n     N.K. Jain.\n<\/p><\/blockquote>\n
\t  Further  Charges  for\t offence
\n     U.s. 7 and 13(2) read with 13(1)(d)
\n     of P.C. Act<\/a>, 1988 be framed against
\n     accused L. K. Advani.\n<\/p><\/blockquote>\n
\t  Further  charges  for\t offence
\n     U\/s 12  of P.C. Act<\/a>, 1988 be framed
\n     against  accused  S.K.  Jain,  J.K.
\n     Jain, B.R. Jain and N. K. Jain.”\n<\/p><\/blockquote>\n
Assailing the  above order\/charges the respondents moved the
\nHigh court  through petitions filed under Section 482<\/a> CR. P.
\nC., which were allowed by a common order and the proceedings
\nof the above two cases were quashed and the respondents were
\ndischarged. The\t above order  of the  High  Court  is  under
\nchallenge in these appeals at the instance of the CBI.\n<\/p>\n
     From the  above resume of facts it is manifest that the
\nentire edifice\tof the\tprosecution case  is  built  on\t the
\ndiaries and  files –  and for  that matter  the entries made
\ntherein –  recovered from  J. K.  Jain. While  the appellant
\nclaimed\t that\tthe  entries   in  the\tdocuments  would  be
\nadmissible under  Sections 34<\/a>,10<\/a> and 17<\/a> of the Evidence Act,
\n(‘Act’ for  short) the respondents contended that the nature
\nand character of the documents inhibited their admissibility
\nunder all the above Sections. Needless to say, to delve into
\nand decide this debatable point it will be necessary at this
\nstage to  look into the documents; the two spiral note books
\n(marked MR  68\/91 and  MR 71\/91),  two small spiral pads (MR
\n69\/91 and  MR 70\/91)  and two  files, each  containing\tsome
\nloose sheets  of papers\t (MR  72\/91  and  MR  73\/91).  Since
\naccording to  the prosecution  MR 71\/91 is the main (mother)
\nbook we first take the same for scrutiny. Page 1 of the book
\nbegins with  the heading  “A\/C given  upto 31st\t January  on
\n31.1.1998;” and\t then follows  serially numbered  entries of
\nvarious figures\t multiplied by\t`some other  figures on\t the
\nleft hand  column and the product thereof on the next column
\nfor each month commencing from January, 1990 to April, 1991.
\nThe overleaf  (‘o’ for\tshort ) of the page contains similar
\nentries for  the period\t from April,  1988 to December, 1989
\nand it\tends with  the words  “2.77′ we have to receive”. In
\nthe subsequent\tpages the  book records\t monthly receipts of
\nmonies\/funds from  inconspicuous persons\/entities during the
\nperiod commencing  from the month of February, 1988 to April
\n1991 maintained\t on ‘2\tcolumns’ basis. The left hand column
\nrepresents  the\t  receipts  and\t  the  right   hand   column
\ndisbursements. In  the column  of  receipts  the  source  is
\nindicated in  abbreviated form\ton the\tleft of\t the  figure
\nrepresenting the sum received. On the right side of the said
\nfigures a  number is  mentioned which  co-relates  with\t the
\nserial number  of the account of receivers recorded on pages
\n1 and  1(o) of\tthe  diary  for\t the  period  subsequent  to
\n31.1.1988. So  far as  the names of the payees are concerned
\nthe same  have\talso  been  recorded  in  abbreviated  form,
\nalphabets or  words. The  entries, however,  do not give nay
\nindication of  any sale,  purchase or  trading and show only
\nreceipts of  money from a set of persons and entities on one
\nside and  payments to another set of persons and entities on
\nthe other,  both reckoned  and kept  monthly. As regards the
\nactual amounts\treceived and  disbursed we  notice that\t the
\nfigures\t which\thave  been  mentioned  briefly\tagainst\t the
\nrespective names are not suffixed with any symbol, volume or
\nunit so\t as to\tspecifically indicate  whether they  are  in
\nlakhs, thousands  or any  other denomination.  It is noticed
\nthat in most of the entries the figures against transactions
\nextend to  2 places after decimal which seem to suggest that
\nthe figures in money column may be in thousands, but then in
\nsome of\t the months, namely, 11\/88, 6\/89, 10\/90, 2\/91, 3\/91,
\n4\/91, figures  extend to  5 places  after decimal  point  in
\nmoney column.  This gives an impression that the figures are
\nin lakhs;  and\tthis  impression  gains\t ground\t from  other
\ntransactions. For  example, at\tpage 9\tof the\tbook in\t the
\ntransactions relating to the month of September 80, a figure
\nof 32,000 prefixed by (sterling pound symbol) indicates that
\nit  is\t 32,000\t sterling  pounds  and\tthe  same  has\tbeen
\nmultiplied by  Rs. 40\/-\t per pound  which was  possibly\t the
\nconversion rate\t of pound  according to\t Indian currency  at
\nthat time)  and the  total has\tbeen indicated\tat 12.80  as
\nagainst the  product of\t Rs. 12,80,000\/-.  That\t necessarily
\nmeans that  the 2  places after decimal denotes that figures
\nare in\tlakhs. The  book further  indicates that it was from
\ntime to\t time shown  to some  persons  and  they  put  their
\nsignatures in token thereof.\n<\/p>\n
     The other\tbook  (M.R.  68\/91)  contains,\tinter  alia,
\nentries relating  to cash and fund received and disbursed in
\nthe months  of February,  March and  April 1991\t recorded in
\nsimilar fashion\t as in\tM.R. 71\/91  (some or  all  of  which
\ncorrespond with\t the entries  in MR 71\/91 for those months);
\nexpenses incurred  in the  month of March 91; and ‘political
\nexpenses as  on 26.4.91’  with names  of a number of persons
\nmentioned thereunder  through their initials or surnames and
\nvarious amounts shown against their respective names in only
\nfigures running\t upto 2\t points\t after\tdecimal.  The  other
\nentries in  this book  seem to\tbe wholly unconnected to the
\nentries earlier referred to. The two small spiral pads (M.R.
\n69\/71 and  M.R. 70\/91) also contain some entries relating to
\nsimilar receipt\t and disbursement  on certain  days  and  in
\ncertain months\tduring the  above period  – all\t written  in
\nsimilar fashion.  So far  as the  two files  containing some
\nloose sheets of paper are concerned ( M. R. 72\/91 and 71\/91)
\nwe notice  that in  some of  these papers  accounts of money
\nreceived and  disbursed in  one particular month or a period
\ncovering a number of months are written.\n<\/p>\n
     While arguing their case for framing of charges against
\nthe respondents\t it was contended on behalf of the appellant
\nbefore the  trial Court\t that having regard to the fact that
\nthe documents  unmistakably showed that accounts of business
\nregarding receipt  and payment\tof money  during the  period
\n1988 to\t 19991 were  regularly\tmaintained  those  documents
\nwould be  admissible under  Section 34<\/a>\tof the\tAct. Relying
\nupon the statements of some of the witnesses recorded during
\ninvestigation and  report of the handwriting expert that the
\nentries in  the documents  were in  the handwriting  of J.K.
\nJain, and  that\t  the three  Jain brothers  had signed those
\ndocuments in  token of\ttheir authenticity, it was contended
\nthat entries  therein would be admissible also under Section
\n10<\/a> of the Act to prove that pursuant to a conspiracy hatched
\nup by the Jains to obtain favours from politicians and other
\npublic servants\t payments were\tmade  to  them\tfrom  moneys
\nreceived through hawala transactions. Section 17<\/a> and 21<\/a> were
\nalso pressed  into service to contend that the entries would
\nbe ‘admission of the Jains of such payments.\n<\/p>\n
     In refuting  the above  contentions it was submitted on
\nbehalf of  the respondents  that since\tthose documents were
\nnot books  of accounts\tnor were  they maintained in regular
\ncourse of  business they would not be relevant under Section\n<\/p>\n
34. It\twas next  submitted that  even it  was assumed\tthat
\nthose documents\t were relevant\tand admissible under Section
\n34<\/a> they\t could be,  in view  of the  plain language  of that
\nSection, used only as corroborative evidence, but in absence
\nof any\tindependent evidence  to prove\tthe payments alleged
\ntherein the  documents were  of no avail to the prosecution.
