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6 Learned counsel relied upon the following decisions in support of his submissions.

(1) Common Cause (A Registered Society) & Ors. Vs. Union of India & Ors.1 ;

(2) L.K. AdVani Vs.Central Bureau of Investigation2; (3) Central Bureau of Investigation Vs.V.C. Shukla and Ors.3; (4) Century Spinning and Manufacturing Company Limited & Ors. Vs. State of Maharashtra4;

1     AIR 2017 SC 540
      2     (1997) 41 DRJ 274
      3     (1998) 3 SCC 410
      4     (1972) 3 SCC 282





        rpa                                         10/30                                revn-523-16.doc


      (5)       Zenna Sorabji & Ors. Vs. Mirabelle Hotel Company (Pvt)
                Ltd. & Ors.5;
      (6)       Commissioner of income Tax Vs. Vatika Landbase Private
                Limited6;
      (7)       Commissioner of Income Tax Vs. S.M. Agarwal7;
      (8)       Bhajanlal Raheja Vs. P. Natrajan8; and
      (9)       B. Sidhalingappa Vs. M.C. Mohan9.


      7                 Learned            counsel                 for            CBI/Respondent

rpa 19/30 revn-523-16.doc The decision was delivered by the Supreme Court in the facts of the said case. On reading the said decision, it is apparent that the petitioners therein were seeking constitution of the special investigation team to investigate the alleged crime. From the factual matrix of the said decision it is apparent that the CBI had conducted raid on the premises of business concerns which was followed by the raid of income tax department. The raid conducted by CBI led to recovery of certain incriminating documents and unaccounted cash. The CBI had transferred the incriminating documents to the income tax department. It was also revealed that the laptop of one of the person was seized containing a cryptic entry made in the said laptop referring to political functionaries. The random look suggested that cash was transferred to important public figures and the copies of the random pages were filed before the Court. The document contains the proposal and the actual payments allegedly made to the large number of political leaders of the country. It is in these circumstances, the Supreme Court has considered the fact that the documents which have been filed on record were not in the form of account books maintained in the regular course of business. They were random sheets and loose papers and their correctness and authenticity even for the purpose of income rpa 20/30 revn-523-16.doc mentioned therein have been found to be unreliable having no evidentiary value by the concerned authorities of income tax. In relation to the documents recovered from one business concern there was adjudication by Income Tax Settlement Commission. The said Commission had observed that, the scrutiny of entries on loose papers, computer prints, hard-disk etc., have noted that transactions were not genuine and the details in the documents have no evidentiary value and the said documents were not relied upon by Settlement Commission. The reference was also made to the observations of the Supreme Court in the case of CBI Vs. V.C. Shukla (Supra). The Supreme Court further observed that, prima facie, such evidence is not admissible. In paragraph 21 of the aforesaid decision, the Supreme Court has observed that there has to be some relevant and admissible evidence and some cogent reason which is prima facie reliable and that too supported by some other circumstances pointing out that particular third person against whom the allegations have been levelled was in fact involved in the matter or he has done some act during that period which may have co-relations with the random entries. The Court, therefore, opined that the documents which were relied upon were not maintained in regular course of business and, thus, lack required reliability to rpa 21/30 revn-523-16.doc be made in the foundation of police investigation. Thus, it is apparent that the observations of the Supreme Court were made in the peculiar facts of the said case. In the present case there is a prima facie evidence to establish link between the deposits made by accused no.1 with the applicant. There is direct transaction between both the parties. The evidence cannot be discarded at this stage by interpreting Section 34 of Evidence Act. Apart from that the protection against applicant does not rest solely upon the party-wise stock reports, but, also on corroborative material i.e. handwritten notes, handwritten gold inventory, statement of Prashant Bhosle, recovered deleted file from hard-disk found at applicants office and the reports of experts from Directorate of Forensic Science and Central Forensic Science Laboratory. All this is legally admissible material. The said fact is corroborated by other circumstances, and, therefore, the evidence cannot be discarded at this stage. 12 Learned counsel relied upon the decision of the Delhi High Court in the case of L.K. Advani (Supra) where in also the prosecution lodged against the accused on the basis of entries in the dairies, note books and loose sheets relating to disbursement of payment to the accused was under challenge and the said rpa 22/30 revn-523-16.doc prosecution was quashed and set aside by the Court. In the said case, the accused J.K. Jain had made entries in his own handwritten with regard to the receipt of certain amounts and disbursements thereof. There was no averments in the charge- sheet that the said entries in the books of account came into being in execution of conspiracy and the same were in furtherance of the common intention of the applicant-accused therein and the co-accused Jains. The alleged accounts were maintained by Shri J.K. Jain for the benefit of his employers to let them know as to what were the amounts received and disbursed by them. The Court, therefore, observed that it can thus be safely inferred that the payees of the said amounts were not at all interested in the maintenance of the alleged accounts. Thus, in the factual aspects involved in the said matter the proceedings were quashed against the accused. The said decision was, therefore, taken to Supreme Court which is also relied upon by counsel for applicant. The