Diary entries must be backed by independent evidence

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New Delhi, March 22 (IANS) The documents involving former Karnataka chief minister B.S. Yeddyurappa, which disclosed alleged payoutsin 2009, have once again raised the question: Can entries in diaries be treated as admissible evidence? Legal experts tend to allude to the three-decade-old Jain hawala case.

Legal experts say if entries in books of account, regularly kept in the course of business are relevant, then it can be treated as evidence.

“But it will depend on the investigation whether entries are supported by independent evidence,” says senior advocate Siddharth Luthra.

Senior Advocate Vikas Pahwa said that there is no evidentiary value of a personal diary containing random entries and accounts.

“In the Jain hawala case, the legal position regarding diaries was clarified that entries in diaries are not books of account. The entries in dairies have to be supported by the an independent evidence,” said Advocate Luthra.

Under Section 34 of the the Indian Evidence Act, entries in books 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.

Senior Advocate N. Hariharan told IANS that it will depend on the investigating agencies whether entries in diaries have enough material to corroborate them with other relevant piece of evidence.

“The entries in diaries are not admissible in evidence in terms of Section 34 of the Indian Evidence Act, as the same are not books of accounts kept in regular course of business,” advocate Pahwa told IANS.

He said Supreme Court in various cases has interpreted that diaries and loose-sheets containing entries are inadmissible in evidence.

“The law requires that these entries, if relied upon, need corroboration. It is also required to be independently established by way of cogent evidence that the alleged entries are real and that the moneys were actually paid in terms of those entries. Having said that every case needs to be independently dealt with and requires investigation,” Pahwa told IANS.

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However, one of the prosecutors told IANS that as per Supreme Court judgement delivered in Jain Hawala case against prominent politicians L.K. Advani and V.C. Shukla has ruled that the diaries presented by the prosecution were admissible as evidence under Section 34 of the Indian Evidence Act, 1872.

The apex court in its judgment delivered on March 2 1998 discharged Advani and Shukla observing that no prima facie case has been made out against them and that there is no evidence against them except the diaries, note books and the loose sheet with regard to the alleged payments.

The judgement was delivered by a three-member Bench of the apex court that time, comprising then Justices M.K. Mukherjee, S.P. Kurdukar and K.T. Thomas, who had also held that the evidence like diary is of such a nature which cannot be converted into legal evidence against them.

The apex court was hearing CBI appeal challenging a Delhi High Court’s order which had acquitted Advani and Shukla in the case.

Both prosecution and defence counsel placed emphasis on the interpretation of the diaries as admissible evidence.

According to Central Bureau of Investigation (CBI), the material collected during investigation clearly disclosed that the Jains were in the habit of making payments to influential public servants and political leaders of high status expecting official favours from them.

They have also made payments to Shukla and Advani with that oblique motive.

As against Advani, the specific allegation was that he received a sum of Rs 25 lakhs from Jains during his tenure as a member of parliament, while Shukla, former cabinet minister, received approximately Rs 39 lakhs from Jains.

The CBI had alleged that during 1988-1991, Jains entered into a criminal conspiracy among themselves, the object of which was to receive unaccounted money and to disburse it to their companies, friends, close relatives and other persons including public servants and political leaders of India.

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During the aforesaid period, the Jain brothers received Rs 59,12,11,685, a major portion of which came from foreign countries through hawala channels as kickbacks. An account of receipts and disbursements of the monies was maintained by one J.K. Jain in the diaries.

The top court had observed that the two spiral note books and the two spiral pads are “books” within the meaning of Section 34, but not the loose sheets of papers contained in the two files.

The court also took it into account whether the “books” fulfil the other requirements of Section 34 so as to be admissible in evidence.

Altaf Ahmed, then Additional Solicitor General, appearing for the CBI, 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 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 to receive money through hawala channels and other sources.

According to Altaf Ahmed, any book in which monetary transactions are recorded and reckoned would answer the description of ‘book of account’ within the meaning of the Section 34 of Evidence Act.

Defence counsel Kapil Sibal had disputed the admissibility of those books in evidence on the ground that they were neither books of account nor were they regularly kept in the course of business. Sibal had argued that those books were memoranda kept by a person for his own benefit.

Sibal had argued that “account” meant a formal statement of money transactions between parties arising out of a contractual or a fiduciary relationship.

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Sibal had also submitted that the entries 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.

According to 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 Jain brothers’ economic interests.

Countering Ahmed, Sibal had 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. He also responded that there was no proof, even prima facie, against any of the accused.

Advani’s counsel Ram Jethmalani had argued that independent evidence was required to proof the charges and in absence of any such evidence, no liability can be foisted under Section 34 of the Evidence Act.

The top court has held that the prosecution has not been able to made out a prima facie case to prove that Advani and Shukla were parties to such conspiracies and said: “…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 that the case the prosecution intended to project now was not that there was a conspiracy amongst the Jains to offer illegal gratification to Advani and Shukla and that pursuant thereto the latter accepted the same,” said the top court’s order delivered on March 2 1998.

–IANS

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