\nThe admissibility  of the  documents under  Section  10<\/a>\t was
\nresisted by the respondents contending that there was not an
\niota of material to show even, prima facie, that there was a
\nconspiracy.   Similar\t was   the    contention   regarding
\napplicability of  sections 17<\/a>  and  21<\/a>\tin  absence  of\t any
\nmaterial to  prove ‘admission’ of Jains. In support of their
\nrespective contentions\tthey relied  upon some\tdecisions of
\nthis Court as also of different High Courts.\n<\/p>\n
     From the  order of\t the trial Court we find that though
\nit noted  all the  contentions of  the parties and quoted in
\nextensor from  the judgments  relied on\t by them it left the
\nquestion regarding  admissibility  of  the  documents  under
\nSection 34<\/a> unanswered with the following observation:-\n<\/p>\n
     “All the  above cited case laws U\/s
\n     34 and  other  sections  of  Indian
\n     Evidence Act<\/a>  pertain to  the stage
\n     where   in\t  those\t  cases\t  entire
\n     evidence has  been recorded and the
\n     trial was\tconcluded. There  is not
\n     even a  single judgment  which  has
\n     been  referred   to   above   which
\n     pertains to the stage of charge. In
\n     the instant  case, the  case is  at
\n     the stage\tof charge. So these case
\n     laws  are\tnot  applicable\t to  the
\n     facts  and\t  circumstances\t of  the
\n     present case, at this stage.”\n<\/p><\/blockquote>\n
Then, proceeding  on the assumption that those documents did
\nnot come  within the  purview of Section 34<\/a>, the trial court
\nposed the  question as\tto their  evidentlary value  without
\nfirst going  into the  question whether\t the documents\twere
\nadmissible in  evidence) and  held  that  being\t ‘documents’
\nunder Section  3<\/a> of   the  Act they  could be  proved during
\ntrial under Sections 61<\/a> and 62<\/a> thereof. The trial Court then
\nreferred to  the various  entries in  the diaries  and after
\ncorrelating them  came to  the conclusion that a prima facie
\ncase had been made out against the respondents. However, the
\nappellant’s contention\tthat the entries made in the diaries
\nwere also admissible under Sections 17<\/a> and 21<\/a> as against the
\nJains did not find favour with the trial court as, according
\nto it,\tprima facie  there was no admission on behalf of the
\naccused. As  regards the admissibility of the entries in the
\ndocuments under\t Section 10<\/a>,  the trial Court did not record
\nany specific finding.\n<\/p>\n
     In setting aside the order of the trial court, the High
\nCourt accepted\tthe contention\tof the\trespondents that the
\ndocuments were\tnot admissible\tin evidence under Section 34<\/a>
\nwith the following words:\n<\/p>\n
     ”\tAn   account   presupposes   the
\n     existence of  two persons such as a
\n     seller and\t a  purchaser,\tcreditor
\n     and debtor. Admittedly, the alleged
\n     diaries in the present case are not
\n     records of\t the entries arising out
\n     of a  contract. They do not contain
\n     the debts\tand credits. They can at
\n     the  most\t be   described\t  as   a
\n     memorandum kept by a person for his
\n     own benefit  which will  enable him
\n     to look  into the same whenever the
\n     need arised  to do\t for his  future
\n     purpose.\tAdmittedly    the   said
\n     diaries were  not being  maintained
\n     on day-to day basis in he course of
\n     business. There  is no  mention  of
\n     the  dates\t on  which  the\t alleged
\n     payment  were  made.  In  fact  the
\n     entries there  in\tare  on\t monthly
\n     basis.  Even   the\t names\t of  the
\n     persons whom  the alleged\tpayments
\n     were made\tdo not find a mention in
\n     full.  they   have\t been  shown  in
\n     abreviated\t  form.\t  Only\t certain
\n     ‘letters’ have been written against
\n     their names  which are  within  the
\n     knowledge of only the scribe of the
\n     said diaries  as to what they stand
\n     for and whom they refer to.”<\/p><\/blockquote>\n
     After having held that the documents were neither books
\nof account  nor kept  in the  regular course of business the
\nHigh Court  observed that even if they were admissible under
\nSection 34<\/a>,  they were not, in view of the plain language of
\nthe Section  , sufficient  enough to fasten the liability on
\nthe head  of a\tperson, against\t whom they were sought to be
\nused. As,  according to\t the High,  the prosecution conceded
\nthat besides  the alleged  entries in  the diaries  and\t the
\nloose sheets  there was\t no other  evidence it observed that
\nthe entires  would not\tfurther the case of the prosecution.
\nAs regards  the admissibility of the documents under Section
\n10<\/a> the\tHigh Court  held that the materials collected during
\ninvestigation did  not raise  a reasonable ground to believe
\nthat a\tconspiracy existed,  far less,\tthat the respondents
\nwere parties  thereto and,  therefore, those documents would
\nnot be admissible under Section 10<\/a> also. The High Court next
\ntook up\t the question as to whether those documents could be
\nadmitted under\tSection 17<\/a> and observed that the admissions,
\nif any,\t therein could\tbe used\t against Jains\tonly and not
\nagainst Shri  Adavani  and  Shri  Shukla.  The\tHigh  Court,
\nhowever observed  that\tthe  production\t and  proof  of\t the
\ndocuments by  themselves would\tnot furnish  evidence of the
\ntruth of their contents and that during investigation C.B.I.
\ndid not\t examine any  witness or  collect materials to prove
\nthe same. With the above findings and observations, the High
\nCourt arrived at the following conclusion:-\n<\/p>\n
\t  ” In the present case there is
\n     no evidence against the petitioners
\n     except the\t diaries, note books and
\n     the loose\tsheet with regard to the
\n     alleged  payments\t (vide\tMR  Nos.
\n     68\/91, 72\/91  and 73\/91).\tThe said
\n     evidence is  of such a nature which
\n     cannot be\tconverted into\ta  legal
\n     evidence against  the  petitioners,
\n     in view of my above discussion.
\n\t  There is  no evidence\t in  the
\n     instant case  with\t regard\t to  the
\n     monies which  are alleged\tto  have
\n     been, received  by\t Jains\tfor  the
\n     purpose of\t disbursement. There  is
\n     no\t evidence  with\t regard\t to  the
\n     disbursement of  the amount  . Then
\n     there is no evidence with regard to
\n     the  disbursement\tof  the\t amount.
\n     Then  there  is  no  evidence  with
\n     regard to\tthe fact  to prove prima
\n     facie  that  the  petitioners  i.e.
\n     Shri L.  K. Advani\t and Shri  V. C.
\n     Shukla accepted the alleged amounts
\n     as a  motive or  reward for showing
\n     favour or\tdisfavor to  any  person
\n     and  that\t the  said  favours  and
\n     disfavors\t were\tshown\tin   the
\n     discharge of their duties as public
\n     servants as  contemplated by 5.7 of
\n     the Act  (Prevention of  Corruption
\n     Act<\/a>, 1988).  Thus\tthe  court  will
\n     have to presume all the above facts
\n     in the  absence of\t any evidence in
\n     connection\t  therewith   to   frame
\n     charges against the petitioners.<\/p><\/blockquote>\n
     To appreciate  the contentions  raised before us by the
\nlearned counsel for the parties it will be necessary at this
\nstage to  refer to  the\t material  provisions  of  the\tAct.
\nSection 3<\/a> declares that a fact a relevant to another when it
\nis connected  with the\tother in any of the ways referred to
\nin the\tprovisions of  the Act\trelating to the relevancy of
\nfacts; and those provisions are to be found in sections 6<\/a> to
\n55<\/a> appearing in Chapter II. Section 5<\/a>, with which Chapter Ii
\nopens, expressly  provides that evidence may be given in any
\nsuit or\t proceeding of\tthe existence  or  non-existence  of
\nevery fact  in issue  and the facts declared relevant in the
\naforesaid section,  and of  no others. Section 34<\/a> of the Act
\nreads as under:-\n<\/p>\n
     ” Entries\tin books of account when
\n     relevant  –   Entries  in\tbook  of
\n     account,  regularly   kept\t in  the
\n     course of\tbusiness,  are\trelevant
\n     whenever they  refer  to  a  matter
\n     into which the court has to inquire
\n     but such statements shall not alone
\n     be sufficient  evidence  to  charge
\n     any person with liability.”<\/p><\/blockquote>\n
     From a plain reading of the Section it is manifest that
\nto make\t an entry  relevant thereunder it must be shown that
\nit has\tbeen made  in a book, that book is a book of account
\nand that  book of  account has\tbeen regularly\tkept in\t the
\ncourse of  business. From  the\tabove  Section\tit  is\talso
\nmanifest that  even if\tthe above requirements are fulfilled
\nand the\t entry\tbecomes\t admissible  as\t relevant  evidence,
\nstill,\tthe  statement\tmade  therein  shall  not  alone  be
\nsufficient evidence, still, the statement made therein shall
\nnot along  be sufficient  evidence to charge any person with
\nliability. It  is thus seen that while the first part of the
\nsection speaks\tof the\trelevancy of  the entry as evidence,
\nthe  second   park  speaks,   in  a  negative  way,  of\t its
\nevidentiary value for charging a person with a liability. It
\nwill, therefore,  be necessary\tfor us\tto  first  ascertain
\nwhether the  entries in\t the documents,\t with which  we\t are
\nconcerned, fulfil  the requirements  of the above section so
\nas to  be admissible  in evidence  and if  this question  is
\nanswered in  the affirmative  then only\t its probative value
\nneed be assessed.\n<\/p>\n
     ‘Book’ ordinarily means a collection of sheets of paper
\nor other  material, blank,  written, or printed, fastened or
\nbound together\tso as to form a material whole. Loose sheets
\nor scraps  of paper  cannot be termed as ‘book’ for they can
\nbe easily  detached and\t replaced. In  dealing with the work
\n‘book’ appearing in Section 34<\/a> in Mukundram vs. Dayaram [AIR
\n1914 Nagpur  44], a decision on which both sides have placed
\nreliance, the Court observed:-\n<\/p>\n
     ”\tIn   its   ordinary   sense   it
\n     signifies a collection of sheets of
\n     paper bound  together in  a  manner
\n     which  cannot   be\t  disturbed   or
\n     altered except  by\t tearing  apart.
