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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 G M E N T M.K. MUKHERJEE, J      Leave granted.      On May,  3, 1991  the Central  Bureau of  Investigation (CBI), New Delhi, searched the premises of J.K. Jain at G-36 Saket, New  Delhi to  work out an information received while investigating RC  Case No. 5(S)/91 SIU (B)/CBI/New Delhi. In course of  the search they recovered, besides other articles and documents,  two diaries,  two small  note books  and two files containing details of receipts of various amounts from different sources  recorded in  abbreviated forms of ditties and initials  and details  of payments  to  various  persons recorded in similar fashion. Preliminary investigation taken up by  the  Cbi  to  decode  and  comprehend  those  entries revealed payments  amounting to  Rs. 65.47  crores,  out  of which 53.5 crores had been illegally transferred from abroad through hawala  channels, during  the years  1988 to 1991 to 115 persons including politicians, some of whom were members of either  Houses of  parliament during the relevant period, officials of  government and Public Sector Undertakings, and friends of  S.K. Jain,  B. R.  Jain, and  N.K. Jain, who are three brothers  carrying on different businesses. It further revealed that the Jain brothers and J. K. Jain, who is their employee, had acted as middlemen in the award of certain big projects in  the power  sector of the Government of India to different bidders;  that they  had  official  dealings  with politicians and public servants whose names were recorded in the diaries  and the  files;  and  that  some  of  them  had accepted illegal gratification other than legal remuneration from jains  as a  reward for  giving them  and the companies they own  and manage  various contracts.  On such revelation the CBI  registered a case on march 4, 1995 under Sections 7 and 12 of the prevention of Corruption Act, 1988 and Section 56 read with Section 8(1) of the Foreign Exchange Regulation Act, 1973 against the Jains, some public servants and others being RC  No.  1(A)/95  ACU  (VI)  and    on  completion  of investigation filed 34 charge-sheets (challans) in the Court of the Special Judge, New Delhi against various politicians, Government servants  and jains.  In one of the above charge- sheets (C.S. No. 4 dated 16.1.1996) Shri Lal Krishna Advani,

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who at the material time was a member of the parliament, and the jains  figure as  accused and  the another  (C. S. No. 8 dated 23.1.1996),  Shri V.  C.  Shukla,  also  a  member  of parliament, along with the Jains.      The common  allegations made  in the  above two charge- sheets (from  which these  appeals stem) are that during the years 1988  to 1991 jains entered into a criminal conspiracy among  themselves,  the  object  of  which  was  to  receive unaccounted  money   and  to  disburse  the  same  to  their companies,  friends,   close  relatives  and  other  persons including public servants and political leaders of India. In pursuance of  the said  conspiracy S.K.  Jain  lobbied  with various public  servants and Government organisations in the power and  steel sectors  of  the  Government  of  India  to persuade  them  to  award  contracts  to  different  foreign bidders with  the motive  of getting  illegal kickbacks from them. During the aforesaid period the jain brothers received Rs. 59,12,  11, 685/-,  major portion  of  which  came  from foreign countries  through hawala channels as kickbacks from the foreign  bidders of  certain projects  of  power  sector undertakings and  the balance  from within  the country.  An account of  receipts and  disbursements of  the  monies  was maintained by  J.K. Jain  in the diaries and files recovered from his house and jain brothers authenticated the same.      As against  Shri Advani  the specific allegation in the charge-sheet in  which he  and jains  figure as  accused) is that he  received a sum of Rs. 25 lacs from jains during his tenure as  a member  of the parliament, (besides a sm of Rs. 35 lacs  which was received by him while he was not a member of the  parliament). In the other charge-sheet filed against Shri Shukla  and Jains) it is alleged that during the period 1988 to  1991,  while  shri  Shukla  was  a  member  of  the parliament and  for some  time a  Cabinet  Minister  of  the Central Government  he received  Rs. 39 lacs (approximately) from Jains.      According  to   CBI  the   materials  collected  during investigation clearly disclosed that jains were in the habit of  making  payments  to  influential  public  servants  and political leaders  of high status expecting official favours from them  and the  above payments  were made to Shri Shukla and Shri  Advani with  that oblique motive. Thereby, the Cbi averred,  the   above  persons  (the  respondents  in  these appeals) committed  offences under  Section 120B  I.B.C. and Section 13(2)  read with  Section 13(1)  (d), 7  & 12 of the prevention of Corruption Act, 1988.      The special  judge took  cognisance upon  the above two charge-sheets and  issued processes against the respondents. After entering  appearance they agitated various grounds (to which we  will refer  at the  appropriate stage)  to contend that there  was no  material  whatsoever  to  frame  charges against them.  The Special  Judge, however, the rejected all those contentions  and passed  separate orders  deciding  to frame charges and try the respondents. Pursuant to the order passed in  Case No.  15 of  1996 (arising  out of C.S. No. 8 dated 23.1.1996)  the following  charges were framed against Shri Shukla:-      " Firstly, that you, V. C. Shukla ,      during the  period from  Feb. 90 to      Jan. 91  at Delhi agreed with other      co-accused S.K. Jain, N.K. Jain, B.      R. Jain,  and J.  K. Jain  to do an      illegal  act,  to  wit,  to  obtain      pecuniary advantage  from the  said      Jains  by   abusing  your  official      position as  a public servant being

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    Member  of  Parliament  during  the      said period and also be Minister of      External Affairs  from 21.11.90  to      Jan. 91  and in  pursuance  of  the      said agreement,  you  obtained  the      pecuniary  advantage  and  accepted      Rs. 38,  85,834/- as  gratification      other than  legal remuneration from      the said Jains for a general favour      to them  from you and you, thereby,      committed an offence punishable U/s      120 -B  IC r/w Sec. 7, 12 and 13(2)      r/w 13(1)(d)  of the  prevention of      Corruption Act, 1988 and within the      cognizance of this Court.      Secondly,  that   you  during   the      aforesaid period  at the  aforesaid      place in or aforesaid period at the      aforesaid place  in your  aforesaid      capacity being  a  public  servant,      accepted a  sum  of  Rs.  38,85,834      from  the   above  said  co-accused      persons,  namely  S.K.  Jain,  N.K.      Jain, B.  R. Jain and J. K. Jain as      gratification  other   than   legal      remuneration  for  showing  general      favour to  them and  you,  thereby,      committed an offence punishable U/s      7 of  the prevention  of Corruption      Act, 1988 and within the cognizance      of this Court.      Thirdly,  that   you   during   the      aforesaid   period   and   at   the      aforesaid place,  in your aforesaid      capacity  being  a  public  servant      obtained    pecuniary     advantage      amounting to  Rs. 38,85,834/-  from      the co-accused persons namely, S.K.      Jain, B.  R. Jain,  N.K.  Jain  and      J.K. Jain  by abusing your position      as  a   public  servant   and  also      without  any  public  interest  and      you, thereby  committed an  offence      punishable U/S  13(2)  r/w  Section      13(1)(d)  of   the  Prevention   of      Corruption Act, 1988 and within the      cognizance of this Court. The charges  framed against  S.K. Jain, in that case read as under:      " Firstly,  that  you,  S.K.  Jain,      during the  period from  Feb. 90 to      Jan. 91 at Delhi, agreed with other      co-accused V.C. Shukla, N. K. Jain,      B. R.  Jain and J. K. Jain to do an      illegal  act,   to  wit,   to  make      payment of  Rs. 38,85,834/- to said      Sh.   V.    C.   Shukla,    as    a      gratification  other   than   legal      remuneration as  a motive or reward      for  getting  general  favour  from      said V.  C. Shukla  who was holding      the post of  a member of parliament      during the said period and also was      Minister   for   External   Affairs      during the  period from 21.11.90 to

