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TMI Blog2017 (1) TMI 1164X X X X Extracts X X X X X X X X Extracts X X X X ..... which have been placed on record and the peculiar facts and circumstances projected in the case, we find that no case is made out to direct the investigation as prayed for. - Arun Mishra And Amitava Roy, JJ. ORDER 1. We have heard learned counsel for the parties at length, as to Interlocutory Application Nos. 3 and 4 of 2017 filed in Writ Petition(Civil) No.505 of 2015. 2. The writ petition has been filed by the Common Cause (A registered Society) and others for issuance of appropriate writ for setting aside the appointment made by the Union of India, of Respondent No.2 Mr. K.V. Chaudhary as Central Vigilance Commissioner and Mr. T.M. Bhasin as Vigilance Commissioner on various grounds as enumerated in the petition, pointing out that these persons are not of impeccable integrity. 3. In I.A. No.3/2016 it is averred that, Central Bureau of Investigation (in short 'the C.B.I.') conducted raid on the premises of Aditya Birla group industries in four cities on 15.10.2013, followed by another raid by the Income Tax Department on the very next day. The raid by the C.B.I. reportedly led to recovery of incriminating documents and unaccounted cash amounting to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Sahara Group of Companies vide its order dated 11.11.2016 which has been filed along with I.A. No.4. 6. I.A. No.4 has been filed by the petitioner pursuant to the direction given by this Court to substantiate the documents filed along with I.A. No.3. I.A.No.4 contains more or less the same facts. Details have been given as to Birla Group that cash of ₹ 25 crores was not accounted for in the regular books of accounts of Aditya-Birla Group or another company and it is also stated that Mr. Anand Saxena told the Income Tax Department that he was responsible for handling the cash transactions and he had received cash from Mr. Jaluram in the range of ₹ 50,00,000/- (rupees fifty lacs only). Mr. Jaluram is the Angadia, courier of local Hawala operators. However, it was stated that he was not aware about the payment made to anyone and he could not say to whom the unaccounted money had been paid. E-mails dated 2.1.2013, 7.4.2013 and 3.5.2013 have been placed on record. 7. It is further submitted that during the search operation, it was revealed that the proposed payment of ₹ 7.5 crores had been made during the period 9.1.2012 and 2.2.2012 with respect to Project-J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty of this Court to direct investigation as one whosoever high is not above law and this Court being the constitutional Court and the highest Court of the country should direct investigation into the material collected in the raids of two business groups. The investigation by special investigation Team should not be only ordered, but it should be monitored by this Court. 12. Shri Shanti Bhushan, learned senior counsel has also submitted that in the case of C.B.I. versus V.C. Shukla 1998 (3) SCC 410, this Court has laid down the law as to admissibility of material involved therein after the investigation was over and is of no applicability in this case, at this stage. The allegations which are reflected by the materials collected indicates commission of cognizable offence. Relying upon the decision of this Court in Lalita Kumari versus State of U.P. 2014(2) SCC 1, he urged that it is the bounden duty of the Court to direct investigation and falsity or correctness of the documents has to be seen in course of the investigation. 13. Shri Mukul Rohatgi, learned Attorney General for India and Mr. Tushar Mehta, learned ASG have submitted that the material in question with respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion had been completed but same is relevant for the purpose of decision of this case also. This Court has considered the entries in Jain Hawala diaries, note books and file containing loose sheets of papers not in the form of Books of Accounts and has held that such entries in loose papers/sheets are irrelevant and not admissible under Section 34 of the Evidence Act, and that only where the entries are in the books of accounts regularly kept, depending on the nature of occupation, that those are admissible 17. It has further been laid down in V.C. Shukla (Supra) as to the value of entries in the books of account, that such statement shall not alone be sufficient evidence to charge any person with liability, even if they are relevant and admissible, and that they are only corroborative evidence. It has been held even then independent evidence is necessary as to trustworthiness of those entries which is a requirement to fasten the liability. 18. This Court has further laid down in V.C. Shukla (Supra) that meaning of account book would be spiral note book/pad but not loose sheets. The following extract being relevant is quoted here-in-below :- 14. In setting aside the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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 the 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 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and in 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 v. Ram Rakha 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 proved, 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 are 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h I.A.No.4. The Settlement Commission has observed that the scrutiny of entries on loose papers, computer prints, hard disk, pen drives etc. have revealed that the transactions noted on documents were not genuine and have no evidentiary value and that details in these loose papers, computer print outs, hard disk and pen drive etc. do not comply with the requirement of the Indian Evidence Act and are not admissible evidence. It further observed that the department has no evidence to prove that entries in these loose papers and electronic data were kept regularly during the course of business of the concerned business house and the fact that these entries were fabricated, non-genuine was proved. It held as well that the PCIT/DR have not been able to show and substantiate the nature and source of receipts as well as nature and reason of payments and have failed to prove evidentiary value of loose papers and electronic documents within the legal parameters. The Commission has also observed that Department has not been able to make out a clear case of taxing such income in the hands of the applicant firm on the basis of these documents. 23. It is apparent that the Commission has reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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