\n     The binding  is of\t a kind which is
\n     not intended to the moveable in the
\n     sense  of\t being\tundone\tand  put
\n     together  again.  A  collection  of
\n     papers in\ta portfolio, or clip, or
\n     strung together on a piece of twine
\n     which is  intended to  be untied at
\n     will,  would   not,   in\tordinary
\n     English,\t   be\t   called      a
\n     book………………………….
\n     …………………………..I
\n     think the\tterm  “book”  in  S.  34<\/a>
\n     aforesaid may properly’ be taken to
\n     signify, ordinarily,  a  collection
\n     of sheets\tof paper  bound together
\n     with  the\t intention   that   such
\n     binding shall  be permanent and the
\n     papers  used  collectively\t in  one
\n     volume. It is easier however to say
\n     what is not a book for the purposes
\n     of S.  34<\/a>, and I have no hesitation
\n     in holding\t that unbound  sheets of
\n     paper in  whatever quantity, though
\n     filled  up\t  with\tone   continuous
\n     account, are  not a book of account
\n     within the purview of S. 34<\/a>.”\n<\/p><\/blockquote>\n
We must\t observe that  the aforesaid  approach is  in accord
\nwith good  reasoning and  we are  in full agreement with it.
\nApplying the above tests it must be held that the two spiral
\nnote books  (MR 68\/91 and 71\/91) and the two spiral pads (MR
\n69\/91 and  MR 70\/91)  are  “books”  within  the\t meaning  of
\nSection 34<\/a>,  but not the loose sheets of papers contained in
\nthe two files (MR 72\/91 and MR 73\/91).\n<\/p>\n
     The next question is whether the above books fulfil the
\nother requirements  of Section\t34<\/a> so as to be admissible in
\nevidence. Mr.  Altaf Ahmed, the learned Additional Solicitor
\nGeneral, appearing  for the  appellant\tsubmitted  that\t the
\ninterpretation of the High Court that the expressions “books
\nof account”  and “business”  appearing in  the above section
\nrefer and  relate to only such business as may exist between
\ntwo persons  such as  a seller\tand purchaser,\tcreditor and
\ndebtor, is anomalous for such a truncated view would disable
\nlaw  from  dealing  with  illicit  business  and  situations
\nconnected therewith,  such as  the case\t in  hand,  where  a
\nconspiracy was\thatched up  to receive\tmoney through hawala
\nchannels and other sources and to distribute it as bribes to
\npoliticians to\tinfluence  favorable  decisions\t from  them.
\nAccording to  Mr. Altaf\t Ahmed,\t the  expression  “business”
\nunder Section  34<\/a> should receive the widest possible meaning
\nand should  be under stood and construed to mean and include
\nall such  efforts of  people, which  , by  varied methods of
\ndealing with  each  other  are\tdesigned  to  improve  their
\nindividual economic conditions and satisfy their desires. he
\nsubmitted that\tany book  in which monetary transactions are
\nrecorded and  reckoned would answer the description of ‘book
\nof account’  within the\t meaning of  the aforesaid  section.
\nRelying upon the dictionary meanings of the above two words,
\nnamely, ‘business’  and ‘account’  and\tthe  interpretations
\ngiven to  those words by various Courts of law, he submitted
\nthat the  book (MR  71\/91) and the connected documents would
\nclearly prove  that they were books of account maintained in
\nrespect of the illegal business that the Jain were carrying.
\nHis last  contention on\t this aspect  of the matter was that
\nthe transactions  contained in\tMR 71\/91  and the  connected
\ndocuments were an inherently credible record of the business
\nin  question   and  the\t books\twere  maintained  with\tsuch
\nregularity as was compatible with the nature of the business
\nthe Jain brothers were carrying and consequently those books
\nwould be admissible in evidence under Section 34<\/a>.\n<\/p>\n
     Mr. Sibal,\t the learned  counsel for the Jains, did not
\ndispute that  the spiral  note books  and the small pads are
\n‘books’ within\tthe meaning  of\t Section  34<\/a>.  He,  however,
\nstrongly  disputed  the\t admissibility\tof  those  books  in
\nevidence under the aforesaid section on the ground that they
\nwere neither  books of\taccount nor they were regularly kept
\nin the\tcourse of  business. he\t submitted that\t at best  it
\ncould be  said that  those books  were memoranda  kept by  a
\nperson for  his own  benefit. According\t to  Mr.  Sibal,  in
\nbusiness parlance  ‘account’ means  a  formal  statement  of
\nmoney  transactions   between\tparties\t  arising   out\t  of
\ncontractual or\tfiduciary relationship.\t Since the  books in
\nquestion did  not reflect  any such relationship and, on the
\ncontrary, only contained entries of monies received from one
\nset of persons and payment thereof to another set of persons
\nit could  not be  said, by  any stretch\t of imagination that
\nthey were  books of  account,  argued  mr.  Sibal.  He\tnext
\ncontended that\teven if\t it was\t assumed for argument’s sake
\nthat the  above books  were books  of account  relating to a
\nbusiness still they would not be admissible under Section 34<\/a>
\nas they\t were not  regularly kept.  It was urged by him that
\nthe words  ‘regularly kept’  mean that\tthe entries  in\t the
\nbooks  were   contemporaneously\t made\tat  the\t  time\t the
\ntransactions took  place but  a cursory\t glance of the books
\nwould show that the entries were made therein long after the
\npurported  transactions\t  took\tplace.\tIn  support  of\t his
\ncontentions he\talso relied  upon the dictionary meanings of
\nthe words ‘account’ and ‘regularly kept’.\n<\/p>\n
     The word  ‘account’  has  been  defined  in  Words\t and
\nPhrases, permanent Edition, Volume IA at pages 336 to 338 to
\nmean (i)  a claim  or demand  by one  person against another
\ncreating a debtor-creditor relation’ (ii) a formal statement
\nin detail of transactions between two parties arising out of
\ncontracts or  some fiduciary  relation. At  page 343  of the
\nsame book  the word  has  also\tbeen  defined  to  mean\t the
\npreparation of\trecord or  statement of\t transactions or the
\nlike; a statement and explanation of one’s administration or
\nconduct in money affairs; a statement of record of financial
\ntransactions, a\t reckoning or  computation;  a\tregistry  of
\npecuniary transactions or a reckoning of money transactions’
\na written  or printed statement of business dealing or debts
\nand credits;  or a  certain class  of them.  It is thus seen
\nthat while  the former definitions give the word ‘account’ a
\nrestrictive meaning  the  latter  give\tit  a  comprehensive
\nmeaning.  Similarly   is  the\tabove  word   defined,\tboth
\nexpansively, in\t Black’s Law  Dictionary (Sixth\t Edition) to
\nmean’s detailed\t statement of  the  mutual  demands  in\t the
\nnature of  debit and  credit between  parties arising out of
\ncontracts  or\tsome  fiduciary\t relation.  A  statement  in
\nwriting, of debits and credits, or of receipts and payments;
\na list of items of debits and credits, with their respective
\ndates. A  statement of\tpecuniary transactions;\t a record or
\ncourse of  business dealings  between  parties;\t a  list  of
\nstatement  of\tmonetary  transactions,\t such  as  payments,
\nlosses, sales,\tdebits, credits,  accounts payable, accounts
\nreceivable, etc.,  in most cases showing a balance or result
\nof comparison between items of an opposite nature.’