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    Jan. 91  and in  pursuance  of  the      said   agreement,   the   pecuniary      advantage was  obtained by  said V.      C. Shukla  by abusing  his official      position  and  without  any  public      interest and  the payment  was made      by you as, aforesaid, gratification      an  you,   thereby,  committed   an      offence punishable  U/s  120-b  IPC      r/w Sec.  7, 12, 13(2) r/w 13(1)(d)      of  the  prevention  of  Corruption      Act, 1988 and within the cognizance      of this Court.      Secondly,  that   you,  S.K.   Jain      during the  aforesaid period and at      the  aforesaid  place  abetted  the      commission  of  offence  punishable      U/S 7  of the  P. C.  Act, 1988  by      offering bribe  of Rs.  38,85834 to      said V. C. Shukla, who was a public      servant during  the relevant period      as a  member of parliament and also      as a  minister of  External Affairs      during the  period from 21.11.90 to      Jan. 91  for getting general favour      from him and you, thereby committed      an offence punishable u/s 12 of the      Prevention of  Corruption Act, 1988      and within  the cognizance  of this      Court." Similar charges were also framed against the other Jains.      In the  other case (c.c. No. 17 of 1996), in which Shri Advani figure  as an accused with Jains no formal charge was framed (as  by then  the  respondents  had  moved  the  High Court), but  the special  Judge  decided  to  frame  charges against them  in similar  lines as would be evident from the order dated September 6, 1996, the relevant portion of which reads as under:      "  So,   after  going  through  the      entire   material    available   on      record,      i.e.      charge-sheet      statements   of    the    witnesses      recorded U/s 161 Cr.P.C., documents      placed on  record prima  facie,  it      cannot be said that the allegations      made against  all these accused are      groundless  or  that  there  is  no      sufficient  ground  for  proceeding      against  all   the  accused.  Prima      facie, it  is clear  that there are      sufficient grounds  for framing  of      charges against  all these accused.      Accordingly, I  hereby  order  that      the  charges   against  all   these      accused.  Accordingly,   I   hereby      order that the charges for offences      U/S 120b  IPC and  Sections 7,  12,      13(2) r/w  13(1) (d)   of the P. C.      Act, 1988 be framed against all the      accused namely, L. K. Adavani, S.K.      Jain, J.K.  Jain, B.R  .  Jain  and      N.K. Jain.           Further  Charges  for  offence      U.s. 7 and 13(2) read with 13(1)(d)      of P.C. Act, 1988 be framed against

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    accused L. K. Advani.           Further  charges  for  offence      U/s 12  of P.C. Act, 1988 be framed      against  accused  S.K.  Jain,  J.K.      Jain, B.R. Jain and N. K. Jain." Assailing the  above order/charges the respondents moved the High court  through petitions filed under Section 482 CR. P. C., which were allowed by a common order and the proceedings of the above two cases were quashed and the respondents were discharged. The  above order  of the  High  Court  is  under challenge in these appeals at the instance of the CBI.      From the  above resume of facts it is manifest that the entire edifice  of the  prosecution case  is  built  on  the diaries and  files -  and for  that matter  the entries made therein -  recovered from  J. K.  Jain. While  the appellant claimed  that   the  entries   in  the  documents  would  be admissible under  Sections 34,10 and 17 of the Evidence Act, (’Act’ for  short) the respondents contended that the nature and character of the documents inhibited their admissibility under all the above Sections. Needless to say, to delve into and decide this debatable point it will be necessary at this stage to  look into the documents; the two spiral note books (marked MR  68/91 and  MR 71/91),  two small spiral pads (MR 69/91 and  MR 70/91)  and two  files, each  containing  some loose sheets  of papers  (MR  72/91  and  MR  73/91).  Since according to  the prosecution  MR 71/91 is the main (mother) book we first take the same for scrutiny. Page 1 of the book begins with  the heading  "A/C given  upto 31st  January  on 31.1.1998;" and  then follows  serially numbered  entries of various figures  multiplied by  ‘some other  figures on  the left hand  column and the product thereof on the next column for each month commencing from January, 1990 to April, 1991. The overleaf  (’o’ for  short ) of the page contains similar entries for  the period  from April,  1988 to December, 1989 and it  ends with  the words  "2.77’ we have to receive". In the subsequent  pages the  book records  monthly receipts of monies/funds from  inconspicuous persons/entities during the period commencing  from the month of February, 1988 to April 1991 maintained  on ’2  columns’ basis. The left hand column represents  the   receipts  and   the  right   hand   column disbursements. In  the column  of  receipts  the  source  is indicated in  abbreviated form  on the  left of  the  figure representing the sum received. On the right side of the said figures a  number is  mentioned which  co-relates  with  the serial number  of the account of receivers recorded on pages 1 and  1(o) of  the  diary  for  the  period  subsequent  to 31.1.1988. So  far as  the names of the payees are concerned the same  have  also  been  recorded  in  abbreviated  form, alphabets or  words. The  entries, however,  do not give nay indication of  any sale,  purchase or  trading and show only receipts of  money from a set of persons and entities on one side and  payments to another set of persons and entities on the other,  both reckoned  and kept  monthly. As regards the actual amounts  received and  disbursed we  notice that  the figures  which  have  been  mentioned  briefly  against  the respective names are not suffixed with any symbol, volume or unit so  as to  specifically indicate  whether they  are  in lakhs, thousands  or any  other denomination.  It is noticed that in most of the entries the figures against transactions extend to  2 places after decimal which seem to suggest that the figures in money column may be in thousands, but then in some of  the months, namely, 11/88, 6/89, 10/90, 2/91, 3/91, 4/91, figures  extend to  5 places  after decimal  point  in money column.  This gives an impression that the figures are in lakhs;  and  this  impression  gains  ground  from  other

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transactions. For  example, at  page 9  of the  book in  the transactions relating to the month of September 80, a figure of 32,000 prefixed by (sterling pound symbol) indicates that it  is   32,000  sterling  pounds  and  the  same  has  been multiplied by  Rs. 40/-  per pound  which was  possibly  the conversion rate  of pound  according to  Indian currency  at that time)  and the  total has  been indicated  at 12.80  as against the  product of  Rs. 12,80,000/-.  That  necessarily means that  the 2  places after decimal denotes that figures are in  lakhs. The  book further  indicates that it was from time to  time shown  to some  persons  and  they  put  their signatures in token thereof.      The other  book  (M.R.  68/91)  contains,  inter  alia, entries relating  to cash and fund received and disbursed in the months  of February,  March and  April 1991  recorded in similar fashion  as in  M.R. 71/91  (some or  all  of  which correspond with  the entries  in MR 71/91 for those months); expenses incurred  in the  month of March 91; and ’political expenses as  on 26.4.91’  with names  of a number of persons mentioned thereunder  through their initials or surnames and various amounts shown against their respective names in only figures running  upto 2  points  after  decimal.  The  other entries in  this book  seem to  be wholly unconnected to the entries earlier referred to. The two small spiral pads (M.R. 69/71 and  M.R. 70/91) also contain some entries relating to similar receipt  and disbursement  on certain  days  and  in certain months  during the  above period  - all  written  in similar fashion.  So far  as the  two files  containing some loose sheets of paper are concerned ( M. R. 72/91 and 71/91) we notice  that in  some of  these papers  accounts of money received and  disbursed in  one particular month or a period covering a number of months are written.      While arguing their case for framing of charges against the respondents  it was contended on behalf of the appellant before the  trial Court  that having regard to the fact that the documents  unmistakably showed that accounts of business regarding receipt  and payment  of money  during the  period 1988 to  19991 were  regularly  maintained  those  documents would be  admissible under  Section 34  of the  Act. Relying upon the statements of some of the witnesses recorded during investigation and  report of the handwriting expert that the entries in  the documents  were in  the handwriting  of J.K. Jain, and  that   the three  Jain brothers  had signed those documents in  token of  their authenticity, it was contended that entries  therein would be admissible also under Section 10 of the Act to prove that pursuant to a conspiracy hatched up by the Jains to obtain favours from politicians and other public servants  payments were  made  to  them  from  moneys received through hawala transactions. Section 17 and 21 were also pressed  into service to contend that the entries would be ’admission of the Jains of such payments.      In refuting  the above  contentions it was submitted on behalf of  the respondents  that since  those documents were not books  of accounts  nor were  they maintained in regular course of  business they would not be relevant under Section 34. It  was next  submitted that  even it  was assumed  that those documents  were relevant  and admissible under Section 34 they  could be,  in view  of the  plain language  of that Section, used only as corroborative evidence, but in absence of any  independent evidence  to prove  the payments alleged therein the  documents were  of no avail to the prosecution. The admissibility  of the  documents under  Section  10  was resisted by the respondents contending that there was not an iota of material to show even, prima facie, that there was a conspiracy.   Similar    was   the    contention   regarding

