KANTA BHATNGAR J. - (1.) APPELLANT T. D. Gulati was tried for the offences under sections 120-B and 420 I. P. C. and Sec. 5 (2) read with section 5 (l) (d) of the Prevention of Corruption Act by the Special Judge. (S. P. E.) Rajasthan, Jaipur. By the judgment dated July 19, 1975 he was held guilty for the aforesaid offences and sentenced to one year's rigorous imprisonment and a fine of Rs. 500/-, in default to undergo three months rigorus imprisonment on each count with an order that the substantive sentences shall run concurrently.
(2.) BRIEFLY stated the facts of the case leading to the trial and the conviction of the appellant are as under:- The Appellant was working as a clerk in the office of the Superintendent of Post Office, Jodhpur during the year 1970. He entered into a conspiracy with the proprietor of Prince Medical Store Jodhpur that he would pay 10% of the price of medicines to him and the Proprietor would issue bogus cash-memos without supplying the medicine. That, the appellant in conspiracy with certain Doctors obtained essentiality certificates and verification without there being any necessity for the same in consequence to this plan the appellant obtained medical reimbursement of a sum of Rs. 263. 50 from the Govt. The allegations were that the accused prepared false medical bills and false medical reimbursement claims. The Medical Officer concerned falsely verified them and the Proprietor of the Prince Medical Stores prepared cash-memos without supplying medicines. That, the entire transaction was bogus in order to cheat the Govt. It was also alleged that the accused being a public servant, in his capacity as public servant misused his office in obtaining the amounts of the false medical claims. Information about all this bogus transaction was received by the C. B. I. & S. P. E. Division started the investigation. During the course of investigation enquiries from certain Chemists, Stockists and Suppliers of medicines were made as to whether the medicines mentioned in the essentiality certificates were ever sold to the Proprietor Prince Medical Stores or not. Chemist Mohanlal approached the District Magistrate, Jaipur and expressed his desire to give true and correct statement. The District Magistrate, Jaipur granted him pardon. He also granted necessary sanction to prosecute the appellant. Upon completion of necessary investigation, charge sheet against the appellant was filed in the Court of Special Judge (S. P. E), Rajasthan Jaipur. The learned Judge, charge sheeted the appellant for the aforesaid offences and recorded his plea. The appellant denied the indictments and claimed to be tried. Prosecution examined 57 witnesses in all. No defence witness was examined. The learned Special Judge placed reliance on the testimony of Mohan Lal (P. W. 2) Approver, Jagdish (PW. 56) and G. V. Ramanamurty (PW. 42 ). and held the appellant guilty for conspiracy with Mohan Lal & the Doctors who verified the essentiality certificates & held the appellant guilty for the criminal conspiracy as well as for having wrongful gain by use of his official status and cheating the government by obtaining money by submitting bogus cash memos. In view of these findings, the learned Special Judge convicted the appellant for the aforesaid offences and sentenced him as stated earlier. Being dissatisfied with the conviction and sentences, the appellant has preferred this appeal in this Court. I heard Mr. R. N. Munshi, learned counsel for the appellant and Mr. M. D. Purohit, learned Public Prosecutor for the State and gave my anxious consideration to the material on record.
(3.) THE prosecution case is that the appellant had entered into a conspiracy with the Doctors for getting his bogus essentiality certificate verified without there being any body ill in his family or there being any requirements for any medicine Mohan Lal Proprietor of Prince Medical Stores, Jodhpur was also made a party to that conspiracy and 10% of the amount of the bill for his issuing cash memos without supplying the medicines was offered to him. According to Mohanlal the appellant had named Dr. S. K. Pathak, Dr. Ramdeo, Dr. B. N. Kalla, Dr. Barmera and Dr. S. L Mathur. to be the persons from whom he was in a position to get the essentiality certificates on the basis of bogus cash memos. None of these doctors have been examined by the prosecution. THE reason for not doing so and its effect on the prosecution case, will be discussed at relevant place. Suffice it for the present that the learned Special Judge has taken serious note to the prosecution not caring to bring those doctors who had signed the essentiality certificates in the witness box. THE learned Special Judge, however, did not consider these infirmities of the prosecution as damaging its case for the reason that those doctors were not at trial before him. Prosecution has examined a good number of stockists, suppliers of medicines, from whom during the course of investigation reports were obtained to show whether particular medicines were supplied by them to Prince Medical Stores at the relevant time or not. THE learned Special Judge, in view of the statement of the Approver that medicines from Jaipur and Jodhpur could be obtained without issuing cash-memos and that he also used to do the same, observed that the prosecution has wasted the time of the court in examining a large number of witnesses for that purpose. THE learned Judge, however, found the appellant guilty on the basis of the statement of Approver Mohanlal, Proprietor of Prince Medical Stores sought corroborated by Jagdish (P. W. 56) nephew of the Approver, who in his absence is said to have issued cash memos to the appellant without supplying medicines to him. Another piece of corroborative evidence that the learned Special Judge has taken into consideration is the testimony of G. V. Ramanamurty (P. W. 42) Accounts Officer in the C. B. I, who had examined the record available at the Prince Medical Stores and gave the opinion that some of the medicines in the cash memos were not in the stock of the Prince Medical Stores at the relevant date. THE appellant has admitted that he got the bills reimbursed on the basis of the cash-memos obtained from the Prince Medical Stores, but stated that he had obtained the medicines for the use of the patients mentioned in the essentiality certificates. As discussed above the testimony of the Approver corroborated by Jagdish and G. V. Ramanamurty was the only basis for the conviction by the learned Judge. The main question for determination in this appeal therefore, is whether the evidence of Mohanlal Approver inspires confidence, and if so, whether his statement is corroborated in material particulars by Jagdish and G. V. Ramanamurty. Mr. R. N. Munshi, learned counsel for the appellant has strenuously contended that relevant dates concerning the statement of Mohanlal for the purpose of seeking pardon and the circumstances leading to his statement clearly indicate that he had not given the statement voluntarily. That, it must be because of the assurance by the police that he might have agreed to be an Approver and therefore, his statement should not have been made the basis of conviction of the appellant. It has also been emphatically urged by Mr. Munshi that the statement of the Approver recorded in the Court does not inspire confidence and, therefore, no useful purpose could have been served by seeking corroboration from other witnesses. Another argument advanced by Mr. Munshi is that Jagdish being an accomplice, his testimony cannot be considered to be the corroboration by an independent witness to the statement of the Approver. Attacking the variety of the statement of G. V. Ramanamurty, the learned counsel for the appellant drew my attention to the fact that he had not referred to the record at the time of the statement at the trial, rather has based his opinion on the report sent by him to the Investigating agency and therefore, the learned counsel urged his statement is hit by section 162 of the Code of Criminal Procedure. The learned counsel for the appellant referred to a number of authorities dealing with the requirements for relying the testimony of an Approver and the type of corroboration required in such cases. ;