\n     Mr. Altaf Ahmed relied upon the wider definition of the
\nword ‘account’\tas mentioned  above to\tconned that MR 71\/91
\nfulfills the  requirements of  ‘account’  as  it  records  a
\nstatement of  monetary transactions  – such  as receipts and
\npayments –  duly reckoned. Mr. Sibal on the other hand urged
\nthat business  accounts must  necessarily  mean\t only  those
\naccounts which\trecord\ttransactions  between  two  parties,
\narising out  of a  contract or\tsome fiduciary relations ( a
\nmeaning accepted  by the High Court). He  submitted, relying
\nupon the  definition of\t ‘memorandum’ as appearing in ‘words
\nand Phrases’,  that MR 71\/91 could at best be described as a
\nmemorandum of some transactions kept by a person for his own
\nbenefit to  look into  same if\tand when  the occasion would
\narise.\n<\/p>\n
     From the  above definitions  of ‘account’ it is evident
\nthat if\t it has\t to be\tnarrowly construed  to mean a formal
\nstatement of  transactions  between  two  parties  including
\ndebtor-creditor relation  and arising  out of  contract,  or
\nsome fiduciary relations undoubtedly the book MR 71\/91 would
\nnot come  within the  purview of  Section 34<\/a>. Conversely, if
\nthe word ‘account’ is to be given wider meaning to include a
\nrecord of financial transactions properly reckoned the above
\nbook would attract the definition of ‘book of account’.\n<\/p>\n
     It cannot\tbe gainsaid that the words ‘account’, ‘books
\nof account’,  ‘business’ and  ‘regularly kept’\tappearing in
\nSection 34<\/a>   are  of general import. necessarily, therefore,
\nsuch words must receive a general construction unless  there
\nis something  in the  Act itself, such as the subject matter
\nwith which  the Act  is dealing, or the context in which the
\nwords are  used, to  show the  intention of  the legislature
\nthat they must be given a restrictive meaning.\n<\/p>\n
     Indubitably, the Act lays down the rules of evidence to
\nbe applied  and followed  in all  judicial proceedings in or
\nbefore any  Court including  some Courts  – martial. Keep in
\nview the  purpose for  which the  Act was  brought into\t the
\nstatute book  and its  sweep, the words appearing in Section
\n34<\/a>  have  got  to  be  given  their  ordinary,\tnatural\t and
\ngrammatical meaning,  more so,\twhen neither the context nor
\nany principle  of construction\trequires  their\t restrictive
\nmeaning. While\ton this point we may refer to Section 209<\/a> of
\nthe Companies  Act, 1956  which\t expressly  lays  down\twhat
\n‘books of  account’ to be maintained thereunder must contain
\nand, therefore, the general meaning of the above words under
\nthe Act may not be applicable there.\n<\/p>\n
     In Mukundram (supra) after dealing with the word ‘book’
\n(to which  we have  earlier referred) the Court proceeded to
\nconsider what  is meant by a ‘book of account’ under Section
\n34<\/a> and stated as under:\n<\/p>\n
     ” To account is to reckon, and I an
\n     unable to\tconceive any  accounting
\n     which  does   not\tinvolve\t  either
\n     addition or  subtraction or both of
\n     these operations  of arithmetic.  A
\n     book  which   contains   successive
\n     entries of\t items\tmay  be\t a  good
\n     memorandum book;  but  until  those
\n     entries are  totalled or  balanced,
\n     or both,  as the case may be, there
\n     is no  reckoning and no account. In
\n     the making\t of totals  and striking
\n     of balances  from time to time lies
\n     the  chief\t safeguard  under  which
\n     books   of\t   account   have   been
\n     distinguished  from  other\t private
\n     records as\t capable  of  containing
\n     substantive   evidence   on   which
\n     reliance may be placed.”<\/p><\/blockquote>\n
\t  (emphasis supplied)
\nWe have\t no hesitation\tin adopting the reasoning adumbrated
\nin the\tabove observations.  The underlined  portion of\t the
\nabove passage supports the contention of Mr. Altaf Ahmed and
\nrebuts that  of mr. Sibal that Mr 71\/91 is only a memorandum
\nfor the\t entries made  therein are totalled and balanced. We
\nare, therefore,\t of the\t opinion that  MR71\/91 is a ‘book of
\naccount’ as it records monetary transactions duly reckoned.\n<\/p>\n
     Coming now to the word ‘ business’ , we need not search
\nfor its\t meaning in  Black’s Law  Dictionary, or  words\t and
\nPhrases for  this Court\t has dealt with the word in a number
\nof  cases.   In\t Narain\t  Swadesh  Weaving   Mills  vs.\t The
\nCommissioner of\t Excess<\/a> profits\t Tax [ 1955 (1) SCR 952],  a
\nfive judge bench of this Court held that the word ‘business’
\nconnotes some  real, substantial and systematic or organised
\ncourse of  activity or\tconduct with  a set purpose’ and the
\nabove interpretation  was quoted  with approval\t in Mazagaon
\nDock Ltd.  vs. The  Commissioner of  Income Tax\t and  Excess
\nProfits Tax<\/a> [1959 SCR 848]. Again in Barendra Prasad Ray vs.
\nI.T.O<\/a>. [1981  92) SCC 693] this court observed that the word
\n‘business’ is  one of  wide import  ad it  means an activity
\ncarried on  continuously and  systematically by\t a person by
\nthe application\t of his\t labour or  skill  with\t a  view  to
\nearning an  income. The\t activities of the Jain brothers, as
\nsought to  be projected\t by the prosecution now on the basis
\nof the\tmaterials collected  during investigation  (detailed
\nearlier) would, therefore, be ‘business’ for they were being
\ncarried on  continuously in  an organised manner, with a set
\npurpose (be  it illegal) to augment their own resources. mr.
\n71\/91 is, therefore, a book of account kept in the course of
\nbusiness.\n<\/p>\n
     That  brings   us\tto   the  question  whether  it\t was
\n‘regularly kept’  so as\t to satisfy  the last requirement of
\nSection 34<\/a>  to be admissible in evidence as a relevant fact.
\nMr. Altaf  Ahamed submitted  that the above question has got
\nto be  answered keeping\t in view  the nature of business the
\nJain brothers  were carrying  on and  that when\t MR 71\/91 is
\nScanned in  that perspective  it  is  obvious  that  it\t was
\nregularly kept.\t In refuting the above contentions Mr. Sibal
\nrelied upon   $\t 1550 of  American Jurisprudence,  proof  of
\nFacts  (Volume\t34,  Second  Series)  wherein  it  has\tbeen
\nobserved that  not merely  regularity is required; the entry
\nmust have  been fairly\tcontemporaneous with the transaction
\nentered. he  also referred  to $ 1526 of the same book which
\nreads as under:\n<\/p>\n
     The entry\tshould have been made at
\n     or near the time of the transaction
\n     recorded –\t not merely because this
\n     is necessary  in order  to assure a
\n     fairly accurate recollection of the
\n     of\t the  matter,  but  because  any
\n     trustworthy habit of making regular
\n     business  records\twill  ordinarily
\n     involve the  making of  the  record
\n     contemporaneously. The  rule  fixes
\n     no precise\t time’\teach  case  must
\n     depend on its own circumstances.”<\/p><\/blockquote>\n
\t  (emphasis supplied)
\nMr. Sibal  submitted that from a cursory glance of MR 71\/91.
\nIt would  be apparent  that the\t entries  therein  were\t not
\ncontemporaneously made; and, on the contrary, they were made
\nmonthly which necessarily meant that those entries were made
\nlong after  the dates  the purported transactions of receipt
\nand disbursement took place.\n<\/p>\n
     What is  meant by the words ‘regularly kept’ in Section
\n34<\/a> came\t up for\t consideration before different high Courts;
\nand we may profitable refer to some of those decisions cited
\nat the\tBar. In Ramchand Pitembhardar Vs. Emperor [19 Indian
\ncases  534]   it  has  been  observed  that  the  books\t are
\n‘regularly kept\t in the\t corse of business’ if they are kept
\nin pursuance  of some continuous and uniform practice in the
\ncurrent routine\t of the business of the particular person to
\nwhom they  belong. In Kesheo Rao vs. Ganesh [AIR 1926 Nagpur
\n407] the court interpreted the above words as under:\n<\/p>\n
     ”\tThe  regularity\t of  which  S.34
\n     speaks cannot  possibly  mean  that
\n     there  is\t not  mistake\tin   the
\n     accounts, as  that would  make  the
\n     section a\tdead letter; no accounts
\n     could be  admitted in evidence till
\n     they  had\t been\tproved\t to   be
\n     absolutely\t correct,  which  is  in
\n     itself an\timpossible task and also
\n     cannot be begun till they have been
\n     admitted in  evidence. Regularly or
\n     systematically   means   that   the
\n     accounts are  kept according  to  a
\n     set of  rules or  a system, whether
\n     the  accountant  has  followed  the
\n     rules or system closely or not. Nor
\n     is there  any thing  in the section
\n     that says\tthe system  must  be  an
\n     elaborate\tor  reliable  one.  Both
\n     those  matters,   the   degree   of
\n     excellence of  the system\tand  the
\n     closeness with  which it  has  been
\n     followed, affect  the weight of the
\n     evidence of  an  entry,  not  it  s
\n     admissibility.\tThe\troughest
\n     memoranda\t  of\taccounts    kept
\n     generally\taccording  to  the  most
\n     elementary\t system,   though  often
\n     departing from  its, are admissible
\n     in evidence,  but\twould  of  corse
\n     have no weight.”<\/p><\/blockquote>\n
     The  view\t expressed  by\tthe  Kerala  High  Court  in
\nKunjamman Vs.  Govinda Kurukkal\t [1960 kerala Law Times 184]
\nin this\t regard is  that the  words ‘regularly\tkept’ do not
\nnecessarily mean kept in a technically correct manner for no
\nparticular set\tof rule\t or system  of keeping\taccounts  is
\nprescribed under  Section 34<\/a>  of the  Evidence Act  and even
\nmemoranda  of\taccount\t kept\tby  petty   shopkeepers\t are
\nadmissible if they are authentic While dealing with the same
\nquestion the  Punjab & Haryana High Court observe in Hiralal
\nMahabir Pershad\t Vs. Mutsaddilal  Jugal Kishore [(1967) 1 I.