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applicability of  sections 17  and  21  in  absence  of  any material to  prove ’admission’ of Jains. In support of their respective contentions  they relied  upon some  decisions of this Court as also of different High Courts.      From the  order of  the trial Court we find that though it noted  all the  contentions of  the parties and quoted in extensor from  the judgments  relied on  by them it left the question regarding  admissibility  of  the  documents  under Section 34 unanswered with the following observation:-      "All the  above cited case laws U/s      34 and  other  sections  of  Indian      Evidence Act  pertain to  the stage      where   in   those   cases   entire      evidence has  been recorded and the      trial was  concluded. There  is not      even a  single judgment  which  has      been  referred   to   above   which      pertains to the stage of charge. In      the instant  case, the  case is  at      the stage  of charge. So these case      laws  are  not  applicable  to  the      facts  and   circumstances  of  the      present case, at this stage." Then, proceeding  on the assumption that those documents did not come  within the  purview of Section 34, the trial court posed the  question as  to their  evidentlary value  without first going  into the  question whether  the documents  were admissible in  evidence) and  held  that  being  ’documents’ under Section  3 of   the  Act they  could be  proved during trial under Sections 61 and 62 thereof. The trial Court then referred to  the various  entries in  the diaries  and after correlating them  came to  the conclusion that a prima facie case had been made out against the respondents. However, the appellant’s contention  that the entries made in the diaries were also admissible under Sections 17 and 21 as against the Jains did not find favour with the trial court as, according to it,  prima facie  there was no admission on behalf of the accused. As  regards the admissibility of the entries in the documents under  Section 10,  the trial Court did not record any specific finding.      In setting aside the order of the trial court, the High Court accepted  the contention  of the  respondents that the documents were  not admissible  in evidence under Section 34 with the following words:      "  An   account   presupposes   the      existence of  two persons such as a      seller and  a  purchaser,  creditor      and debtor. Admittedly, the alleged      diaries in the present case are not      records of  the entries arising out      of a  contract. They do not contain      the debts  and credits. They can at      the  most   be   described   as   a      memorandum kept by a person for his      own benefit  which will  enable him      to look  into the same whenever the      need arised  to do  for his  future      purpose.   Admittedly    the   said      diaries were  not being  maintained      on day-to day basis in he course of      business. There  is no  mention  of      the  dates  on  which  the  alleged      payment  were  made.  In  fact  the      entries there  in  are  on  monthly      basis.  Even   the  names   of  the

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    persons whom  the alleged  payments      were made  do not find a mention in      full.  they   have  been  shown  in      abreviated   form.   Only   certain      ’letters’ have been written against      their names  which are  within  the      knowledge of only the scribe of the      said diaries  as to what they stand      for and whom they refer to."      After having held that the documents were neither books of account  nor kept  in the  regular course of business the High Court  observed that even if they were admissible under Section 34,  they were not, in view of the plain language of the Section  , sufficient  enough to fasten the liability on the head  of a  person, against  whom they were sought to be used. As,  according to  the High,  the prosecution conceded that besides  the alleged  entries in  the diaries  and  the loose sheets  there was  no other  evidence it observed that the entires  would not  further the case of the prosecution. As regards  the admissibility of the documents under Section 10 the  High Court  held that the materials collected during investigation did  not raise  a reasonable ground to believe that a  conspiracy existed,  far less,  that the respondents were parties  thereto and,  therefore, those documents would not be admissible under Section 10 also. The High Court next took up  the question as to whether those documents could be admitted under  Section 17 and observed that the admissions, if any,  therein could  be used  against Jains  only and not against Shri  Adavani  and  Shri  Shukla.  The  High  Court, however observed  that  the  production  and  proof  of  the documents by  themselves would  not furnish  evidence of the truth of their contents and that during investigation C.B.I. did not  examine any  witness or  collect materials to prove the same. With the above findings and observations, the High Court arrived at the following conclusion:-           " In the present case there is      no evidence against the petitioners      except the  diaries, note books and      the loose  sheet with regard to the      alleged  payments   (vide  MR  Nos.      68/91, 72/91  and 73/91).  The said      evidence is  of such a nature which      cannot be  converted into  a  legal      evidence against  the  petitioners,      in view of my above discussion.           There is  no evidence  in  the      instant case  with  regard  to  the      monies which  are alleged  to  have      been, received  by  Jains  for  the      purpose of  disbursement. There  is      no  evidence  with  regard  to  the      disbursement of  the amount  . Then      there is no evidence with regard to      the  disbursement  of  the  amount.      Then  there  is  no  evidence  with      regard to  the fact  to prove prima      facie  that  the  petitioners  i.e.      Shri L.  K. Advani  and Shri  V. C.      Shukla accepted the alleged amounts      as a  motive or  reward for showing      favour or  disfavor to  any  person      and  that   the  said  favours  and      disfavors   were   shown   in   the      discharge of their duties as public      servants as  contemplated by 5.7 of

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    the Act  (Prevention of  Corruption      Act, 1988).  Thus  the  court  will      have to presume all the above facts      in the  absence of  any evidence in      connection   therewith   to   frame      charges against the petitioners.      To appreciate  the contentions  raised before us by the learned counsel for the parties it will be necessary at this stage to  refer to  the  material  provisions  of  the  Act. Section 3 declares that a fact a relevant to another when it is connected  with the  other in any of the ways referred to in the  provisions of  the Act  relating to the relevancy of facts; and those provisions are to be found in sections 6 to 55 appearing in Chapter II. Section 5, with which Chapter Ii opens, expressly  provides that evidence may be given in any suit or  proceeding of  the existence  or  non-existence  of every fact  in issue  and the facts declared relevant in the aforesaid section,  and of  no others. Section 34 of the Act reads as under:-      " Entries  in books of account when      relevant  -   Entries  in  book  of      account,  regularly   kept  in  the      course of  business,  are  relevant      whenever they  refer  to  a  matter      into which the court has to inquire      but such statements shall not alone      be sufficient  evidence  to  charge      any person with liability."      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, still, the statement made therein shall not along  be sufficient  evidence to charge any person with liability. It  is thus seen that while the first part of the section speaks  of the  relevancy of  the entry as evidence, the  second   park  speaks,   in  a  negative  way,  of  its evidentiary value for charging a person with a liability. It will, therefore,  be necessary  for us  to  first  ascertain whether the  entries in  the documents,  with which  we  are concerned, fulfil  the requirements  of the above section so as to  be admissible  in evidence  and if  this question  is answered in  the affirmative  then only  its probative value need be assessed.      ’Book’ ordinarily means a collection of sheets of paper or other  material, blank,  written, or printed, fastened or bound together  so as to form a material whole. Loose sheets or scraps  of paper  cannot be termed as ’book’ for they can be easily  detached and  replaced. In  dealing with the work ’book’ appearing in Section 34 in Mukundram vs. Dayaram [AIR 1914 Nagpur  44], a decision on which both sides have placed reliance, the Court observed:-      "  In   its   ordinary   sense   it      signifies a collection of sheets of      paper bound  together in  a  manner      which  cannot   be   disturbed   or      altered except  by  tearing  apart.      The binding  is of  a kind which is      not intended to the moveable in the      sense  of   being  undone  and  put      together  again.  A  collection  of

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    papers in  a portfolio, or clip, or      strung together on a piece of twine      which is  intended to  be untied at      will,  would   not,   in   ordinary      English,      be      called      a      book...............................      ................................I      think the  term  "book"  in  S.  34      aforesaid may properly’ be taken to      signify, ordinarily,  a  collection      of sheets  of paper  bound together      with  the   intention   that   such      binding shall  be permanent and the      papers  used  collectively  in  one      volume. It is easier however to say      what is not a book for the purposes      of S.  34, and I have no hesitation      in holding  that unbound  sheets of      paper in  whatever quantity, though      filled  up   with  one   continuous      account, are  not a book of account      within the purview of S. 34." We must  observe that  the aforesaid  approach is  in accord with good  reasoning and  we are  in full agreement with it. Applying the above tests it must be held that the two spiral note books  (MR 68/91 and 71/91) and the two spiral pads (MR 69/91 and  MR 70/91)  are  "books"  within  the  meaning  of Section 34,  but not the loose sheets of papers contained in the two files (MR 72/91 and MR 73/91).      The next question is whether the above books fulfil the other requirements  of Section  34 so as to be admissible in evidence. Mr.  Altaf Ahmed, the learned Additional Solicitor General, appearing  for the  appellant  submitted  that  the interpretation of the High Court that the expressions "books of account"  and "business"  appearing in  the above section refer and  relate to only such business as may exist between two persons  such as  a seller  and purchaser,  creditor and debtor, is anomalous for such a truncated view would disable law  from  dealing  with  illicit  business  and  situations connected therewith,  such as  the case  in  hand,  where  a conspiracy was  hatched up  to receive  money through hawala channels and other sources and to distribute it as bribes to politicians to  influence  favorable  decisions  from  them. According to  Mr. Altaf  Ahmed,  the  expression  "business" under Section  34 should receive the widest possible meaning and should  be under stood and construed to mean and include all such  efforts of  people, which  , by  varied methods of dealing with  each  other  are  designed  to  improve  their individual economic conditions and satisfy their desires. he submitted that  any book  in which monetary transactions are recorded and  reckoned would answer the description of ’book of account’  within the  meaning of  the aforesaid  section. Relying upon the dictionary meanings of the above two words, namely, ’business’  and ’account’  and  the  interpretations given to  those words by various Courts of law, he submitted that the  book (MR  71/91) and the connected documents would clearly prove  that they were books of account maintained in respect of the illegal business that the Jain were carrying. His last  contention on  this aspect  of the matter was that the transactions  contained in  MR 71/91  and the  connected documents were an inherently credible record of the business in  question   and  the  books  were  maintained  with  such regularity as was compatible with the nature of the business the Jain brothers were carrying and consequently those books would be admissible in evidence under Section 34.

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    Mr. Sibal,  the learned  counsel for the Jains, did not dispute that  the spiral  note books  and the small pads are ’books’ within  the meaning  of  Section  34.  He,  however, strongly  disputed  the  admissibility  of  those  books  in evidence under the aforesaid section on the ground that they were neither  books of  account nor they were regularly kept in the  course of  business. he  submitted that  at best  it could be  said that  those books  were memoranda  kept by  a person for  his own  benefit. According  to  Mr.  Sibal,  in business parlance  ’account’ means  a  formal  statement  of money  transactions   between   parties   arising   out   of contractual or  fiduciary relationship.  Since the  books in question did  not reflect  any such relationship and, on the contrary, only contained entries of monies received from one set of persons and payment thereof to another set of persons it could  not be  said, by  any stretch  of imagination that they were  books of  account,  argued  mr.  Sibal.  He  next contended that  even if  it was  assumed for argument’s sake that the  above books  were books  of account  relating to a business still they would not be admissible under Section 34 as they  were not  regularly kept.  It was urged by him that the words  ’regularly kept’  mean that  the entries  in  the books  were   contemporaneously  made   at  the   time   the transactions took  place but  a cursory  glance of the books would show that the entries were made therein long after the purported  transactions   took  place.  In  support  of  his contentions he  also relied  upon the dictionary meanings of the words ’account’ and ’regularly kept’.      The word  ’account’  has  been  defined  in  Words  and Phrases, permanent Edition, Volume IA at pages 336 to 338 to mean (i)  a claim  or demand  by one  person against another creating a debtor-creditor relation’ (ii) a formal statement in detail of transactions between two parties arising out of contracts or  some fiduciary  relation. At  page 343  of the same book  the word  has  also  been  defined  to  mean  the preparation of  record or  statement of  transactions or the like; a statement and explanation of one’s administration or conduct in money affairs; a statement of record of financial transactions, a  reckoning or  computation;  a  registry  of pecuniary transactions or a reckoning of money transactions’ a written  or printed statement of business dealing or debts and credits;  or a  certain class  of them.  It is thus seen that while  the former definitions give the word ’account’ a restrictive meaning  the  latter  give  it  a  comprehensive meaning.  Similarly   is  the   above  word   defined,  both expansively, in  Black’s Law  Dictionary (Sixth  Edition) to mean’s detailed  statement of  the  mutual  demands  in  the nature of  debit and  credit between  parties arising out of contracts  or   some  fiduciary  relation.  A  statement  in writing, of debits and credits, or of receipts and payments; a list of items of debits and credits, with their respective dates. A  statement of  pecuniary transactions;  a record or course of  business dealings  between  parties;  a  list  of statement  of   monetary  transactions,  such  as  payments, losses, sales,  debits, credits,  accounts payable, accounts receivable, etc.,  in most cases showing a balance or result of comparison between items of an opposite nature.’      Mr. Altaf Ahmed relied upon the wider definition of the word ’account’  as mentioned  above to  conned that MR 71/91 fulfills the  requirements of  ’account’  as  it  records  a statement of  monetary transactions  - such  as receipts and payments -  duly reckoned. Mr. Sibal on the other hand urged that business  accounts must  necessarily  mean  only  those accounts which  record  transactions  between  two  parties, arising out  of a  contract or  some fiduciary relations ( a

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meaning accepted  by the High Court). He  submitted, relying upon the  definition of  ’memorandum’ as appearing in ’words and Phrases’,  that MR 71/91 could at best be described as a memorandum of some transactions kept by a person for his own benefit to  look into  same if  and when  the occasion would arise.      From the  above definitions  of ’account’ it is evident that if  it has  to be  narrowly construed  to mean a formal statement of  transactions  between  two  parties  including debtor-creditor relation  and arising  out of  contract,  or some fiduciary relations undoubtedly the book MR 71/91 would not come  within the  purview of  Section 34. Conversely, if the word ’account’ is to be given wider meaning to include a record of financial transactions properly reckoned the above book would attract the definition of ’book of account’.      It cannot  be gainsaid that the words ’account’, ’books of account’,  ’business’ and  ’regularly kept’  appearing in Section 34   are  of general import. necessarily, therefore, such words must receive a general construction unless  there is something  in the  Act itself, such as the subject matter with which  the Act  is dealing, or the context in which the words are  used, to  show the  intention of  the legislature that they must be given a restrictive meaning.      Indubitably, the Act lays down the rules of evidence to be applied  and followed  in all  judicial proceedings in or before any  Court including  some Courts  - martial. Keep in view the  purpose for  which the  Act was  brought into  the statute book  and its  sweep, the words appearing in Section 34  have  got  to  be  given  their  ordinary,  natural  and grammatical meaning,  more so,  when neither the context nor any principle  of construction  requires  their  restrictive meaning. While  on this point we may refer to Section 209 of the Companies  Act, 1956  which  expressly  lays  down  what ’books of  account’ to be maintained thereunder must contain and, therefore, the general meaning of the above words under the Act may not be applicable there.      In Mukundram (supra) after dealing with the word ’book’ (to which  we have  earlier referred) the Court proceeded to consider what  is meant by a ’book of account’ under Section 34 and stated as under:      " To account is to reckon, and I an      unable to  conceive any  accounting      which  does   not  involve   either      addition or  subtraction or both of      these operations  of arithmetic.  A      book  which   contains   successive      entries of  items  may  be  a  good      memorandum book;  but  until  those      entries are  totalled or  balanced,      or both,  as the case may be, there      is no  reckoning and no account. In      the making  of totals  and striking      of balances  from time to time lies      the  chief  safeguard  under  which      books   of    account   have   been      distinguished  from  other  private      records as  capable  of  containing      substantive   evidence   on   which      reliance may be placed."           (emphasis supplied) We have  no hesitation  in adopting the reasoning adumbrated in the  above observations.  The underlined  portion of  the above passage supports the contention of Mr. Altaf Ahmed and rebuts that  of mr. Sibal that Mr 71/91 is only a memorandum for the  entries made  therein are totalled and balanced. We

