1998 Supreme(SC) 294

1998(2) Supreme 329
SUPREME COURT OF INDIA
(From Delhi High Court)
M.K. Mukherjee, S.P. Kurdukar and K.T. Thomas, JJ.
Central Bureau of Investigation -Appellants
versus
V.C. Shukla & Ors. -Respondents
Criminal Appeal Nos. 247-256 of 1998
(Arising out of SLP (Crl.) Nos. 1716-1725 of 1997)
Decided on 2-3-1998
Counsel for the Parties :
For the Appellant : Altaf Ahmed, Additional Solicitor General, P. Parmeswaran, A. Mariarputham, Advocates.
For the Respondents : Ram Jethmalani, Arun Jaitley, D.D. Thakur, Kapil Sibel, R.K. Anand, Sr. Advocates, Mrs. Rakhi Ray, Ms. Bina Gupta, Harjinder Singh, R.N. Joshi, Navin, Harish Gulati, H.S. Bhullar, Pawan Narang, S.K. Saxena, Ms. Rashmi, Kathpalia, S.P. Sharma, Arun Birbal, Vineet Kumar, Jayant Bhushan, Advocates.

IMPORTANT POINT
Though Entries in Diaries of Jain (MR 71/91) would be admissible in evidence u/s 34 of Evidence Act but they have no probative value as there is no independent evidence of their trustworthiness to fix liability on a person. These entries are not admission within the meaning of Section 17 so as to attract Section 21 of Evidence Act. In any case Section 10 is not attracted. Thus Supreme Court has affirmed clearance of Shri Advani and Shri Shukla by the High Court of Delhi in Jain Brothers Hawala case.

Headnote:(i) Evidence Act, 1872-Sections 34, 10 and 17-Entries in Diaries and Files recovered from J.K. Jain, an employee of Jain Brothers-Entries recorded in abbreviated form of digits and initials -Showing receipts from foreign and payments to influential public servants and politicians for official favours-Payments to Shukla of Rs. 39 lacs and to Advani of Rs. 25 + 35 lacs with that oblique motive-CBI claiming that entries in the documents would be admissible u/ss 34, 10 and 17 of Evidence Act-Accused contending that the nature and character of documents inhibited their admissibility under said sections-Trial Court held them to be documents u/s 3 provable u/ss 61 and 62-High Court set it aside and held these documents were not admissible in evidence u/s 34 or Section 10 and Section 17-Whether correct?

       Held : (Regarding Section 34) from a plain reading of the Section it is manifest that to make an entry relevant thereunder it must be shown that it has been made in a book, that book is a book of account and that book of account has been regularly kept in the course of business. From the above Section it is also manifest that even if the above requirements are fulfilled and the entry becomes admissible as relevant evidence, still, the statement made therein shall not alone be sufficient evidence to charge any person with liability. It is thus seen that while the first part of the section speaks of the relevancy of the entry as evidence, the second part speaks, in a negative way, of its evidentiary value for charging a person with a liability. It will, therefore, be necessary for us to first ascertain whether the entries in the documents, with which we are concerned, fulfil the requirements of the above section so as to be admissible in evidence and if this question is answered in the affirmative then only its probative value need be assessed. (Para 17)

       Then held : Now that we have found (in disagreement with the High Court) that entries in MR 71/91 would be admissible under Section 34 of the Act we have to next ascertain their probative value. (Para 32)

       Further held : A conspectus of the above decisions makes it evident that even correct and authentic entries in books of account cannot without independent evidence of their trustworthiness, fix a liability upon a person. Keeping in view the above principles, even if we proceed on the assumption that the entries made in MR 71/91 are correct and the entries in the other books and loose sheets (which we have already found to be not admissible in evidence under Section 34) are admissible under Section 9 of the Act to support an inference about the formers correctness still those entries would not be sufficient to charge Shri Advani and Shri Shukla with the accusations levelled against them for there is not an iota of independent evidence in support thereof. In that view of the matter we need not discuss, delve into or decide upon the contention raised by Mr. Altaf Ahmed in this regard. 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. So far as Shri Advani is concerned Section 34 would not come in aid of the prosecution for another reason also. According to the prosecution case itself his name finds place only in one of the loose sheets (Sheet No. 8) and not in MR 71/91. Resultantly, in view of our earlier discussion, Section 34 cannot at all be pressed into service against him. (Para 39)

       (ii) Evidence Act, 1872-Sections 34, 10 and 17-Entries in Diaries and files recovered-Allegation of CBI that they establish the existence of general conspiracy among Jains to promote their economic interest by corrupting public servants, including, politicians-Whether correct? (No)-Section 10 thus not attracted.

       Held : At the outset we may point out that no charge was framed against the Jains for having entered into a criminal conspiracy amongst themselves (even though such was the allegation in the charge sheet). We need not, therefore, consider the materials collected during investigation from that perspective. Indeed, according to the charges of conspiracy all the respondents were parties thereto and the conspiracy existed for the period from February, 1990 to January, 1991. Therefore we have to ascertain whether there is prima facie evidence affording a reasonable ground for us to believe about its such existence. (Para 42)

       To persuade us to give an affirmative answer to the above question Mr. Altaf Ahmed drew our attention to the statements of Jacob Mathai (L.W. 4), Dr. P.K. Magu (L.W. 14), Vijay Kumar Verma (L.W. 15), Bharat Singh (L.W. 16) C.D.D. Reddy (L.W. 17), S.R. Choudhary (L.W. 18), Ram Prashad (L.W. 19), H.P. Guha Roy (L.W. 20) and Narendra Singh (L.W. 21). On perusal of their statements we find that some of them are irrelevant to the charges of conspiracy with which we are now concerned while others, to the extent they can be translated into legally admissible evidence, only indicates 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 fulfilled the entries in the documents cannot be pressed into service under its latter part. (Para 43)

       (iii) Evidence Act, 1872-Sections 34, 10 and 17-Entries in Diaries and files recovered-Whether the entries are admissions within the meaning of Section 17 so as to be admissible u/s 21? (No). (Paras 44 to 48)

       (iv) Prevention of Corruption Act, 1988-Section 12-Punishment for abetment of offences defined in Section 7 or 11-Whether attracted in the case? (No).

       Held : Since in the instant case the prosecution intended to prove the abetment of Jains by aiding (and not by any act falling under the first two clauses adverted to above) and since we have earlier found that no prima facie case has been made out against Shri Advani and Shri Shukla of their having committed the offence under Section 7 of the P.C. Act, the question of Jains committing the offence under Section 12 - and, for that matter, their admission in respect thereof - does not arise. Incidentally, we may mention that the abetment by conspiracy would not also arise here in view of our earlier discussion. (Para 51)

       (v) Prevention of Corruption Act, 1988-Sections 7, 12, 13(2) r/w 13(1)(d) r/w Section 120B IPC-Whether Members of Parliament come within the definition of Public Servant in the P.C. Act? (Left open).

       Held : Before we conclude it need be mentioned that another question of considerable importance that came up for consideration in these appeals was whether members of Parliament come within the definition of public servant in the P.C. Act so as to make the respondents liable for prosecution for alleged commission of offences thereunder. We did not deem it necessary to go into that question as we found, proceeding on the assumption that they could be so prosecuted, that no prima facie case was made out against any of the respondents to justify the charges that were framed against the Jains and Shri Shukla (in one case); and were to be framed against Jains and Shri Advani (in the other) pursuant to the order of the trial Court. Accordingly, we dismiss these appeals keeping this question of law open. (Para 52)