\nL. R\tP &: H 435] that the entries should not be a recital
\nof past\t transactions but an account of transactions as they
\noccur, of  course, not necessarily to be made exactly at the
\ntime of\t occurrence and\t it is\tsufficient if  they are made
\nwithin a reasonable time when the memory could be considered
\nrecent.\n<\/p>\n
     In our  considered opinion\t to ascertain whether a book
\nof account  has been regularly kept the nature of occupation
\nis an eminent factor fr weighment. The test of regularity of
\nkeeping accounts  by a shopkeeper who has dally transactions
\ncannot be  the same as that of a broker in real estates. Not
\nonly their  systems of\tmaintaining books  of  account\twill
\ndiffer but  also the  yardstick of contemporaneity in making
\nentries therein.  We are,  therefore, unable to subscribe to
\nthe view of Mr. Sibal that an entry must necessarily be made
\nin the\tbook of\t account at  or about  the time\t the related
\ntransaction takes  place so  as to enable the book to a pass
\nthe test  of ‘regularly\t kept’. Indeed\tthe above Section ($
\n1526) expressly lays down (emphasised earlier) that the rule
\nfixed no precise time and each case must depend upon its own
\ncircumstances. Applying\t the above  tests and the principles
\nconsistently  laid   down  by\tthe  different\t High  Court
\ns(referred to  above )\twe  find  that\tMr  71\/91  has\tbeen
\nregularly and  systematically maintained. Whether the system
\nin  which  the\tbook  has  been\t maintained  guarantees\t its
\ncorrectness  or\t  trustworthiness  is\ta  question  of\t its
\nprobative value\t and not  of its admissibility as a relevant
\nfact under  Section 34<\/a>.\t The other  three books,  namely  MR
\n68\/91 and MR 70\/91 would not however come within the purview
\nof the above Section, for, even though some of the emonetary
\ntransactions entered  therein appear  to be related to those
\nin MR  70\/91, they  (the three\tbooks ) cannot be said to be
\nbooks of  account regularly  kept. We  need not, however, at
\nthis stage consider whether the entries in these three books
\nwill be relevant under any other provisions of Chapter II of
\nthe Act.\n<\/p>\n
     Now that  we have found ( in disagreement with the High
\nCourt )\t that entries  in MR 71\/91 would be admissible under
\nSection 34<\/a>  of the  Act we  have  to  next  ascertain  there
\nprobative value.  mr. Altaf Ahmed took great pains to decode
\nand analyses  the entries in the above book and, correlating
\nthem with  the entries\tin the other three books and in some
\nof the\tloose sheets  found in the files, submitted that the
\nintrinsic evidence furnished by their internal corroboration
\nand   inter-dependence\t unmistakably\tdemonstrated   their
\nauthenticity and  trustworthiness. According  to  Mr.  Altaf
\nAhmed the entries reflect such periodicity and regularity as
\nwas compatible\twith the  modus operandi  of the business of
\nJain brothers of corrupting public servant including Members
\nof Parliament  and Ministers  in order\tto  influence  their
\ndecisions and  seek their  favours for\tpromotion  of  their
\n(Jain brothers’)  economic interests. Besides, he submitted,
\nthe external  independent corroboration\t of those entries as
\nrequired  under\t  Section  34<\/a>  was  also  available  to\t the
\nprosecution from  the statements  made by Shri Jacob Mathai,
\nDanial P.  Rambal  and\tP.  Ghoshal  and  Ejaj\tIlmi  during
\ninvestigation, in  that, they  have admitted receipts of the
\npayments as  shown against  them in MR. 71\/91. While on this
\npoint, he made a particular reference to those entries in MR
\n71\/91 Which,  according to  him m  if corresponded  with the
\nentries in  the other  books and  the enclose  sheets  would
\nprove the payments to Shri Advani and Shri Shukla. As regard
\ns the  proof of\t authorship  of\t the  entries  he  drew\t our
\nattention to the statements of Pawan Jain , A. V. Pathak and
\nD.K. Guha  who have  stated that the entries were made by J.
\nK. Jain\t and that the Jain Brothers had put their signatures
\nagainst some  of these\tentries\t in  token  of\tverification
\nthereof. He  also drew\tour attention to the written opinion
\ngiven by the hand writing expert in this regard.\n<\/p>\n
     In response  Mr. Sibal submitted that the evidence that
\nhas been  collected during investigation only shows that the
\nentries were  made by  J. K. Jain and that the Jain brothers
\nhad put certain signatures against  some of those entries it
\nthere is  o evidence  whatsoever to  prove that\t movies were
\nactually paid  by the  Jains and  received by  the payees as
\nshown in  the entries,\twithout proof of which no case, even
\nprima facie,  could be said to have ben made out against any
\nof therm. According to Mr. Sibal and Mr. Jethmalani, learned
\nCounsel for  Shri Advani  by more  proof of  a document\t the
\ntruth of  the contents\tthereof is to proved and independent
\nevidence for  that purpose  is required.  In absence  of any
\nsuch evidence,\tthey contended,\t no liability can be foisted
\nunder Section 34<\/a>.\n<\/p>\n
     The rationale behind admissibility of parties’ books of
\naccount as  evidence is\t that the  regularity of  habit, the
\ndifficulty  of\tfalsification  and  the\t fair  certainty  of
\nultimate detection  give  them\tin  a  sufficient  degree  a
\nprobability of trustworthiness (wigmore on evidence $ 1546).
\nSince, however, an element of self interest and partisanship
\nof the\tentrant to  make a  person –  behind whose  back and
\nwithout whose knowledge the entry is made – liable cannot be
\nruled out  the additional safeguard of insistence upon other
\nindependent evidence  to fasten him with such liability, aha
\nbeen provided  for in  Section 34<\/a> by incorporating the words
\nsuch statements\t shall not alone be sufficient to charge any
\nperson with liability.\n<\/p>\n
     The probative  value of  the liability  created  by  an
\nentry in  books of  account came  up  for  consideration  in
\nChandradhar vs.\t Gauhati Bank<\/a>  [1967 (1) S. C. R. 898]. That
\ncase arose  out of  a suit  filed by  Gauhati  Bank  against
\nChandradhar (the  appellant therein ) for recovery of a loan
\nof Rs.\t40,000\/- . IN defence he contended, inter alia, that
\nno loan\t was taken.  To substantiate  their claim  the\tBank
\nsolely relied upon certified copy of the accounts maintained
\nby them\t under Section\t4<\/a> of the Bankers’ Book Evidence Act,
\n1891 and  contended that certified copies became prima facie
\nevidence of  the existence  of the  original entries  in the
\naccounts and  were admissible  to prove\t the payment of loan
\ngiven. The  suit was  decreed by  the trial  Court  and\t the
\nappeal preferred against it was dismissed by the High Court.
\nIn setting  aside the decree this Court observed that in the
\nface of\t the positive  case made  out by Chandradhar that he
\ndid not\t ever borrow  any sum from the Bank, the Bank had to
\nprove that  fact of  such payment and could not rely on mere
\nentries in the books of account even if they were regularily
\nkept in\t the corse of business in view of the clear language
\nof Section  34<\/a> of  the Act. This Court further observed that
\nwhere the  entries were\t not admitted it was the duty of the
\nBank, if it relied on such entries to charge any person with
\nliability, to produce evidence in support of the  entries to
\nshow that  the money  was advanced  as indicated therein and
\nthereafter the\tentries would  be of  use  as  corroborative
\nevidence.\n<\/p>\n
     The same  question came  up  for  consideration  before
\ndifferent High\tCourt on a number of occasions but to eschew
\nprolixity we  would confine  our attention  to some  of\t the
\njudgements on  which Mr.  Sibal relied.\t In Yesuvadiyan\t Vs.
\nSubba Naicker  [A. I. R. 1919 Madras 132] one of the learned
\njudges constituting the Bench had this to say:\n<\/p>\n
     S.34, Evidence  Act<\/a>, lays down that
\n     the entries  in books  of\taccount,
\n     regularly kept  in\t the  course  of
\n     business are  relevant, but  such a
\n     statement\twill   not  alone  e  be
\n     sufficient\t to  charge  any  person
\n     with liability.  That merely  means
\n     that the  plaintiff cannot obtain a
\n     decree  by\t  merely   proving   the
\n     existence of certain entries in his
\n     books of  account even though those
\n     books are\tshown to  be kept in the
\n     regular course of business. he will
\n     have  to\tshow  further\tby  some
\n     independent   evidence   that   the
\n     entires represent\treal and  honest
\n     transactions and  that  the  moneys
\n     were paid\tin accordance with those
\n     entries.  The  legislature\t however
\n     does  not\trequire\t any  particular
\n     form  or\tkind  of   evidence   in
\n     addition to  entries  in  books  of
\n     account, and   I  take it\tthat any
\n     relevant  fact   s\t which\t can  be
\n     treated  as   evidence  within  the
\n     meaning of\t the Evidence  Act<\/a> would
\n     be sufficient  corroboration of the
\n     evidence furnished\t by  entries  in
\n     books of account if true.”\n<\/p><\/blockquote>\n
While concurring  with\tthe  above  observations  the  other
\nlearned Judge stated as under:\n<\/p>\n
     ” If  no other evidence besides the
\n     accounts\twere\tgiven,\t however
\n     strongly  those   accounts\t may  be
\n     supported by the probabilities, and
\n     however strong  may be the evidence
\n     as to the honesty of those who kept
\n     them, such\t consideration could not
\n     alone  with   reference  to   s.34,
\n     Evidence Act<\/a>,  be the  basis  of  a
\n     decree.”<\/p><\/blockquote>\n
\t  (emphasis supplied)
\n     In Beni  Vs. Bisan\t Dayal [ A. I. R 1925 Nagpur 445] it
\nwas observed  tat entries  in book  s of  account are not by
\nthemselves sufficient  to charge  any person with liability,
\nthe reason  being that\ta man  cannot  be  allowed  to\tmake
\nevidence for  himself by what he chooses to write in his own
\nbooks  behind  the  back  of  the  parties.  There  must  be
\nindependent evidence of the transaction to which the entries
\nrelate an  din absence\tof such\t evidence no  relief can  be
\ngiven to  the party  who relies upon such entries to support
\nhis claim against another. In Hira Lal Vs. Ram Rakha [ A. I.