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are, therefore,  of the  opinion that  MR71/91 is a ’book of account’ as it records monetary transactions duly reckoned.      Coming now to the word ’ business’ , we need not search for its  meaning in  Black’s Law  Dictionary, or  words  and Phrases for  this Court  has dealt with the word in a number of  cases.   In  Narain   Swadesh  Weaving   Mills  vs.  The Commissioner of  Excess profits  Tax [ 1955 (1) SCR 952],  a five judge bench of this Court held that the word ’business’ connotes some  real, substantial and systematic or organised course of  activity or  conduct with  a set purpose’ and the above interpretation  was quoted  with approval  in Mazagaon Dock Ltd.  vs. The  Commissioner of  Income Tax  and  Excess Profits Tax [1959 SCR 848]. Again in Barendra Prasad Ray vs. I.T.O. [1981  92) SCC 693] this court observed that the word ’business’ is  one of  wide import  ad it  means an activity carried on  continuously and  systematically by  a person by the application  of his  labour or  skill  with  a  view  to earning an  income. The  activities of the Jain brothers, as sought to  be projected  by the prosecution now on the basis of the  materials collected  during investigation  (detailed earlier) would, therefore, be ’business’ for they were being carried on  continuously in  an organised manner, with a set purpose (be  it illegal) to augment their own resources. mr. 71/91 is, therefore, a book of account kept in the course of business.      That  brings   us  to   the  question  whether  it  was ’regularly kept’  so as  to satisfy  the last requirement of Section 34  to be admissible in evidence as a relevant fact. Mr. Altaf  Ahamed submitted  that the above question has got to be  answered keeping  in view  the nature of business the Jain brothers  were carrying  on and  that when  MR 71/91 is Scanned in  that perspective  it  is  obvious  that  it  was regularly kept.  In refuting the above contentions Mr. Sibal relied upon   $  1550 of  American Jurisprudence,  proof  of Facts  (Volume  34,  Second  Series)  wherein  it  has  been observed that  not merely  regularity is required; the entry must have  been fairly  contemporaneous with the transaction entered. he  also referred  to $ 1526 of the same book which reads as under:      The entry  should have been made at      or near the time of the transaction      recorded -  not merely because this      is necessary  in order  to assure a      fairly accurate recollection of the      of  the  matter,  but  because  any      trustworthy habit of making regular      business  records  will  ordinarily      involve the  making of  the  record      contemporaneously. The  rule  fixes      no precise  time’  each  case  must      depend on its own circumstances."           (emphasis supplied) Mr. Sibal  submitted that from a cursory glance of MR 71/91. It would  be apparent  that the  entries  therein  were  not contemporaneously made; and, on the contrary, they were made monthly which necessarily meant that those entries were made long after  the dates  the purported transactions of receipt and disbursement took place.      What is  meant by the words ’regularly kept’ in Section 34 came  up for  consideration before different high Courts; and we may profitable refer to some of those decisions cited at the  Bar. In Ramchand Pitembhardar Vs. Emperor [19 Indian cases  534]   it  has  been  observed  that  the  books  are ’regularly kept  in the  corse of business’ if they are kept in pursuance  of some continuous and uniform practice in the

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current routine  of the business of the particular person to whom they  belong. In Kesheo Rao vs. Ganesh [AIR 1926 Nagpur 407] the court interpreted the above words as under:      "  The  regularity  of  which  S.34      speaks cannot  possibly  mean  that      there  is   not  mistake   in   the      accounts, as  that would  make  the      section a  dead letter; no accounts      could be  admitted in evidence till      they  had   been   proved   to   be      absolutely  correct,  which  is  in      itself an  impossible task and also      cannot be begun till they have been      admitted in  evidence. Regularly or      systematically   means   that   the      accounts are  kept according  to  a      set of  rules or  a system, whether      the  accountant  has  followed  the      rules or system closely or not. Nor      is there  any thing  in the section      that says  the system  must  be  an      elaborate  or  reliable  one.  Both      those  matters,   the   degree   of      excellence of  the system  and  the      closeness with  which it  has  been      followed, affect  the weight of the      evidence of  an  entry,  not  it  s      admissibility.     The     roughest      memoranda    of    accounts    kept      generally  according  to  the  most      elementary  system,   though  often      departing from  its, are admissible      in evidence,  but  would  of  corse      have no weight."      The  view   expressed  by  the  Kerala  High  Court  in Kunjamman Vs.  Govinda Kurukkal  [1960 kerala Law Times 184] in this  regard is  that the  words ’regularly  kept’ do not necessarily mean kept in a technically correct manner for no particular set  of rule  or system  of keeping  accounts  is prescribed under  Section 34  of the  Evidence Act  and even memoranda  of   account  kept   by  petty   shopkeepers  are admissible if they are authentic While dealing with the same question the  Punjab & Haryana High Court observe in Hiralal Mahabir Pershad  Vs. Mutsaddilal  Jugal Kishore [(1967) 1 I. L. R    P &: H 435] that the entries should not be a recital of past  transactions but an account of transactions as they occur, of  course, not necessarily to be made exactly at the time of  occurrence and  it is  sufficient if  they are made within a reasonable time when the memory could be considered recent.      In our  considered opinion  to ascertain whether a book of account  has been regularly kept the nature of occupation is an eminent factor fr weighment. The test of regularity of keeping accounts  by a shopkeeper who has dally transactions cannot be  the same as that of a broker in real estates. Not only their  systems of  maintaining books  of  account  will differ but  also the  yardstick of contemporaneity in making entries therein.  We are,  therefore, unable to subscribe to the view of Mr. Sibal that an entry must necessarily be made in the  book of  account at  or about  the time  the related transaction takes  place so  as to enable the book to a pass the test  of ’regularly  kept’. Indeed  the above Section ($ 1526) expressly lays down (emphasised earlier) that the rule fixed no precise time and each case must depend upon its own circumstances. Applying  the above  tests and the principles

