State Through Cbi vs Devi Lal And Ors.
2006 Latest Caselaw 2230 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. This revision petition is filed on behalf of the Central Bureau of Investigation being aggrieved by the order dated 30.05.1998 passed by the learned Special Judge whereby the respondents 1-5 were discharged of the offences under Section 120B IPC, Section 7, 11, 12 & 13(2) read with Section 13(i)(d) of the Prevention of Corruption Act, 1988 as also under Section 465 IPC.

2. After filing of the revision petition, the respondent No. 1 passed away and as such, the present petition does not survive any further as against the respondent No. 1.

3. The entire case relates to the entries in the diaries and files seized from the residence of accused/ respondent No. 4 (J. K. Jain) on 03.05.1991. Insofar as the respondents 2 and 5 are concerned, the following entries are being pressed into service by the prosecution.

 S.  File Diary No. MR No.      Page No.                       Name    Amount 
No.                            and the period                        in lacs
                               of accounting 
1   File No. 1     72/91   8 (POE from April 88 to March 90)   D. Lal   50.00
2   --do--         72/91   31 (Detail of POE (SKJ)             D. L     50.00
3  Diary No. 2     68/91   7 (1.2.91 - 10.2.91)                Pradeep  14.35
4  Diary No. 1     71/91   11 (Feb. (91))                      --do--   14.63700
5  File No. 2      73/91   16 (Account from 1.4.90 - 31.3.91)  --do--   14.63700
6   --do--         73/91   43 (A/c for the month of Feb.)      --do--   14.63700
7   --do--         73/91   44 (A/c from 1.2.91 to 19.2.91)     --do--   14.35

 

4. An examination of the seven items mentioned above clearly indicates that the first two items purport to relate to the deceased/ respondent No. 1. They also relate to entries contained in MR 72/91. With regard to MR 72/91, the Supreme Court, in the case of CBI v. V.C. Shukla and Ors. , held the same not to be a "book" for the purposes of Section 34 of Indian Evidence Act, 1872. The clear and categorical observation of the Supreme Court is at paragraph 18 of the said judgment, which reads as under:

18. "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 word "book" appearing in Section 34 in Mukundram v. Dayaram1 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 be moveable in the sense of being undone and put together again. A collection of 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 Section 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 Section 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 Section 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 notebooks (MR 68/91 and MR 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 ( MRs 72/91 and 73/91).

5. By virtue of paragraph 18 of the said Supreme Court judgment, the file bearing MR 73/91 is also precluded from being considered as a book of account. This leaves us with entries at serial No. 3 and 4 in the above table. Insofar as the entry at serial No. 3 is concerned, it pertains to diary No. 2 or what is marked as MR 68/91. By virtue of paragraph 31 of the Supreme Court decision referred to above, this document is also not a "book of account" falling within the purview of Section 34 of the Indian Evidence Act, 1872. This is so because the Supreme Court held the same not to be a book of account "regularly kept". The observations of the Supreme Court in para 31 of the said judgment are as under:

31. In our considered opinion to ascertain whether a book of account has been regularly kept the nature of occupation is an eminent factor for weighment. The test of regularity of keeping accounts by a shopkeeper who has daily 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 entires 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 pass the test of "regularly kept". Indeed the above section 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 consistently laid down by the different High Courts (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 MR68/91, MR 69/91 and MR 70/91 would not however come within the purview of the above section, for, even though some of the monetary transactions entered therein appear to be related to those in MR 71/91, they (the three books) cannot be said to be books of account regularly kept. We need not, however, at this stage consider whether the entires in these three books will be relevant under any other provisions of Chapter II of the Act.

6. As such, we are now left with only serial No. 4, which relates to diary No. 1, which has been marked as MR 71/91. With regard to this document, the Supreme Court in the said judgment in the case of CBI v. V.C. Shukla (supra), observed in paragraph 39 as under:

39. 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 former's 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 as 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.

It is clear from a reading of the said extract that although MR 71/91 is regarded as a book of account regularly kept, it still needs to be corroborated by independent evidence with regard to its trustworthiness before a liability can be fixed upon a person.

7. It is in this context that in the impugned order the entire matter with regard to MR 71/91 is discussed in paragraph 41 at page 75. The discussion reads as under:

41. So now we are left only with the entries made in diary MR 71/91. As per entry made at page 11 of MR 71/91 during the month of February, a sum of Rs. 14.63700 is reported to have been shown to have been paid to Pradeep. No date of payment has been mentioned in this diary though as per averment made in the charge-sheet, payment has been made to accused Pradeep Singh during the month of 1.2.91 to 10.2.91. Further as per diary MR 68/91 on page 7, it has been stated that a sum of Rs. 14.35 lakhs have been paid to Pradeep during the period 1.2.91 to 10.2.91. However, the amounts mentioned in both these diaries, i.e, MR 68/91 and MR 71/91 is different and it does not reconcile. It is not clear from the prosecution case as to whether accused Pradeep Singh has been made payment of Rs. 14.63700 lakh only as mentioned in diary MR 71/91 or in addition to this payment, he has also been paid Rs. 14.35 lakh as mentioned in diary MR 68/91. So the entries made in these two diaries does not co-relate and further identity of accused Pradeep Singh Sihag, who is an accused in this case is not established at all because in both these diaries name 'Pradeep' alone has been mentioned in the diaries MR 68/91 and MR 71/91 . So it cannot be said that the name 'Pradeep' mentioned in these two diaries is the same person i.e. accused of the present case namely Pradeep Singh Sihag. Further as per entries made in diary MR 71/91 it shows that the payment has been made to Pradeep during the month of February, 1991 whereas diary MR 68/91 restricts the payment made to Pradeep during the period 1.2.91 to 10.2.91 only. So prima-facie there is no material on record to link the present accused i.e. Pradeep Singh Sihag with the entry made in diary MR 71/91. Further there is no other corroborative evidence besides this entry to connect the accused Pradeep Singh Sihag in respect of any payment nor there is any material on record to show that any payment was made to accused Pradeep Singh Sihag. Further there is no material on record to show that accused Pradeep Singh Sihag had any association or acquaintance with accused S. K. Jain or J. K. Jain. Further there is no material on record to show as to what favor accused Pradeep Singh Sihag could have done to accused Jains and what was the occasion for accused Jains to have made this huge payment of more than Rs. 14 lakhs, to accused Pradeep Singh. So prima-facie to my mind there is nothing on record to connect accused Pradeep Singh Sihag with the alleged payment made in diary MR 71/91 and there is no other corroborative evidence in support of this entry made in this diary.

This demonstrates that the learned Special Judge followed the dictum of the Supreme Court and searched for corroboration of the entry in MR 71/91 and found that there was no such corroboration forthcoming. In particular, he held that the entry in MR 68/91, even if taken for the purpose of corroboration, would not settle the issue inasmuch as the amount mentioned therein is different. The figure mentioned in MR 68/91 is 14.35 whereas in MR 71/91 the figure mentioned is 14.63700. Apart from this, the learned Special Judge submitted that there was no other material on record to even suggest corroboration of the entry in MR 71/91. Even the identity of the respondent No. 2 with the entry which related to "Pradeep" is not established.

8. Mr Tiwari, the learned Counsel appearing on behalf of the CBI, submitted that the entry in MR 71/91 which mentions the figure of 14.63700 relates to the allegations contained in the chargesheet that a sum of Rs. 14,63,700/- was paid by the Jains to the accused Pradeep Singh Sihag who was working as the Additional Private Secretary to late Shri Devi Lal (then Deputy Prime Minister of India). Mr Tiwari submits that the said accused Pradeep Singh Sihag was also grand nephew of late Shri Devi Lal. He submits that in view of the observations of the Supreme Court in V.C. Shukla (supra) contained in paragraph 39 thereof, the entry in MR 79/91 requires corroboration through independent evidence. Mr Tiwari submits that this corroboration is provided by three factors. The first factor being the figure of 14.35 mentioned in MR 68/91. The second factor being the purchase of an Honda Accord Car for the sum of Rs. 10 lacs out of the alleged amount of Rs. 14,63,700/- by Mr S.K. Jain for accused Pradeep Singh Sihag. He submitted that the said car was purchased and registered in the name of one Gajender Kumar but on a fictitious address. He further submitted that it has come in evidence that the delivery of the car had been taken by Amardeep Singh Sihag, who is the younger brother of the accused Pradeep Singh Sihag. He submits that this has come in the evidence of one Mr Guha Roy. He further submits that the car was ultimately transferred to the private limited company in which the accused Pradeep Singh Sihag was a shareholder. He further submitted that the car was recovered from the accused Pradeep Singh Sihag in 1995. The third factor that was mentioned by Mr Tiwari was that a trip to Norway was undertaken by S.K. Jain on 29.01.1991 to 31.01.1991 along with late Shri Devi Lal and the accused Pradeep Singh Sihag. He, therefore, submits that there is enough independent corroboration of the entry in MR 71/91 pertaining to the figure 14.63700 written against the name "Pradeep".

9. The learned Counsel appearing on behalf of the respondents submitted that the Supreme Court in paragraph 39 of the decision in V.C. Shukla (supra) had observed that the entries in MR 71/91 required clear independent corroboration. The court observed that even if the entry in MR 68/91 were taken into account for the purposes of Section 9 of the Indian Evidence Act, 1872 still, independent corroboration would be necessary. The learned Counsel also submitted that with regard to the purchase of the Honda car, the court below has dealt with this aspect in detail as set out in paragraph 64 of the impugned order which reads as under:

64. Further as per prosecution case, a total sum of Rs. 14,63700/- is purported to have been paid as per entires made in diary MR 71/91 to accused Pradeep Singh by accused Jains. However, Along with this fact, another fact has also been mentioned in the chargesheet stating that out of the aforesaid total amount of Rs. 14,63700/- recorded to have been paid to Pradeep Singh, accused S.K. Jain spent a sum of Rs. 10 lakhs towards the purchase of an imported Honda Accord Car which was given to accused Pradeep Singh. There is no mention of this fact in the diary MR 71/91 nor there is any oral or documentary evidence to this effect that out of the total amount of Rs. 14.63700 recorded to have been paid to accused Pradeep Singh, accused S.K. Jain had spent a sum of Rs. 10 lakhs towards the purchase of an imported Honda Accord Car which was given to accused Pradeep Singh. So prima facie these two facts does not reconcile with each other and if it is presumed that accused S.K. Jain had spent a sum of Rs. 10 lakhs towards the purchase of imported Car out of total amount of Rs. 14.63700 recorded to have been paid to accused Pradeep Singh, then this fact must have been mentioned in the diary MR 71/91. However, in none of the diaries or files i.e., MR 71/91 and MR 73/91, this fact has been mentioned that Sh. S.K. Jain spent a sum of Rs. 10 lakhs towards the purchase of an imported car out of the total amount of Rs. 14.63700. So this story of spending of Rs. 10 lakhs by S.K. Jain towards the purchase of an imported Car which was given to accused Pradeep Singh contradicts the document i.e., diary MR 71/91 and it is well settled that a person can speak lie but not the document.

10. The learned Counsel appearing on behalf of the respondents, with regard to the trip to Norway, submitted that there is no indication that any money was paid in connection with this trip. It is submitted by them that late Shri Devi Lal made this trip in his official capacity to Norway and Pradeep being his additional Private Secretary accompanied him in his official capacity. In fact, Mr S.K. Jain, as per the chargesheet itself, also took this trip on Government expense. Therefore, there is no question of any money being paid by S.K. Jain to the accused. On the contrary, according to them, Mr S.K. Jain went to Norway on Government expense. Therefore, according to the learned Counsel for the respondents, there is no independent corroboration whatsoever of the entry in MR 71/91 indicating a figure of 14.63700 against the name "Pradeep". It was also submitted that, in any event, the identity of the said "Pradeep" mentioned in the entry has not been established through any independent evidence.

11. Considering the circumstances referred to above and the arguments advanced on behalf of the counsel for the parties, it is clear that it is only an entry in MR 71/91 that requires explanation in view of the fact that the entries in MR 68/91 and MRs 72/91 and 73/91 cannot be looked into in view of the Supreme Court decision in V.C. Shukla (supra) as well as the fact that Shri Devi Lal has expired.

12. Insofar as MR 71/91 is concerned, the entry contained therein requires independent corroboration. As rightly observed by the Special Judge, the figure of 14.35 mentioned in MR 68/91 does not match the figure of 14.63700 in MR 71/91 and, therefore, even if, for the purposes of Section 9 of the Indian Evidence Act, 1871, the same is taken into consideration, there is no corroboration. Insofar as the purchase of the car is concerned, it is the case of the prosecution in the chargesheet itself that out of the sum of Rs. 14,63,700/- recorded to be paid to the accused Pradeep, a sum of Rs. 10 lakhs was paid towards the purchase of the Honda Car. There is, however, no mention of the amount of Rs 10 lakhs or the alleged balance of Rs 4,63,700/- in the evidence/material on record. Therefore, the Special Judge has rightly concluded that the allegations pertaining to the purchase of the Honda car would provide no corroboration for the entry in MR 71/91. It is not the case of the prosecution that a separate case of illegal gratification is made out on the basis of the purchase of the Honda car, de hors the entry contained in MR 71/91. Had that been the prosecution case, one would have considered it to be a legitimate ground for framing of charge in respect thereof. But as pointed out by the learned Counsel appearing on behalf of the respondents, the chargesheet itself in paragraphs 2 and 5 indicates that the allegation with regard to the purchase of the Honda car is inextricably linked with the allegation of the entry contained in MR 71/91 and that the two cannot be separated. In this view of the matter, I find that the Special Judge was right in coming to the conclusion that this allegation does not constitute independent corroboration of the entry in MR 71/91.

13. This leaves the third factor mentioned by Mr Tiwari and, that is, the trip to Norway. As regards the evidence with regard to the trip to Norway, there seems to be no manner of doubt that the trip was made. There is also no doubt that the trip was made by the accused Pradeep as well as Mr Devi Lal in their official capacities. There is also no manner of doubt that S.K. Jain went on that trip on government expenses. However, there is no evidence forthcoming that any money was paid by the said S.K. Jain to Pradeep in the course of that trip. Therefore, merely because the trip was undertaken and that too on government expense, it cannot be construed as amounting to an independent evidence for the purposes of corroborating the entry in MR 71/91.

14. This being the case, the basis laid down by the Supreme Court in paragraph 39 of the decision of V.C. Shukla (surpa) of requiring independent corroboration, is not satisfied in this case. The impugned order, therefore, does not call for any interference and this revision petition is accordingly dismissed. This order is without prejudice to the rights of the parties which they may have under law.

The lower court record be sent back.