\nR. 1953\t Pepsu 113]  the  High\tCourt,\twhile  negativing  a
\ncontention that\t it having  been proved\t that the  books  of
\naccount were  regularly\t kept  in  the\tordinary  course  of
\nbusiness and  that, therefore, all entries therein should be
\nconsidered to be relevant and to have  been prove, said that
\nthe rule  as laid down in Section 34<\/a> of the Act that entries
\nin the\tbooks of  account regularly  kept in  the course  of
\nbusiness re  relevant whenever\tthey refer  to a  matter  in
\nwhich the  court has  to enquire  was subject to the salient
\nproviso that  such entries  shall not  alone  be  sufficient
\nevidence to  charge any\t person with  liability. It  is not,
\ntherefore, enough  merely to  prove that the books have been
\nregularly kept\tin the\tcourse of  business and\t the entries
\ntherein are correct. It is further incumbent upon the person
\nrelying upon  those  entries  to  prove\t that  the  were  in
\naccordance with facts.\n<\/p>\n
     The evidentiary value of entries relevant under Section
\n34<\/a> was\talso considered\t in Hiralal Mahabir Pershad (supra )
\nI.D. Dua,  ]. (as  he then  was )  speaking  for  the  Court
\nobserved  that\t such  entries\tthough\trelevant  were\tonly
\ncorroborative evidence and it is to be shown further by some
\nindependent evidence  that the\tentries represent honest and
\nreal transactions  and that  monies were  paid in accordance
\nwith those entries.\n<\/p>\n
     A conspectus  of the  above decisions  makes it evident
\nthat even  correct and authentic entries in books of account
\ncannot\t  without     independent    evidence\t of    their
\ntrustworthiness, fix  a liability  upon a person. Keeping in
\nview the  above\t principles,  even  if\twe  proceed  on\t the
\nassumption that the entries made in MR 71\/91 are correct and
\nthe entries  in the  other books  and loose  sheets which we
\nhave already  found to\tbe not\tadmissible in evidence under
\nSection 34<\/a>)  are admissible  under Section  9<\/a> of  the Act to
\nsupport an  inference about  the formers’  correctness still
\nthose entries  would not be sufficient to charge Shri Advani
\nand Shri  Shukla with  the accusations levelled against them
\nfor there  is not an iota of independent evidence in support
\nthereof. In  that view\tof the\tmatter we  need not discuss,
\ndeleve into  or decide\tupon the  contention raised  by\t Mr.
\nAltaf Ahmed  in this  regard. Suffice  it to  say  that\t the
\nstatements of  the for witnesses, who have admitted receipts
\nof the\tpayments as  shown against  them in MR 71\/91, can at
\nbest be\t proof of reliability of the entries so far they are
\nconcerned and  not others. In other words, the statements of
\nthe above  witnesses cannot  be independent  evidence  under
\nSection 34<\/a>  as against\tthe above two respondents. So far as
\nShri Advani is concerned Section 34<\/a> would not come in aid of
\nthe prosecution\t for another  reason also.  According to the
\nprosecution case  itself his name finds place only in one of
\nthe loose  sheets  (sheet  No.\t8)  and\t not  in  MR  71\/91.
\nResultantly, in\t view of  our earlier discussion, section 34<\/a>
\ncannot at all be pressed into service against him.\n<\/p>\n
     Following conclusion of our discussion on Section 34<\/a> of
\nthe Act\t we may\t now turn  to the  principle  and  scope  of
\nSection 10<\/a>  of the  Act and its applicability to the entries
\nin question. This section reads as under:-\n<\/p>\n
     ”\t Things\t   said\t  or   done   by
\n     conspirator in  reference to common
\n     design. – where there is reasonable
\n     ground to\tbelieve that two or more
\n     persons have  conspired together to
\n     commit an\toffence or an actionable
\n     wrong,  any  thing\t said,\tdone  or
\n     written by\t any one of such persons
\n     in\t reference   to\t  their\t  common
\n     intention, after the time when such
\n     intention was firs t entertained by
\n     any one of them, is a relevant fact
\n     as\t against  each\tof  the\t persons
\n     believed to  be so\t conspiring,  as
\n     well for the purpose of proving the
\n     existence of  the conspiracy as for
\n     the purpose  of  showing  that  any
\n     such person was a party to it.”\n<\/p>\n
In dealing  with this  Section in  Sardul Singh vs. State of
\nBombay<\/a> [   AIR\t1957 S. C. 747], this court observed that it
\nis  recognised\t on  well  established\tauthority  that\t the
\nprinciple under\t lining the  reception of  evidence  of\t the
\nstatements, acts  and  writings\t of  one  co-conspirator  as
\nagainst the  other is on the theory of agency. Ordinarily, a
\nperson cannot  be made\tresponsible for\t the acts  of  other
\nunless they  have been\tinstigated by  him or  done with his
\nknowledge or  consent. This section provides an exception to
\nthat rule, by laying down that an overt act committed by any
\none of\tthe conspirators  is  sufficient,  (on\tthe  general
\nprinciples of  agency) to  make it the act of all. But then,
\nthe opening  of words  of the  Section makes  in  abundantly
\nclear that  such concept  of agency  can be availed of, only
\nafter the Court is satisfied that there is reasonable ground
\nto believe  that they have conspired to commit an offence or
\nan actionable  wrong. In  other\t words,\t only  when  such  a
\nreasonable ground exists, any thing said, done or written by
\nany one\t of then  in reference\tto  their  common  intention
\nthereafter is  relevant against the others, not only for the
\npropose of  proving the existence of the conspiracy but also
\nfor proving  the existence  of the  conspiracy but  also for
\nproving that  the other person was a party to it. In Bhagwan
\nSwarup vs.  State of Maharashtra [ A. I. R 1965 S. C. 682 ],
\nthis court analysed the section as follows:-\n<\/p>\n
     ” (1)  There shall be a prima facie
\n     evidence  affording   a  reasonable
\n     ground for\t a Court to believe that
\n     two or  more persons are members of
\n     a\tconspiracy;   (2)  if  the  said
\n     condition is  fulfilled, any  thing
\n     said, done or written by any one of
\n     them in  reference to  their common
\n     intention will  be evidence against
\n     the other; (3) any thing said, done
\n     or written\t by him should have been
\n     said, done\t or written by him after
\n     the intention was formed by any one
\n     of\t them;\t(4)  it\t would\talso  be
\n     relevant  for   the  said\t purpose
\n     against  another  who  entered  the
\n     conspiracy whether\t it was\t said  ,
\n     done or  written before the entered
\n     the conspiracy  or after  the  left
\n     it’ and  (5) it  can only\tbe  used
\n     against a co-conspirator and not in
\n     his favour.”<\/p><\/blockquote>\n
     In the  light  of\tthe  above  principles\twe  may\t now
\nconsider the  arguments canvassed by Mr. Altaf Ahmed to made
\nthe entries  in the  books and the enclose sheets admissible
\nunder the  above section  as relevant evidence. He submitted
\nthat the materials collected during investigation and placed
\non record  clearly establish  the  existence  of  a  general
\nconspiracy amongst  jains to promote their economic interest
\nby corrupting  public servant.\tHe next\t contended that\t the
\nmaterials further  disclosed that in order to accomplish the
\ndesign of  the general\tconspiracy,  a\tnumber\tof  separate
\nconspiracles  with  similar  purpose  had  been\t hatched  up
\nbetween jains and different public servants.\n<\/p>\n
     At the  outset we\tmay point  out that  no\t charge\t was
\nframed against the Jains from having entered into a criminal
\nconspiracy amongst  themselves (even  though  such  was\t the
\nallegation in  the charge  sheet). We  need not,  therefore,
\nconsider the  materials collected  during investigation from
\nthat perspective.  Indeed ,  according\tto  the\t charges  of
\nconspiracy all\tthe respondents were parties thereto and the
\nconspiracy existed  for the  period from  February, 1990  to
\nJanuary, 1991.\tTherefore we have to ascertain whether there
\nis Prima facie evidence affording a reasonable ground for us
\nto believe about its such existence.\n<\/p>\n
     To persuade  us to\t give an  affirmative answer  to the
\nabove question\tmr. Altaf  Ahmed drew  our attention  to the
\nstatements of  Jacob Mathai  (L. W.  4), Dr. P.K. Magu (L.W.\n<\/p>\n
14), Vijay  Kumar Verma\t (L. W. 15), Bharat Singh (L. W. 16)
\nC. D.D\tReddy (L.  W. 17),  S.R. Choudhary  (L. W.  18), Ram
\nPrasad (L.  W. 19),  H. P.  Guha Roy (L. W. 20) and Narendra
\nSingh (L.  W. 21).  On perusal\tof their  statements we find
\nthat  some   of\t them  are  irrelevant\tto  the\t charges  of
\nconspiracy with\t which we are now concerned while others, to
\nthe extent  they can  be translated  into legally admissible
\nevidence, only\tindicate that  Shri Shukla  was known to the
\njain Brothers  and had\tgone to\t their residence  on  formal
\noccasions. The\tabove statements cannot be made a reasonable
\nground to  believe that all of them have conspired together.