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consistently  laid   down  by   the  different   High  Court s(referred to  above )  we  find  that  Mr  71/91  has  been regularly and  systematically maintained. Whether the system in  which  the  book  has  been  maintained  guarantees  its correctness  or   trustworthiness  is   a  question  of  its probative value  and not  of its admissibility as a relevant fact under  Section 34.  The other  three books,  namely  MR 68/91 and MR 70/91 would not however come within the purview of the above Section, for, even though some of the emonetary transactions entered  therein appear  to be related to those in MR  70/91, they  (the three  books ) cannot be said to be books of  account regularly  kept. We  need not, however, at this stage consider whether the entries in these three books will be relevant under any other provisions of Chapter II of the Act.      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  there probative value.  mr. Altaf Ahmed took great pains to decode and analyses  the entries in the above book and, correlating them with  the entries  in the other three books and in some of the  loose sheets  found in the files, submitted that the intrinsic evidence furnished by their internal corroboration and   inter-dependence   unmistakably   demonstrated   their authenticity and  trustworthiness. According  to  Mr.  Altaf Ahmed the entries reflect such periodicity and regularity as was compatible  with the  modus operandi  of the business of Jain brothers of corrupting public servant including Members of Parliament  and Ministers  in order  to  influence  their decisions and  seek their  favours for  promotion  of  their (Jain brothers’)  economic interests. Besides, he submitted, the external  independent corroboration  of those entries as required  under   Section  34  was  also  available  to  the prosecution from  the statements  made by Shri Jacob Mathai, Danial P.  Rambal  and  P.  Ghoshal  and  Ejaj  Ilmi  during investigation, in  that, they  have admitted receipts of the payments as  shown against  them in MR. 71/91. While on this point, he made a particular reference to those entries in MR 71/91 Which,  according to  him m  if corresponded  with the entries in  the other  books and  the enclose  sheets  would prove the payments to Shri Advani and Shri Shukla. As regard s the  proof of  authorship  of  the  entries  he  drew  our attention to the statements of Pawan Jain , A. V. Pathak and D.K. Guha  who have  stated that the entries were made by J. K. Jain  and that the Jain Brothers had put their signatures against some  of these  entries  in  token  of  verification thereof. He  also drew  our attention to the written opinion given by the hand writing expert in this regard.      In response  Mr. Sibal submitted that the evidence that has been  collected during investigation only shows that the entries were  made by  J. K. Jain and that the Jain brothers had put certain signatures against  some of those entries it there is  o evidence  whatsoever to  prove that  movies were actually paid  by the  Jains and  received by  the payees as shown in  the entries,  without proof of which no case, even prima facie,  could be said to have ben made out against any of therm. According to Mr. Sibal and Mr. Jethmalani, learned Counsel for  Shri Advani  by more  proof of  a document  the truth of  the contents  thereof is to proved and independent evidence for  that purpose  is required.  In absence  of any such evidence,  they contended,  no liability can be foisted under Section 34.      The rationale behind admissibility of parties’ books of account as  evidence is  that the  regularity of  habit, the difficulty  of  falsification  and  the  fair  certainty  of

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ultimate detection  give  them  in  a  sufficient  degree  a probability of trustworthiness (wigmore on evidence $ 1546). Since, however, an element of self interest and partisanship of the  entrant to  make a  person -  behind whose  back and without whose knowledge the entry is made - liable cannot be ruled out  the additional safeguard of insistence upon other independent evidence  to fasten him with such liability, aha been provided  for in  Section 34 by incorporating the words such statements  shall not alone be sufficient to charge any person with liability.      The probative  value of  the liability  created  by  an entry in  books of  account came  up  for  consideration  in Chandradhar vs.  Gauhati Bank  [1967 (1) S. C. R. 898]. That case arose  out of  a suit  filed by  Gauhati  Bank  against Chandradhar (the  appellant therein ) for recovery of a loan of Rs.  40,000/- . IN defence he contended, inter alia, that no loan  was taken.  To substantiate  their claim  the  Bank solely relied upon certified copy of the accounts maintained by them  under Section  4 of the Bankers’ Book Evidence Act, 1891 and  contended that certified copies became prima facie evidence of  the existence  of the  original entries  in the accounts and  were admissible  to prove  the payment of loan given. The  suit was  decreed by  the trial  Court  and  the appeal preferred against it was dismissed by the High Court. In setting  aside the decree this Court observed that in the face of  the positive  case made  out by Chandradhar that he did not  ever borrow  any sum from the Bank, the Bank had to prove that  fact of  such payment and could not rely on mere entries in the books of account even if they were regularily kept in  the corse of business in view of the clear language of Section  34 of  the Act. This Court further observed that where the  entries were  not admitted it was the duty of the Bank, if it relied on such entries to charge any person with liability, to produce evidence in support of the  entries to show that  the money  was advanced  as indicated therein and thereafter the  entries would  be of  use  as  corroborative evidence.      The same  question came  up  for  consideration  before different High  Court on a number of occasions but to eschew prolixity we  would confine  our attention  to some  of  the judgements on  which Mr.  Sibal relied.  In Yesuvadiyan  Vs. Subba Naicker  [A. I. R. 1919 Madras 132] one of the learned judges constituting the Bench had this to say:      S.34, Evidence  Act, lays down that      the entries  in books  of  account,      regularly kept  in  the  course  of      business are  relevant, but  such a      statement  will   not  alone  e  be      sufficient  to  charge  any  person      with liability.  That merely  means      that the  plaintiff cannot obtain a      decree  by   merely   proving   the      existence of certain entries in his      books of  account even though those      books are  shown to  be kept in the      regular course of business. he will      have  to   show  further   by  some      independent   evidence   that   the      entires represent  real and  honest      transactions and  that  the  moneys      were paid  in accordance with those      entries.  The  legislature  however      does  not  require  any  particular      form  or   kind  of   evidence   in      addition to  entries  in  books  of

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    account, and   I  take it  that any      relevant  fact   s  which   can  be      treated  as   evidence  within  the      meaning of  the Evidence  Act would      be sufficient  corroboration of the      evidence furnished  by  entries  in      books of account if true." While concurring  with  the  above  observations  the  other learned Judge stated as under:      " If  no other evidence besides the      accounts   were    given,   however      strongly  those   accounts  may  be      supported by the probabilities, and      however strong  may be the evidence      as to the honesty of those who kept      them, such  consideration could not      alone  with   reference  to   s.34,      Evidence Act,  be the  basis  of  a      decree."           (emphasis supplied)      In Beni  Vs. Bisan  Dayal [ A. I. R 1925 Nagpur 445] it was observed  tat entries  in book  s of  account are not by themselves sufficient  to charge  any person with liability, the reason  being that  a man  cannot  be  allowed  to  make evidence for  himself by what he chooses to write in his own books  behind  the  back  of  the  parties.  There  must  be independent evidence of the transaction to which the entries relate an  din absence  of such  evidence no  relief can  be given to  the party  who relies upon such entries to support his claim against another. In Hira Lal Vs. Ram Rakha [ A. I. R. 1953  Pepsu 113]  the  High  Court,  while  negativing  a contention that  it having  been proved  that the  books  of account were  regularly  kept  in  the  ordinary  course  of business and  that, therefore, all entries therein should be considered to be relevant and to have  been prove, said that the rule  as laid down in Section 34 of the Act that entries in the  books of  account regularly  kept in  the course  of business re  relevant whenever  they refer  to a  matter  in which the  court has  to enquire  was subject to the salient proviso that  such entries  shall not  alone  be  sufficient evidence to  charge any  person with  liability. It  is not, therefore, enough  merely to  prove that the books have been regularly kept  in the  course of  business and  the entries therein are correct. It is further incumbent upon the person relying upon  those  entries  to  prove  that  the  were  in accordance with facts.      The evidentiary value of entries relevant under Section 34 was  also considered  in Hiralal Mahabir Pershad (supra ) I.D. Dua,  ]. (as  he then  was )  speaking  for  the  Court observed  that   such  entries  though  relevant  were  only corroborative evidence and it is to be shown further by some independent evidence  that the  entries represent honest and real transactions  and that  monies were  paid in accordance with those entries.      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

