CBI concedes Jain diaries not account books

The CBI today conceded before Delhi High Court that the Jain dairies were not books of accounts as per section 34 of the Indian Evidence Act.

But they were still admissible under sections 10 and 17 of the Act, contended senior counsel N Natarajan as he concluded arguments on behalf of the investigating agency against petitions filed by Bharatiya Janata Party President L K Advani and former Union Minister V C Shukla seeking that charges against them be quashed.

He said the CBI had not claimed that the documents -- consisting of two dairies, two notebooks and two files -- were books of accounts kept in course of regular business by the three Jain brothers and their employee, the main accused in the Rs 65 crore Jain Hawala case. He pointed out that under section 17, a document written by an accused can be used as evidence against him. In this case, the CBI had established that the Jain dairies were handwritten by J K Jain, an employee and that signature on them was that of key accused S K Jain.

Since section 10 says an admission by an accused can be used against co-conspirators, the diaries become a valuable piece of evidence to show that the Jains paid huge bribes to several politicians and bureaucrats as part of a general conspiracy to secure "illegal kickbacks" from foreign companies by securing Indian government contracts for them, he added.

This view was refuted by senior counsel R K Anand, who is representing Shukla. Anand submitted that in the absence of any independent evidence establishing that Shukla had actually received bribes, the diaries could not be used against him.

Anand claimed that the diaries could not be considered under section 10 of the Evidence Act unless there was independent proof of the alleged conspiracy. He quoted a Supreme Court judgement as saying that where the conspiracy charge is of a very general nature, concert of purpose of the co-conspirators has to be established by independent evidence.

The CBI has to establish separate acts by individual co-conspirators, showing object of common purpose, he said. In Shukla and Advani's case, the CBI had already admitted that there was no direct evidence and the case were based only on the circumstantial fact of their initials figuring in the Jain diaries, Anand added.

Anand also refuted the CBI’s contention that members of Parliament were public servants and were thus covered under the provisions of the Prevention of Corruption Act.

In case of legislators there were no appointing or removing authorities whose sanction had to be secured before prosecuting them, the counsel pointed out.

He further contended that under the Prevention of Corruption Act, such sanction by the appointing authority was necessary before a court took cognisance of a complaint against a public servant.

No such sanction had been secured in Shukla’s case and the special court of V B Gupta had erred in taking cognisance of the chargesheet and ordering framing of charges of corruption and criminal conspiracy against him, he added.

Earlier, concluding the CBI argument, Natarajan submitted that strong circumstantial evidence was on record against Advani and Shukla as entries were made against their initials under the head "political expenses" in the Jain documents.

However, Justice Shamim observed that to be conclusive, circumstantial evidence has to be in an unbroken chain of events which are incapable of any explanation other than the guilt of the accused.

Could the alleged payments not have been gifts or political donations, Justice Shamim queried, pointing out that there was no direct evidence of payment or acceptance of the money.

The CBI counsel responded that under the Prevention of Corruption Act, there is a "statutory presumption" that any gratification, other than the legal renumeration, would be presumed to be illegal gratification.

Also, there were huge sums of money involved and Shukla's initials figure at several places while those of Advani appear twice. This shows that the conspiracy was an ongoing one. Considering the huge sums involved. It would could not be presumed that they were being given away as gifts.

Also, if these were political donations, the money should have been accounted for by the parties. Under section 13 of the Prevention of Corruption Act. Anyone obtaining illegal gratification on behalf of anyone is liable for prosecution, he added.

According to the CBI, Advani and Shukla received Rs 35 lakh and Rs 38 lakh from the Jain brothers while serving as public servants during 1988-90.