Model Question and Answer on S.34, 10 and 17 of the Evidence Act.

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Fact Sheet :

On April 3rd, 2001, the Central Bureau of Investigation (CBI), New Delhi, searched the premises of one Mr.Alex Richard Sharma at GK, Delhi on the basis of a secret informant’s message. In course of the search they recovered, besides other articles and documents, three diaries, three small note books and three 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. These notebooks appear to have been regularly maintained from the year 1997 to 2000. On the basis of this, Preliminary investigation was taken up by the CBI to decipher and comprehend those entries; it revealed payments amounting to Rs. 410 crores, out of which 300 crores had been illegally transferred from abroad through hawala channels, during the years 1997 to 2000 to 23 persons including some leading businessmen and politicians, some of whom were even members of the State Legislative Assembly during the relevant period. It further revealed that the Alex Richard Sharma and his sister 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 Alex as a reward for giving them and the companies they own and manage various contracts. On such revelation the CBI registered a case against them under the Prevention of Corruption Act. Chargesheet was filed against Alex, his sister, businessmen and politicians F.S and A.S.

F.S and A.S, amongst 200 other politicians (almost the entire state assembly) are reported to have attended a party hosted by Alex, two years prior to this raid.

The question concerns case against F.S & A.S. The prosecution case against them is premised on the fact that certain sheets of paper were found in files seized from Alex, which contain their initials and mention some amount of money against their money, which as per CBI is the amount payable to them as kickbacks. F.S & A.S’s initials (and not the full name) are mentioned on some sheets clipped together in the files. There is no balance at the foot of these pages as to final amount. CBI argues that there can be no direct evidence of conspiracy and the same has to be inferred from the facts of the case; It argues that their names on the sheets along-with previous relations with Alex is sufficient to take the matter to trial. Prosecution argues that these facts are relevant and admissible against F.S and A.S u/ss 10, 34 and 17 of the Evidence Act.

F.S & A.S claim no case is made out against them as there is no evidence to substantiate the  charge and no case is made out against them.

Decide the admissibility/relevancy of these papers, keeping in mind the provisions of Section 34, 10 and 17 of the Evidence Act.

  • Take a moment to think of the core legal issues in the case.
  • Try to frame them in the form of questions that you put to yourself.
  • Identify statutory provisions. State them briefly. Integrate them seamlessly with the facts of the Case.
  • Try writing an answer yourself.

Model Answer : 

Let us begin by marshalling the evidence against F.S and A.S.

It has been conceded by the prosecution that the only evidence available against F.S & A.S are the sheets of paper stacked up in one of the files, which contain initials of their names and an ‘X’ amount of money against it. This is sought to be preceded by them attending a party at Alex’s house, albeit not alone but with almost the entire political class of the State.

According to the prosecution, the entries in the books of account raise an inference of financial dealings between F.S and A.S and Alex, and are relevant u/s 34 of the Evidence Act. According to the prosecution, these entries are also relevant u/s 10 of the Evidence Act as writings of a co-conspirator (Alex) and can be considered against F.S and A.S. Their relevancy is also sought to be traced to Section 17 being ‘Admissions/Confessions’

Let us proceed to examine each argument separately :

  1. Whether Section 34 of the Evidence Act is attracted ?

Section 34 of the Evidence Act renders entries in ‘books of accounts, regularly kept in the course of business’ as relevant. From a plain reading of the Section, it is manifest that to make an entry relevant thereunder it must be shown that : it has been made in a book, that book is a ‘book of account’ and that book of account has been ‘regularly kept in the course of business’. From the above Section it is also manifest that even if the above requirements are fulfilled and the entry becomes admissible as relevant evidence, still, the statement made therein shall not alone be sufficient evidence to charge any person with liability.

It is thus seen that while the first part of the section speaks of the relevancy of the entry as evidence, the second 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.

It is important to flag that 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 ultimate detection give them in a sufficient degree a probability of trustworthiness.
The question that arises in the present case is : ‘Whether loose sheets of paper in question, clipped together, can be called ‘books of accounts’ for the purpose of Section 34 of the Evidence Act?”

The answer has to be in the negative. In this regard, the interpretation of the word ‘Book’ becomes important. A ‘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. Though notebooks and diaries can be construed to be ‘books’ for the purposes of Section 34, Loose sheets or scraps of paper clipped together by a removable clip in a file cannot be termed as ‘book’ for they can be easily detached and replaced. These papers can easily be replaced, therefore, there is no difficulty of falsification. Furthermore, the fact that there is no addition/subtraction and total balance at the foot of these pages, takes them out of the ambit of the word ‘account’. Until ‘entries’ are totalled or balanced, or both, as the case may be, there is no reckoning and no ‘account’.

Therefore, entries on loose sheets of paper, which are not totalled or balanced ultimately, do not qualify as ‘entries in the books of accounts’ and are, therefore, not relevant u/s 34 of the Evidence Act.

  1. Whether entries in these loose sheets of paper can be held to be relevant u/s 10 of the Evidence Act, in proof of ‘conspiracy’ ?

The answer to this question also has to be in the negative. First of all, there is nothing on record to suggest that the entries indubitably concern F.S and A.S as only their initials are mentioned in the entries and not their full names. Their initials are not so distinctive so as to convince the court that the entries, distinctly relate to them only, beyond reasonable doubt. The prosecution has not led on record any independent evidence to establish that link. Merely because of the fact that F.S and A.S had attended a party two years back with Alex, is not sufficient to establish the existence of conspiracy. Evidence shows almost the entire political class of the State was present at the party and not just F.S and A.S. The link, purported to be shown by prosecution as evidence of conspiracy is too tenuous and conjectural. Section 10, which manifests the rule of agency, renders admissible statements, act, writings of one co-conspirator against the other. A bare reading of the section demonstrates that the condition precedent for this section is ‘reasonable ground to believe the existence of conspiracy to commit an offence or actionable wrong’. In the present case, there is no evidence on record to suggest any conspiracy between F.S and A.S on one side and the accused Alex on the other, therefore, the entries cannot be considered against FS and AS by virtue of Section 10 of the Evidence Act.

 

  1. Whether ‘sheets of paper’ can be construed as Admissions/Confessions, and relevant against F.S and A.S ?

As regards the question of ‘Admission’, from a combined reading of Sections 17, 18 and 21, 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 to the proceeding or his authorised agent as ‘admission’. In the present case, the entries have been made in the handwriting of Alex; there is nothing to connect Alex with A.S or F.S. It is not the prosecution case that Alex’s admission in the form of entries was made in a representative capacity for A.S or F.S. The total absence of ‘evidence of conspiracy’ has already been delved upon. In that background, the entries, therefore, can at best be construed as admission of the accused Alex and marshalled against him; there is no justification as to how the same can be attributed to F.S and A.S, in absence of the crucial connecting-link.

The entries, by themselves, whichever way one looks at them, do not amount to confession of the offence either. Therefore, these entries cannot be taken into consideration against co-accused, by aid of Section 30 of the Evidence Act.

To summarise, for foregoing reasons, the entries on the loose sheets of paper are not relevant against F.S and A.S either as entries in books of accounts, writings of co-conspirator, or admissions.

*Disclaimer : This is a part of the series in ‘Model Answers’ that we’ll try and share with your through this platform. Try to analyse the method with which the legal issues are to be analysed and conclusions drawn. It be noted that, more than the end result/answer to the question, it is the thinking process that is important. This is what the answer attempts to demonstrate. Most of these questions can be decided either way, and there is no straight right or wrong answer. What matters is, the ability to give rational, legally (and common sensically) sound reasons and legal justification for the conclusions reached.  

 

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