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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, deleve into  or decide  upon the  contention raised  by  Mr. Altaf Ahmed  in this  regard. Suffice  it to  say  that  the statements of  the for 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.      Following conclusion of our discussion on Section 34 of the Act  we may  now turn  to the  principle  and  scope  of Section 10  of the  Act and its applicability to the entries in question. This section reads as under:-      "   Things    said   or   done   by      conspirator in  reference to common      design. - where there is reasonable      ground to  believe that two or more      persons have  conspired together to      commit an  offence or an actionable      wrong,  any  thing  said,  done  or      written by  any one of such persons      in  reference   to   their   common      intention, after the time when such      intention was firs t entertained by      any one of them, is a relevant fact      as  against  each  of  the  persons      believed to  be so  conspiring,  as      well for the purpose of proving the      existence of  the conspiracy as for      the purpose  of  showing  that  any      such person was a party to it." In dealing  with this  Section in  Sardul Singh vs. State of Bombay [   AIR  1957 S. C. 747], this court observed that it is  recognised   on  well  established  authority  that  the principle under  lining the  reception of  evidence  of  the statements, acts  and  writings  of  one  co-conspirator  as against the  other is on the theory of agency. Ordinarily, a person cannot  be made  responsible for  the acts  of  other unless they  have been  instigated by  him or  done with his knowledge or  consent. This section provides an exception to that rule, by laying down that an overt act committed by any one of  the conspirators  is  sufficient,  (on  the  general principles of  agency) to  make it the act of all. But then, the opening  of words  of the  Section makes  in  abundantly clear that  such concept  of agency  can be availed of, only after the Court is satisfied that there is reasonable ground to believe  that they have conspired to commit an offence or an actionable  wrong. In  other  words,  only  when  such  a reasonable ground exists, any thing said, done or written by any one  of then  in reference  to  their  common  intention thereafter is  relevant against the others, not only for the propose of  proving the existence of the conspiracy but also for proving  the existence  of the  conspiracy but  also for proving that  the other person was a party to it. In Bhagwan Swarup vs.  State of Maharashtra [ A. I. R 1965 S. C. 682 ], this court analysed the section as follows:-      " (1)  There shall be a prima facie

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    evidence  affording   a  reasonable      ground for  a Court to believe that      two or  more persons are members of      a  conspiracy;   (2)  if  the  said      condition is  fulfilled, any  thing      said, done or written by any one of      them in  reference to  their common      intention will  be evidence against      the other; (3) any thing said, done      or written  by him should have been      said, done  or written by him after      the intention was formed by any one      of  them;  (4)  it  would  also  be      relevant  for   the  said   purpose      against  another  who  entered  the      conspiracy whether  it was  said  ,      done or  written before the entered      the conspiracy  or after  the  left      it’ and  (5) it  can only  be  used      against a co-conspirator and not in      his favour."      In the  light  of  the  above  principles  we  may  now consider the  arguments canvassed by Mr. Altaf Ahmed to made the entries  in the  books and the enclose sheets admissible under the  above section  as relevant evidence. He submitted that the materials collected during investigation and placed on record  clearly establish  the  existence  of  a  general conspiracy amongst  jains to promote their economic interest by corrupting  public servant.  He next  contended that  the materials further  disclosed that in order to accomplish the design of  the general  conspiracy,  a  number  of  separate conspiracles  with  similar  purpose  had  been  hatched  up between jains and different public servants.      At the  outset we  may point  out that  no  charge  was framed against the Jains from 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.      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 Prasad (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  indicate that  Shri Shukla  was known to the jain Brothers  and had  gone to  their residence  on  formal occasions. The  above statements cannot be made a reasonable ground to  believe that all of them have conspired together. So far  as Shri Advani is concerned, we find that no one has even spoke  about him  in their  statements. Since the first requirement of  Section 10  is not  fulfilled the entired in the documents  cannot be  pressed  into  service  under  its latter part .      Lastly, comes  the questions  whether the  entries  are ’admissions’ within  the meaning of Section 17 of the Act so

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as to  be admissible  as relevant evidence under Section 21; and if  so, as  against whom  can the  entries be  prove. IN Section 17  admission has  been defended  to be a statement, oral or  documentary, which suggests any inference as to any fact in  issue or  relevant fact and which is made by any of the persons,  and under  the circumstances, mentioned in the subsequent Sections  (Section 18  to 21). Section 18, so far as it  is relevant  for our  present purposes, provides that statements made by apart to the proceeding or by an agent to any  such   party,  whom   the  Court   regards  under   the circumstances  of  the  case,  has  expressly  or  impliedly authorised by  him to  make them  are admissions. Section 21 reads as under:      Proof of admissions against persons      making them  and  by  or  on  their      behalf -  admissions  are  relevant      and may  be proved  as against  the      person  who   makes  them,  or  his      representative in interest; but hey      cannot be proved by or on behalf of      the person who makes them or by his      representative in  interest  except      in the following cases:-      (1) An  admission may  be proved by           or on  behalf  of  the  person           making it,  when it is of such           a nature,  that if  the person           making it  were dead, it would           be relevant  as between  third           persons under Section 32.      (2) An  admission may  be proved by           or on  behalf  of  the  person           making it, when it consists of           a statement  of the  existence           of any  state of mind or body,           relevant or  in issue, made at           or about  the time  when  such           state of mind or body existed,           and is  accompanied by conduct           rendering    its     falsehood           improbable.      (3) An  admission may  be proved by           or on  behalf  of  the  person           making it,  if it  is relevant           otherwise    than     as    an           admission." From a combined reading of the above Sections it is manifest that an oral or documentary statement made by a party or his authorised agent, suggesting any inference as to any fact in issue or  relevant fact  may be proved against a party t the proceeding or his authorised agent as ’admission’ but, apart form exceptional  cases (as contained in Section 21), such a statement cannot  be proved  by or on their behalf. While on this  point   the  distinction   between   ’admission’   and concession’ needs  to be  appreciated.  In  absence  of  any definition of  ’confession’ in  the Act judicial opinion, as to its  exact meaning,  was not unanimous until the judicial Committee made an authoritative pronouncement about the same in Pakala  Narayana vs  Emperor [AIR  1939 privy Council 47] with these words:-      " ....  a  confession  must  either      admit in  terms the  offence, or at      any  rate   substantially  all  the      facts   which    constitutes    the      offence. An  admission of a gravely

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    incriminating    fact,    even    a      conclusively incriminating fact, is      not of  itself a confession, eg. An      admission that  the accused  is the      owner   of   an   was   in   recent      possession of the knife or revolver      which      caused      a      death      .......................      ..............................      have a  general term for use in the      three      following      articles,      confession secured  by  inducement,      made  upon   oath,  made   under  a      promise of  secrecy. The definition      is not  contained in  the  Evidence      Act, 1872, and in that Act it would      not be  consistent with the natural      use   of   language   to   construe      confession as  a  statement  by  an      accused ’suggesting  the  inference      that he committed the crime". The  above   statement  of   law  has   been  approved   and consistently followed  by this  Court. [Palvinder  Kaur  vs. State of  Punjab (1953)  S.C.R. 94,  Om Parkash vs. State of U.P. A.I.R.  1960 SC  409 and  Veera Ibrahim  vs.  State  of Maharashtra (1976) 3 S.C.R. 692].      It  is   thus  seen  that  only  voluntary  and  direct acknowledgement  of   guilt  is  a  confession  but  when  a confession falls  short of  actual admission  guilt  it  may nevertheless be used as evidence against the person who made it or  his authorised  agent as an ’admission’ under section 21. The  law in  this regard  has been  clearly - and in our considered view  correctly -  explained in  Monir’s  law  of Evidence (New  Edition at  pages 205  and 206), on which mr. Jethmalani relied  to bring home his contention that even if the entries  are treated  as ’admission’ of jains still they cannot be  used against  Shri Advani.  The relevant  passage reads as under:-      "    The     distinction    between      admissions and  confessions  is  of      considerable  importance   for  two      reasons. Firstly,  a statement made      by an  accused person,  if it is an      admission,   is    admissible    in      evidence under  Section 21  of  the      evidence Act,  unless the Statement      amounts to  a  confession  and  was      made to  a person  in authority  in      consequence   of    some   improper      inducement, threat  or promise,  or      was made at a time when the accused      was in custody of a police officer.      If a  statement  was  made  by  the      accused in  the  circumstance  just      mentioned it  s admissibility  will      depend upon  the  determination  of      the question  whether it  does  not      does not amount to a confession. If      it amounts to a confession, it will      be inadmissible, but if it does not      amount  to   a  confession.  If  it      amounts  to  a  confession.  If  it      amounts to a confession, it will be      inadmissible, but  if it  does  not      amount to  a confession, it will be