\nSo far\tas Shri Advani is concerned, we find that no one has
\neven spoke  about him  in their\t statements. Since the first
\nrequirement of\tSection 10<\/a>  is not  fulfilled the entired in
\nthe documents  cannot be  pressed  into\t service  under\t its
\nlatter part .\n<\/p>\n
     Lastly, comes  the questions  whether the\tentries\t are
\n‘admissions’ within  the meaning of Section 17<\/a> of the Act so
\nas to  be admissible  as relevant evidence under Section 21<\/a>;
\nand if\tso, as\tagainst whom  can the  entries be  prove. IN
\nSection 17<\/a>  admission has  been defended  to be a statement,
\noral or\t documentary, which suggests any inference as to any
\nfact in\t issue or  relevant fact and which is made by any of
\nthe persons,  and under\t the circumstances, mentioned in the
\nsubsequent Sections  (Section 18<\/a>  to 21<\/a>). Section 18<\/a>, so far
\nas it  is relevant  for our  present purposes, provides that
\nstatements made by apart to the proceeding or by an agent to
\nany  such   party,  whom   the\tCourt\tregards\t under\t the
\ncircumstances  of  the\tcase,  has  expressly  or  impliedly
\nauthorised by  him to  make them  are admissions. Section 21<\/a>
\nreads as under:\n<\/p>\n
     Proof of admissions against persons
\n     making them  and  by  or  on  their
\n     behalf –  admissions  are\trelevant
\n     and may  be proved\t as against  the
\n     person  who   makes  them,\t or  his
\n     representative in interest; but hey
\n     cannot be proved by or on behalf of
\n     the person who makes them or by his
\n     representative in\tinterest  except
\n     in the following cases:-
\n     (1) An  admission may  be proved by
\n\t  or on\t behalf\t of  the  person
\n\t  making it,  when it is of such
\n\t  a nature,  that if  the person
\n\t  making it  were dead, it would
\n\t  be relevant  as between  third
\n\t  persons under Section 32<\/a>.
\n     (2) An  admission may  be proved by
\n\t  or on\t behalf\t of  the  person
\n\t  making it, when it consists of
\n\t  a statement  of the  existence
\n\t  of any  state of mind or body,
\n\t  relevant or  in issue, made at
\n\t  or about  the time  when  such
\n\t  state of mind or body existed,
\n\t  and is  accompanied by conduct
\n\t  rendering    its     falsehood
\n\t  improbable.<\/p><\/blockquote>\n
     (3) An  admission may  be proved by
\n\t  or on\t behalf\t of  the  person
\n\t  making it,  if it  is relevant
\n\t  otherwise    than\tas    an
\n\t  admission.”<\/p><\/blockquote>\n
From a combined reading of the above Sections it is manifest
\nthat an oral or documentary statement made by a party or his
\nauthorised agent, suggesting any inference as to any fact in
\nissue or  relevant fact\t may be proved against a party t the
\nproceeding or his authorised agent as ‘admission’ but, apart
\nform exceptional  cases (as contained in Section 21<\/a>), such a
\nstatement cannot  be proved  by or on their behalf. While on
\nthis  point   the  distinction\t between   ‘admission’\t and
\nconcession’ needs  to be  appreciated.\tIn  absence  of\t any
\ndefinition of  ‘confession’ in\tthe Act judicial opinion, as
\nto its\texact meaning,\twas not unanimous until the judicial
\nCommittee made an authoritative pronouncement about the same
\nin Pakala  Narayana vs\tEmperor<\/a> [AIR  1939 privy Council 47]
\nwith these words:-\n<\/p>\n
     ” ….  a\tconfession  must  either
\n     admit in  terms the  offence, or at
\n     any  rate\t substantially\tall  the
\n     facts   which    constitutes    the
\n     offence. An  admission of a gravely
\n     incriminating    fact,    even    a
\n     conclusively incriminating fact, is
\n     not of  itself a confession, eg. An
\n     admission that  the accused  is the
\n     owner   of\t  an   was   in\t  recent
\n     possession of the knife or revolver
\n     which\tcaused\t    a\t   death
\n     …………………..
\n     …………………………<\/p><\/blockquote>\n
     have a  general term for use in the
\n     three\tfollowing      articles,
\n     confession secured\t by  inducement,
\n     made  upon\t  oath,\t made\tunder  a
\n     promise of\t secrecy. The definition
\n     is not  contained in  the\tEvidence
\n     Act<\/a>, 1872, and in that Act it would
\n     not be  consistent with the natural
\n     use   of\tlanguage   to\tconstrue
\n     confession as  a  statement  by  an
\n     accused ‘suggesting  the  inference
\n     that he committed the crime”.<\/p><\/blockquote>\n
The  above   statement\tof   law  has\tbeen  approved\t and
\nconsistently followed  by this\tCourt. [Palvinder  Kaur\t vs.
\nState of  Punjab<\/a> (1953)\t S.C.R. 94,  Om Parkash vs. State of
\nU.P<\/a>. A.I.R.  1960 SC  409 and  Veera Ibrahim  vs.  State  of
\nMaharashtra<\/a> (1976) 3 S.C.R. 692].\n<\/p>\n
     It\t is   thus  seen  that\tonly  voluntary\t and  direct
\nacknowledgement\t of   guilt  is\t a  confession\tbut  when  a
\nconfession falls  short of  actual admission  guilt  it\t may
\nnevertheless be used as evidence against the person who made
\nit or  his authorised  agent as an ‘admission’ under section\n<\/p>\n
21. The\t law in\t this regard  has been\tclearly – and in our
\nconsidered view\t correctly –  explained in  Monir’s  law  of
\nEvidence (New  Edition at  pages 205  and 206), on which mr.
\nJethmalani relied  to bring home his contention that even if
\nthe entries  are treated  as ‘admission’ of jains still they
\ncannot be  used against\t Shri Advani.  The relevant  passage
\nreads as under:-\n<\/p>\n
     ”\t  The\t  distinction\t between
\n     admissions and  confessions  is  of
\n     considerable  importance\tfor  two
\n     reasons. Firstly,\ta statement made
\n     by an  accused person,  if it is an
\n     admission,\t  is\tadmissible    in
\n     evidence under  Section 21<\/a>\t of  the
\n     evidence Act,  unless the Statement
\n     amounts to\t a  confession\tand  was
\n     made to  a person\tin authority  in
\n     consequence   of\t some\timproper
\n     inducement, threat\t or promise,  or
\n     was made at a time when the accused
\n     was in custody of a police officer.
\n     If a  statement  was  made\t by  the
\n     accused in\t the  circumstance  just
\n     mentioned it  s admissibility  will
\n     depend upon  the  determination  of
\n     the question  whether it  does  not
\n     does not amount to a confession. If
\n     it amounts to a confession, it will
\n     be inadmissible, but if it does not
\n     amount  to\t  a  confession.  If  it
\n     amounts  to  a  confession.  If  it
\n     amounts to a confession, it will be
\n     inadmissible, but\tif it  does  not
\n     amount to\ta confession, it will be
\n     admissible under  Section 21<\/a> of the
\n     Act as  an admission, provided that
\n     it suggests  an inference\tas to  a
\n     fact  which  is  in  issue\t in,  or
\n     relevant to,  the case  and was not
\n     made to  a police\tofficer\t in  the
\n     course of\tan  investigation  under
\n     Chapter XIV of the Code of criminal
\n     procedure.\t Secondly,  a  statement
\n     made  by\tan  accused   person  is
\n     admissible against\t others who  are
\n     being jointly  tried with\thim only
\n     if\t the   statement  amounts  to  a
\n     confession.  Where\t  the  statement
\n     falls short  of a confession, it is
\n     admissible only  against its  maker
\n     as an  admission  and  not\t against
\n     those who\tare being  jointly tried
\n     with him. Therefore, from the point
\n     of\t view\tof  Section  30<\/a>\t of  the
\n     Evidence Act  also the  distinction
\n     between   and   admission\t and   a
\n     confession\t  is\tof   fundamental
\n     importance.”<\/p><\/blockquote>\n
\t  (emphasis supplied)
\n     In the  light of the preceding discussion we proceed to
\nconsider the  validity of  the arguments  canvassed by\tShri
\nAltaf Ahmed  in this  regard. mr.  Altaf Ahmed urged that it
\nbeing a\t settled principle of law that statements in account
\nbooks of  a person  are ‘admissions’ and can be used against
\nhim even  though those statements were never communicated to
\nany  other  person,  the  entries  would  be  admissible  as
\nadmission of  J. K.  Jain, who\tmade  them  that  apart,  he
\ncontended, they\t would be  admissible against  jain brothers
\nalso as\t they were  made under\ttheir authority\t as would be
\nevident from their endorsements\/signatures appearing against
\nbelow some  of\tthose  entries.\t In  support  of  his  first
\ncontention he  relied upon  the following  passage from\t the
\njudgment of  his Court in Bhogilal Chunilal pandya vs. State
\nof Bombay [(1959) Supp. (1) SCR 310]:\n<\/p>\n
     ” The  first group\t of sections  in
\n     the Act in which the word ‘
\n     statement ‘  occurs, are  ss. 17<\/a> to
\n     21<\/a>,  which\t deal  with  admissions.
