Yeddyurappa payoffs: Court unlikely to admit diary as evidence

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The ‘Yeddyurappa diary,’ if it reaches the court, may be fated to die a quick death. Section 34 of the Indian Evidence Act requires ‘diary entries’ to cross a series of steep hurdles to pass muster as evidence.

Diary entries are hardly considered admissible evidence in a court of law. A plethora of decisions by the Supreme Court has shown that judiciary treats diary entries with distrust.

The ‘Yeddyurappa diary,’ if it reaches the court, may be fated to die a quick death. Section 34 of the Indian Evidence Act requires ‘diary entries’ to cross a series of steep hurdles to pass muster as evidence.

Firstly, diary entries should be made in a book. The book should be a ‘book of account’ kept regularly in the course of business. The diary entries alone will not be sufficient evidence to charge any person even if all the requirements are fulfilled and the jottings are proved relevant and admissible. The entries may, at best, be some form of corroborative evidence. Further independent proof is required before an FIR is lodged against the persons named in the diary.

Independent evidence

The apex court’s judgment in Beni v. Bisan Dayal explains why diary entries alone cannot form the basis for an FIR. “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,” the Supreme Court held.

In CBI versus V.C. Shukla (Jain Hawala case), reported in 1998, the apex court explains the import of each term used in Section 34, the provision which deals with entries in a diary or a book. The term ‘book’ in the section 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.”

A ‘book of account’ used in Section 34 means a record of “formal statement of transactions between two parties, including debtor-creditor relation and arising out of contract, or some fiduciary relations.”

Thirdly, the diary or book of account should be ‘regularly kept in the course of business.’ That is, the entries should be part of “some continuous and uniform practice in the current routine of the business of the particular person to whom they belong.”

The ‘Yeddyurappa diaries’ would have to pass muster on all these conditions before being considered as evidence.

Sahara-Birla case

In its order of January 11, 2017 in the Sahara-Birla pay-offs case, a Supreme Court Bench of Justices Arun Mishra and Amitava Roy (now retired) held that ordering the registration of an FIR against Prime Minister Narendra Modi, other national leaders and senior bureaucrats merely banking on “some diary entries and random loose computer sheets” was “inherently improbable.”

“The anomaly witnessed in the Jain Hawala case should not take place. The Supreme Court ordered investigation and on the other side the lower court discharged the accused,” Justice Mishra observed. The hawala case, based on diary entries made by the Jain brothers of bribes paid, collapsed due to insufficient evidence. CBI’s role was criticised and the Central Vigilance Commission was given supervisory powers over the investigative agency.

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