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(2) The present petitions relate to the corruption charges levelled against the petitioners under the Prevention of Corruption Act, 1988.

(3) The petitioners herein, known as S/Shri L.K.Advani, V.C.ShukIa, J.K.Jain, N.K.Jain, S.K.Jain and B.R.Jain have taken exception through the present revision petitions bearing Nos. 124, 166, 167, 256, 257, 265, 328, 329, 330 and 331 of 1996, to the judgments and orders dated September 6, 1996 and May 8,1996 passed by the learned Special Judge in C.C. Nos.l7/96 in RC/1(A)/95-ACU-6 under Section 120B Indian Penal Code and Sections 7 & 13(2) read with Section 13(l)(d) of the Prevention of Corruption Act, 1988 and under Section 120B Indian Penal Code and Section 12 of Prevention of Corruption Act. The learned Special Judge through the said judgment and order came to the conclusion that there was a prima facie case against the above-named petitioners under Section 120B Indian Penal Code and Sections 7, 12 and 13(2) read with Section 13(l)(d) of the Prevention of Corruption Act against all the abovenamed persons i.e. S/Shri L.K.Advani, S.KJain, J.K.Jain, N.K.Jain and B.RJain. He further found that there existed a prima facie case for framing charges under Sections 7 & 13(2) read with Section 13(l)(d) of the Prevention of Corruption Act against Shri L.K.Advani. He further opined that there was a prima facie case for framing a charge under Section 12 of the Prevention of Corruption Act against S/Shri S.KJain, N.KJain, J.K.Jain and B.RJain. He thus ordered that charges be framed against them accordingly.

(5) Aggrieved and dis-satisfied with the said judgments and orders the petitioners have approached this Court for quashment of the said charges and the proceedings pending decision before the learned lower court.

(6) All the above petitions are being taken up together for disposal as the questions of law and facts which are likely to arise while disposing them of would be the same. Hence it is proposed to dispose them of by one and the same judgment.

(7) Relevant and material facts which led to the presentation of the petition pertaining to charge sheet No. RC/1(A)/95-ACU-6 and charge sheet No. RGI(A)/95- ACU(VI) are as under: that during the years 1988-9petitioners S/Shri S.KJain, J.K.Jain, B.RJain and N.KJain entered into a criminal conspiracy amongst themselves. The object of the said conspiracy was to receive un-accounted money and to disburse the same amongst themselves, friends, close relations and amongst different persons including the public servants and political leaders . With the said end in view petitioner Shri S.KJain lobbied with different public servants and government organisations in the power and steel sectors of the Government of India for the purposes of pursuing of award of various contracts to different foreign bidders with the motive of getting illegal kickbacks from them. The petitioners in connection therewith received Rs. 59,12,ll,685.00 during 1988-1991 by channelling some amount within the country and by receiving major portion of the same from foreign countries through hawala channels as kickbacks from the foreign bidders of certain projects of Nhpc and NTPC. The note books, diaries and Files seized from the residence of the petitiorier Shri J.KJain on May 3,1991 during the course of his house search which was conducted in case No. R.C.5(S)/91 -SIU(V) Sic (II) Cbi, New Delhi, disclosed the receipt of the amounts mentioned in the body of the charge sheet. A close scrutiny of the diary MR68 of 1991 and the file Mr 72/91 seized from the residence of the petitioner Shri J.KJain on May 3,1991 reveals that a total amount of Rs. 60 lacs was paid to Shri L.K.Advani as noted in the diaries during the period April 1988 - April 1991 and these expenses are under the heading of POE. A sum of Rs. 35 lacs was paid to him during the period from April 1988 - March 1990. Similarly, a sum of Rs. 25 lacs was paid to him on April 26,1991. The above- mentioned facts and circumstances disclosed that the Jains individually as well as collectively were in the habit of making payments to influential political leaders and public servants of high status and accepting official favours from them. Shri L.K.Advani was a well known political leader not only during the relevant period but much before as well as after the same. He has been holding high public offices, e.g., Member of Rajya Sabha, Member of Lok Sabha, as well as Union Cabinet Minister for a long period. He is still a Member of Lok Sabha and President of BJP. The above- mentioned payments of Rs. 60 lacs were made by Jains which amount to payment of illegal gratification other than legal remuneration. However, out of this payment of Rs.60 lacs, the payment of a sum of Rs. 25 lacs pertains to the period when Shri L.K.Advani was not a 'public servant'in April 1991. It is thus clear from above that Shri L.K.Advani has committed an offence of criminal conspiracy and criminal misconduct punishable under Section 120B Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Whereas the petitioners S/Shri S.K.Jain, N.K.Jain, B.R,Jain and J.K.Jain have committed offences punishable under Section 120B Indian Penal Code and Section 12 of the Prevention of Corruption Act.

(54) The above view was reiterated in different judgments of the Hon'ble Supreme Court as reported in Superintendent & Remembrancer of Legal Affairs West Bengal v. Anil KumarBhunjal, , Union of India v. Prafful Kumar Sammal, , and State of Himachal Pradesh v. Krishan Lal Pradhan, (55) With the above background it is to be seen now as to whether the learned lower court was justified in ordering the framing of the charges ( vide impugned judgments and orders dated May 8,1996 and May 24,1996 and August 19,1996 respectively) under Section 120-B Indian Penal Code and Sections 7,12,13 read with Section 13)(d) of the Act against the petitioner Shri L.K.Advani and Jain, and under Sections 7 and 13(2) read with Section 13(l)(d) of the Act against Shri L.K.Advani only and under Section 12 of the Act against Jains, and in framing of the charges against Shri V.C.Shukla and Jains under Section 120-B Indian Penal Code read with Sections 7,12 and 13(2) and 13(l)(d) of the Act, (56) Since we are concerned with the construction of the said sections of the Act it would be just and proper to examine the provisions of the said sections in extenso before proceeding any further in the matter. Section 7 of the Act is in the following words: "Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine. Explanations. - (a) "Expecting to be a public servant." If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section."

(101) Mr. Jethmalani, learned counsel for the petitioner Shri L.K.Advani has strenuously argued that in the instant case the case of the prosecution is that the petitioner Shri L.K.Advani accepted a sum of Rs. 35 lacs from Jains as per the entries in Mr No. 72/91 page 8 during the period from April 1988 to March 1990. No specific date has been given in the charge sheet with regard to the said payment. Objection with regard to the said defect was taken in the very beginning i.e. immediately after the presentation of the charge sheet. Thus the charge sheet in the instant case is a vague one and is not sustainable in the eye of law and the cognizance taken is a bad one under Section 191(b) of the Code of Criminal Procedure. According to the learned counsel this is not the case of the prosecution that during the aforesaid period the monies were accepted on each and every date of the said period and thus the offence was committed continuously during the said period. Had it been the case, the cognizance would not have been bad. However, in the present case no specific date is given. Hence the cognizance is bad. Admittedly, Shri L.K.Advani was not a public servant as per the prosecution case for a period of five months i.e. during the period from April 1988 to September 8,1988. Thus the possibility of his not accepting the impugned amounts during the said period has not been ruled out by the prosecution. I agree.