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    admissible under  Section 21 of the      Act as  an admission, provided that      it suggests  an inference  as to  a      fact  which  is  in  issue  in,  or      relevant to,  the case  and was not      made to  a police  officer  in  the      course of  an  investigation  under      Chapter XIV of the Code of criminal      procedure.  Secondly,  a  statement      made  by   an  accused   person  is      admissible against  others who  are      being jointly  tried with  him only      if  the   statement  amounts  to  a      confession.  Where   the  statement      falls short  of a confession, it is      admissible only  against its  maker      as an  admission  and  not  against      those who  are being  jointly tried      with him. Therefore, from the point      of  view   of  Section  30  of  the      Evidence Act  also the  distinction      between   and   admission   and   a      confession   is    of   fundamental      importance."           (emphasis supplied)      In the  light of the preceding discussion we proceed to consider the  validity of  the arguments  canvassed by  Shri Altaf Ahmed  in this  regard. mr.  Altaf Ahmed urged that it being a  settled principle of law that statements in account books of  a person  are ’admissions’ and can be used against him even  though those statements were never communicated to any  other  person,  the  entries  would  be  admissible  as admission of  J. K.  Jain, who  made  them  that  apart,  he contended, they  would be  admissible against  jain brothers also as  they were  made under  their authority  as would be evident from their endorsements/signatures appearing against below some  of  those  entries.  In  support  of  his  first contention he  relied upon  the following  passage from  the judgment of  his Court in Bhogilal Chunilal pandya vs. State of Bombay [(1959) Supp. (1) SCR 310]:      " The  first group  of sections  in      the Act in which the word ’      statement ’  occurs, are  ss. 17 to      21,  which  deal  with  admissions.      Section   17   defines   the   word      ’admission’, ss.  18 to 21 lay down      what statements are admissions, and      s.  21  deals  with  the  proof  of      admissions against  persons  making      them. The  word s used in ss. 18 to      21   in    this   connection    are      ’statements made  by.’. It  is  not      disputed that  statements  made  by      persons may  be used  as admissions      against them  even though  they may      not have  been communicated  to any      other    person.    For    example.      Statements in  the account books of      a  person   showing  that   he  was      indebted  to   another  person  are      admissions  which   can   be   used      against  him   even  though   these      statements were  never communicated      to any  other person.  illustration      (b) of  s. 231  also shows that the

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    word  ’statement’   used  in  these      sections does not necessarily imply      that   they    must    have    been      communicated to  any other  person.      In  the  Illustration  in  question      entries made  in the book kept by a      ship’s  captain   in  the  ordinary      corse  of   business   are   called      statements,  though  these  entries      are not  communicated to  any other      person. An  examination, therefore,      of these sections show that in this      part   of    the   Act   the   word      ’statement’ has  been used  in  its      primary meaning  namely, ’something      that is  stated’  communication  is      not necessary  in order that it may      be a statement.".      Even if  we are  to accept the above contentions of Mr. Altaf Ahmed  the entries,  [which re  statements’ as held by this Court in Bhogilal chunilal (supra) and hereinafter will be so  referred to  ],  being  ’admissions’  -  and  not  t’ confession’- cannot  be used  as against Shri Advani or Shri Shukla. however,  as against  jains the  statements  may  be proved as  admissions under  Section 18 read with Section 21 of the Act provided they relate to ’ any fact  in issue  or relevant fact.’ Needless to say, what will be  ’facts in  issue’ or ’relevant facts’ in a criminal trial will  depend upon,  and will  be  delineated  by,  the nature of  accusations made  or charges levelled against the person indicated.  In the  two  case  with  which  were  are concerned in  these appeals,  the gravamen  of  the  charges which were  framed against  Jains in  one  of  them  (quoted earlier) and  were to be framed in the other pursuant to the order of  the trial  Court (quoted  earlier)  is  that  they entered into  two separate  agreements; one with Shri Shukla and the  other with Shri Advani, in terms of which they were to make  certain payments  to them  as a gratification other than legal  remuneration as  a motive  or reward for getting their favour  while  they  were  ’public  servants’  and  in pursuance of the said agreements payments were actually made to  them   thereby  the   Jains  committed  the  offence  of conspiracy under Section 120 b of the Indian Penal code; and under Section  12 of  the prevention of Corruption Act, 1988 (P.C. Act  for short),  in that, they abetted the commission of offences  under Section  7 of  the Act by Shri Shukla and Shri Advani.      It is  thus seen  that the  prosecution sought to prove that there  were tow separate conspiracies, in both of which Jains together  figured as  the common party and Shri Advani or Shri  Shukla, as  the other . Since we have already found that the  prosecution has  not been able to made out a prima facie case  to prove  that Shri  Advani and Shri shukla were parties to  such conspiracies, the charges of conspiracy, as framed/sought to  be framed,  cannot stand  also against the Jains, for the simple reason that in a conspiracy there must be two  parties. Resultantly  ,  the  statements  cannot  be proved as  admission of  Jains of such conspiracy. We hasten to add  hat the case the prosecution intended to project now was not  that there  was a  conspiracy amongst  the Jains to offer illegal  gratification to  Shri Advani and shri Shukla and that  pursuant thereto  the latter accepted the Same. We need not, therefore, dilate of the question whether, if such was the  case of  the prosecution,  the statements  could be proved against the Jains as their admission.

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    Thus said  we may  now turn our attention to Section 12 of the P. C. Act. That Section reads as under:-      "  Punishment   for   abetment   of      offences defined  in section  7  or      11...  Whoever  abets  any  offence      punishable  under   Section  7   or      section  11  whether  or  not  that      offence is committed in consequence      of   that    abetment,   shall   be      punishable with  imprisonment for a      term which  shall be  not less than      six months  but which may extend to      five years and shall also be liable      to fine."      Undoubtedly for  a person to be guilty thereunder it is not necessary  that the  offences mentioned  therein  should have  been   committed  prusuan   to  the   abetment.  Since ’abetment’ has  not been  defined under  the P.C. Act we may profitable y  refer to its exhaustible definition in Section 107 of  the Indian  Penal Code. As per that Section a person abets the  doing of  a thing  when he  does any  of the acts mentioned in the following three clauses;      (i) instigates  any  person  to  do           that thing, or      (ii) engages with one or more other           person  or   persons  in   any           conspiracy for  the  doing  of           that thing ........, or      (iii) intentionally  aids,  by  any           act or  illegal omission,  the           doing of that things. So far  as the  first two  clauses are  concerned it  is not necessary that  the  offence  instigated  should  have  been committed. For  under standing  the scope of the word " aid" in  the  third  clause  it  would  be  advantageous  to  see Explanation 2 in Section 107 I.P.C. which reads thus:      " whoever, either prior to or t the      time of  the commission  of an act,      does  any   thing   in   order   to      facilitate the  commission of  that      act, and  thereby  facilitates  the      commission thereof,  is said to aid      the doing of that act." It is  thus clear  that under the third clause when a person abets by aiding, the act so aided should have been committed in order  to make  such aiding  an offence.  In other words, unlike the  first tow  clauses the third clause applies to a case where the offence is committed.      Since in  the instant  case the prosecution intended to prove the  abetment of a Jains by aiding (and not by any act falling under  the first two clauses adverted to above ) and since we  have earlier  found that  no prima  facie case has been made  out against  Shri Advani and Shri Shukla of their having committed  the offence  under Section  7 of  the P.C. Act, the  question of  Jains’ committing  the offence  under Section 12 and , for that matter, their admission in respect thereof -  does not arise. Incidentally, we may mention that the abetment by conspiracy would not also arise here in view of our earlier discussion.      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 there under.

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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 changes  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 .