\n     Section   17<\/a>   defines   the   word
\n     ‘admission’, ss.  18<\/a> to 21<\/a> lay down
\n     what statements are admissions, and
\n     s.\t 21<\/a>  deals  with  the  proof  of
\n     admissions against\t persons  making
\n     them. The\tword s used in ss. 18<\/a> to
\n     21<\/a>\t  in\tthis   connection    are
\n     ‘statements made  by.’. It\t is  not
\n     disputed that  statements\tmade  by
\n     persons may  be used  as admissions
\n     against them  even though\tthey may
\n     not have  been communicated  to any
\n     other    person.\t For\texample.
\n     Statements in  the account books of
\n     a\tperson\t showing  that\t he  was
\n     indebted  to   another  person  are
\n     admissions\t which\t can   be   used
\n     against  him   even  though   these
\n     statements were  never communicated
\n     to any  other person.  illustration\n<\/p><\/blockquote>\n
     (b) of  s. 231<\/a>  also shows that the
\n     word  ‘statement’\t used  in  these
\n     sections does not necessarily imply
\n     that   they    must    have    been
\n     communicated to  any other\t person.
\n     In\t the  Illustration  in\tquestion
\n     entries made  in the book kept by a
\n     ship’s  captain   in  the\tordinary
\n     corse  of\t business   are\t  called
\n     statements,  though  these\t entries
\n     are not  communicated to  any other
\n     person. An\t examination, therefore,
\n     of these sections show that in this
\n     part   of\t  the\tAct   the   word
\n     ‘statement’ has  been used\t in  its
\n     primary meaning  namely, ‘something
\n     that is  stated’  communication  is
\n     not necessary  in order that it may
\n     be a statement.”.<\/p><\/blockquote>\n
     Even if  we are  to accept the above contentions of Mr.
\nAltaf Ahmed  the entries,  [which re  statements’ as held by
\nthis Court in Bhogilal chunilal (supra) and hereinafter will
\nbe so  referred to  ],\tbeing  ‘admissions’  –\tand  not  t’
\nconfession’- cannot  be used  as against Shri Advani or Shri
\nShukla. however,  as against  jains the\t statements  may  be
\nproved as  admissions under  Section 18<\/a> read with Section 21<\/a>
\nof the Act provided they relate to ‘
\nany fact  in issue  or relevant fact.’ Needless to say, what
\nwill be\t ‘facts in  issue’ or ‘relevant facts’ in a criminal
\ntrial will  depend upon,  and will  be\tdelineated  by,\t the
\nnature of  accusations made  or charges levelled against the
\nperson indicated.  In the  two\tcase  with  which  were\t are
\nconcerned in  these appeals,  the gravamen  of\tthe  charges
\nwhich were  framed against  Jains in  one  of  them  (quoted
\nearlier) and  were to be framed in the other pursuant to the
\norder of  the trial  Court (quoted  earlier)  is  that\tthey
\nentered into  two separate  agreements; one with Shri Shukla
\nand the\t other with Shri Advani, in terms of which they were
\nto make\t certain payments  to them  as a gratification other
\nthan legal  remuneration as  a motive  or reward for getting
\ntheir favour  while  they  were\t ‘public  servants’  and  in
\npursuance of the said agreements payments were actually made
\nto  them   thereby  the\t  Jains\t committed  the\t offence  of
\nconspiracy under Section 120<\/a> b of the Indian Penal code; and
\nunder Section  12<\/a> of  the prevention of Corruption Act<\/a>, 1988
\n(P.C. Act<\/a>  for short),\tin that, they abetted the commission
\nof offences  under Section  7<\/a> of  the Act by Shri Shukla and
\nShri Advani.\n<\/p>\n
     It is  thus seen  that the\t prosecution sought to prove
\nthat there  were tow separate conspiracies, in both of which
\nJains together\tfigured as  the common party and Shri Advani
\nor Shri\t Shukla, as  the other . Since we have already found
\nthat the  prosecution has  not been able to made out a prima
\nfacie case  to prove  that Shri\t Advani and Shri shukla were
\nparties to  such conspiracies, the charges of conspiracy, as
\nframed\/sought to  be framed,  cannot stand  also against the
\nJains, for the simple reason that in a conspiracy there must
\nbe two\tparties. Resultantly  ,\t the  statements  cannot  be
\nproved as  admission of\t Jains of such conspiracy. We hasten
\nto add\that the case the prosecution intended to project now
\nwas not\t that there  was a  conspiracy amongst\tthe Jains to
\noffer illegal  gratification to\t Shri Advani and shri Shukla
\nand that  pursuant thereto  the latter accepted the Same. We
\nneed not, therefore, dilate of the question whether, if such
\nwas the\t case of  the prosecution,  the statements  could be
\nproved against the Jains as their admission.\n<\/p>\n
     Thus said\twe may\tnow turn our attention to Section 12
\nof the P. C. Act. That Section reads as under:-\n<\/p>\n
     ”\tPunishment   for   abetment   of
\n     offences defined  in section  7<\/a>  or\n<\/p><\/blockquote>\n
     11…  Whoever  abets  any\t offence
\n     punishable\t under\t Section  7<\/a>   or
\n     section  11<\/a>  whether  or  not  that
\n     offence is committed in consequence
\n     of\t  that\t  abetment,   shall   be
\n     punishable with  imprisonment for a
\n     term which\t shall be  not less than
\n     six months\t but which may extend to
\n     five years and shall also be liable
\n     to fine.”<\/p><\/blockquote>\n
     Undoubtedly for  a person to be guilty thereunder it is
\nnot necessary  that the\t offences mentioned  therein  should
\nhave  been   committed\tprusuan\t  to  the   abetment.  Since
\n‘abetment’ has\tnot been  defined under\t the P.C. Act<\/a> we may
\nprofitable y  refer to its exhaustible definition in Section
\n107<\/a> of\tthe Indian  Penal Code. As per that Section a person
\nabets the  doing of  a thing  when he  does any\t of the acts
\nmentioned in the following three clauses;\n<\/p>\n
     (i) instigates  any  person  to  do
\n\t  that thing, or\n<\/p><\/blockquote>\n
     (ii) engages with one or more other
\n\t  person  or   persons\tin   any
\n\t  conspiracy for  the  doing  of
\n\t  that thing …….., or\n<\/p><\/blockquote>\n
     (iii) intentionally  aids,\t by  any
\n\t  act or  illegal omission,  the
\n\t  doing of that things.\n<\/p><\/blockquote>\n
So far\tas the\tfirst two  clauses are\tconcerned it  is not
\nnecessary that\tthe  offence  instigated  should  have\tbeen
\ncommitted. For\tunder standing\tthe scope of the word ” aid”
\nin  the\t third\tclause\tit  would  be  advantageous  to\t see
\nExplanation 2 in Section 107<\/a> I.P.C. which reads thus:\n<\/p>\n
     ” whoever, either prior to or t the
\n     time of  the commission  of an act,
\n     does  any\t thing\t in   order   to
\n     facilitate the  commission of  that
\n     act, and  thereby\tfacilitates  the
\n     commission thereof,  is said to aid
\n     the doing of that act.”\n<\/p><\/blockquote>\n
It is  thus clear  that under the third clause when a person
\nabets by aiding, the act so aided should have been committed
\nin order  to make  such aiding\tan offence.  In other words,
\nunlike the  first tow  clauses the third clause applies to a
\ncase where the offence is committed.\n<\/p>\n
     Since in  the instant  case the prosecution intended to
\nprove the  abetment of a Jains by aiding (and not by any act
\nfalling under  the first two clauses adverted to above ) and
\nsince we  have earlier\tfound that  no prima  facie case has
\nbeen made  out against\tShri Advani and Shri Shukla of their
\nhaving committed  the offence  under Section  7<\/a> of  the P.C.
\nAct, the  question of  Jains’ committing  the offence  under
\nSection 12<\/a> and , for that matter, their admission in respect
\nthereof –  does not arise. Incidentally, we may mention that
\nthe abetment by conspiracy would not also arise here in view
\nof our earlier discussion.\n<\/p>\n
     Before we\tconclude it  need be  mentioned that another
\nquestion  of   considerable  importance\t that  came  up\t for
\nconsideration  in  these  appeals  was\twhether\t members  of
\nparliament come within the definition of ‘public servant’ in
\nthe P.C.  Act<\/a> so  as to\t make  the  respondents\t liable\t for
\nprosecution for\t alleged commission of offences there under.
\nWe did\tnot deem it necessary to go into that question as we
\nfound, proceeding  on the  assumption that  they could be so
\nprosecuted, that  no prima  facie case\twas made out against
\nany of\tthe respondents\t to justify  the changes  that\twere
\nframed against\tthe Jains  and Shri Shukla ( in one case ) ;
\nand were  to be framed against Jains and Shri Advani (in the
\nother  )   pursuant  to\t  the  order  of  the  trial  Court.
\nAccordingly, we\t dismiss these appeals keeping this question
\nof law open .<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Central Bureau Of Investigation vs V.C. Shukla & Ors on 2 March, 1998 Author: M.K. Mukherjee Bench: M.K. Mukherjee, S.P. Kurdukar, K.T. Thomas PETITIONER: CENTRAL BUREAU OF INVESTIGATION Vs. RESPONDENT: V.C. SHUKLA & ORS. DATE OF JUDGMENT: 02\/03\/1998 BENCH: M.K. MUKHERJEE, S.P. KURDUKAR, K.T. THOMAS ACT: HEADNOTE: JUDGMENT: J U D […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-247345","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCentral Bureau Of Investigation vs V.C. 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