said decision of the Supreme Court in the case of CBI Vs. V.C. Shukla (Supra) was discussed at length in the decision in the case of Common Cause (Supra) which is refereed to hereinabove. In the said decision, it was observed that the entries in the Jain's notebooks were admissible under Section 34 of the Evidence Act, but, the rpa 23/30 revn-523-16.doc file containing loose sheets of papers were not "book" and, hence, entries therein could not be admissible under Section 34 of the Evidence Act. It was also observed that the books of account "Regularly kept" or whether the books were regularly kept would depend upon the nature of the occupation, system of accounting and contemporaneity in making entries may deffer. Making of entries at or about the time of the transaction is not the test in any case. In the said case, the entire edifies of the prosecution case was built on the dairies and files and for that matter the entries made therein recovered from one J.K. Jain. In the said decision, the prosecution had conceded that besides the alleged entries in the diaries and the loose sheets, there was no other evidence to fasten the liability against the accused. In the order under challenge which was passed by the High Court, it was held that the documents were neither books of account nor kept in the regular course of business and that even if they were admissible under Section 34 of the Evidence Acct, they were not in view of the plain language of the Section sufficient enough to fasten the liability on the head of a person against whom they were sought to be used. The other decision relied upon by the counsel for the applicant in the case of Century Spinning and Manufacturing Co. Limited and others (Supra), the Court rpa 24/30 revn-523-16.doc has considered the scope of Section 251-A of the Code of Criminal Procedure. It was observed that if the charge is found groundless on the face of the record the accused is entitled for an order of discharge. In the present case, however, considering the nature of evidence against the applicant, I do not think that the case for discharge is made by the applicant. The Supreme Court in the said decision, has observed that if upon consideration of all the documents referred to in Section 173 and making such examination, if any, of the accused as the Court thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Court considers the charge against the accused groundless, he shall be discharged. The other decisions relied upon by the applicant also deals with the admissibility of evidence in the light of Section 34 of the Evidence Act, which issue was discussed at length in the decisions referred to hereinabove. Hence, it is not necessary to elaborate the views expressed in the said decisions. All these decisions are based on distinct facts and the same cannot help the applicant in dropping proceedings against him. According to the prosecution, the data from the Computer of the applicant was deleted and hard-disk was sent to Forensic Expert. The Forensic Expert retrieved the data which was deleted. The rpa 25/30 revn-523-16.doc experts report shows that the data pertain to the handwritten document recovered from the premises of accused no.1 wherein there is entry regarding deposit of 500 grams of gold on 17 th August, 2011 and 500 grams of gold on 30 th August, 2011. The statement of witness Prashant Bhosale indicates that the wife of accused no.1 had deposited the gold on the aforesaid dates and had received that gold as per the say of accused no.1. He also identified his signature on handwritten documents referred to above which is recovered from the premises of accused no.1. This fact give grave suspicion that the applicant and accused no.1 had illegal dealing inter-say in gold. The contention of the applicant-accused was that the data retrieved from the hard-disk of accused does not come in the category of books of accounts and even otherwise entries in the books of accounts are not alone sufficient to charge any person with liability under Section 34 of the Evidence Act. The data retrieved from the hard-disk of accused no.2, the computer print out (party-wise stock statement) in the name of "Archana" recovered from the premises of accused no.1, the entry written by the son of accused no. 1 regarding 6633 grams gold with accused no.3 constitute prima facie sufficient material to frame charge of abatement against the applicant. The trial Court has rightly rpa 26/30 revn-523-16.doc rejected the application for discharge. Prima facie case is made out to frame the charge. In the light of the evidence before the Court even other than the entries relied upon by the prosecution, it would not be advisable to discard the said evidence on the basis of the submissions advanced by the advocate for the applicant. It would be open to the applicant- accused to pursue the said defence during the course of trial. 13 It is pertinent to note that the report of the Directorate of Forensic Science, Gandhinagar dated 17th December, 2014 indicated that the 21 hard disks and the pen drive were forensically analysed, the questioned documents Q-1 to Q-23 were searched for in the hard disks and pen drive, and that a deleted database file bearing the name "STOCKTRAN.DBF" was found on the hard disk bearing Exh.B-5- 1/Serial No.Z3T7NBD5, which was found to contain data relevant to the documents numbered as Q-2 and Q-8. The hard disk bearing Exh.B-5-1/Serial No.Z3T7NBD5 was seized from the office of Auro Gold Jewellery Pvt. Ltd. at Cama Industrial Estate, Sun Mill Compound, Lower Parel (West), Mumbai 400 013, and is mentioned at sr.no.8 of Annexure 'B' of the search list dated 17th December, 2013, (D-36). Q-2 is the printout of the party wise rpa 27/30 revn-523-16.doc stock report for the period 1st August, 2013 to 9th November, 2013 seized from the office premises of Shyamal Accharya (A1) on 23rd November, 2013. Q-8 is the printout of the party wise stock report for the period 1st August, 2013 to 30th September, 2013 seized from the residential premises of Shyamal Achahrya (A1) on 23rd November, 2013. A printout of the said file "STOCKTRAN.DBF" was also provided. Entries pertaining to "ARCHANA" were found in the said file as follows: