Bangalore District Court
Cbi/Acb/Bangalore vs Udhayakanth R.D. S/O on 31 December, 2018
IN THE COURT OF THE XVII ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE,
BANGALORE.
(SPL.COURT FOR CBI CASES)
-: Present :-
SRI. J.B. SHIVAPUJI, B.SC., LL.B. (SPL.)
XVII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BANGALORE.
C.C.NO.6379/2017
DATED : 31ST DAY OF DECEMBER, 2018
COMPLAINANT : CBI/ACB/Bangalore
// Vs //
ACCUSED: Udhayakanth R.D. S/o
Sri Dhayanithy, major,
R/at Flat No.A-204, 2nd
Floor, BDA Netravati
Apartment, Nandini
Layout, Bangalore.
JUDGMENT
This is a charge sheet submitted by the inspector of police C.B.I./ACB/Bangalore against the accused for the offences punishable u/Ss.381, 420, 468, 471 and 477A of the 2 C.C.No.6379/2017 Indian Penal Code and the accused is tried for the same.
2. The case of the prosecution in a nutshell is as here under;
The superintendent of police and head of branch, CBI/ACB/Bangalore on 07.05.2015 received a source information to the effect that the accused Udayakanth the pharmacist and Dr. Arun Udayaraj the stores manager both the public servants working at Employees State Insurance Corporation Hospital (ESIC hospital), Peenya, Bangalore during the period 2012 and 2013 entered into a criminal conspiracy with other unknown officials of the ESIC hospital and unknown private drug vendors and in pursuance of their criminal conspiracy, they violated the purchase procedure guidelines and ordered for the purchase of drugs worth of Rs.5,80,90,197/- and facilitated the private drug vendors to supply drugs which would otherwise expire and thereby caused wrongful loss to the ESIC hospital. Thereafter, as the drugs were purchased on the abnormal forecast, a large quantity of expired medicines 3 C.C.No.6379/2017 were piled up and then in order to dispose off the excess drugs and to suppress the irregularities they tried to take drugs in 22 garbage bags out of the hospital and the same was stopped by the security guards. Further, there was fabrication/altercation of prescription slips to inflate the consumption of medicines. On this information, the superintendent of police and head of branch, CBI/ACB/Bangalore on 08.05.2015 registered the case against the accused, Dr. Arun Udayaraj, unknown officials of the ESIC hospital and also against the unknown private drug vendors for the offences punishable u/Ss.120-B r/w 420, 468 and 471 of the Indian Penal Code and the substantive offences thereof and also u/Sec.13 (2) r/w 13 (1) (d) of the Prevention of Corruption Act. Sri V. Vivekananda Swamy the inspector of police took up the investigation and as he could not find the involvement of Dr. Arun Udayaraj the stores manager, any other officials of the ESIC hospital and any other drug vendors and traced out the involvement of the accused Udayakanth he in his charge sheet dropped the others and the 4 C.C.No.6379/2017 offences alleged under the Prevention of Corruption Act and filed the charge sheet only against the accused for the offences punishable u/Sec. 381, 420, 468, 471 and 477 A of the Indian Penal Code.
3. The specific case of the prosecution is that the accused Udayakanth R.D. the pharmacist and Dr. Arun Udayaraj the stores manager both were working at the ESIC hospital, Peenya and they during the period from February 2012 to October 2014 had committed certain irregularities in procurement of medicines in excess of the actual requirement of the hospital and in management of stock position in the main and sub stores of the hospital which resulted in expiry of medicines worth of Rs.27,69,293/-. The accused Udayakanth in order to show inflated consumption of medicines and to show reduced stock position fraudulently altered and made over writings in the prescriptions of medicines and accordingly, made false additional entries in the entry sheets and in the stock registers of the hospital and thereby suppressed the actual 5 C.C.No.6379/2017 stock position in the stores. Further, the accused segregated the expired and nearing expiry medicines worth of Rs.6,88,773/- and on 19.10.2014 committed theft and while he was taking medicines in 22 garbage bags he was stopped by security guards and thereby he committed the offences punishable u/Ss.381, 420, 468, 471 and 477 A of the Indian Penal Code.
4. After filing of the charge sheet, the Court took cognizance for the offences punishable u/Ss.381, 420, 468, 471 and 477A of the Indian Penal Code against the accused. The accused secured by issuing summons and he appeared through his counsel and he was enlarged on bail. The charge sheet copies along with the documents were furnished to him.
5. Heard both sides on framing of charge. Since there were prima-facie materials available on record, the charge was framed and it was read over to the accused. The accused pleaded not guilty and he claimed to be tried.
6. The prosecution side in order to substantiate its case has examined PWs.1 to 24 6 C.C.No.6379/2017 and got marked the documents Exs.P.1 to 64. The defense side has got marked the documents Ex.D-1 to 14 while cross examination of the prosecution witnesses.
7. The incriminating evidence prevailing against the accused the statement u/Sec.313 of the Cr.P.C. was recorded and read over to the accused. The accused denied the same as false. The accused did not choose to give his defense evidence. But, the accused has filed the written statement u/Sec.313 (5) of the Cr.P.C. in compliance of the statement recorded u/Sec.313 of the Cr.P.C
8. Heard the argument from both sides. Both sides have also relied on certain decisions and they have furnished them. The learned Public prosecutor and the learned counsel for the accused have filed their written arguments.
9. On the materials available on record and also on the argument advanced, the points that arise for my consideration are;
1. Whether the prosecution proves beyond reasonable doubt that the accused the pharmacist and Dr. Arun Udayaraj the stores manager both 7 C.C.No.6379/2017 working at the ESIC hospital, Peenya, Bangalore during the period from February 2012 to October 2014 committed certain irregularities in procurement of medicines in excess of actual requirement of the hospital which resulted in expiry of medicines worth of Rs.27,69,293/- and in order to inflate consumption/utilization of medicines and to show reduced stock position the accused fraudulently or dishonestly altered the patient prescription slips and made or caused to make false entries in the daily sheets and stock registers of the hospital and make use of the same as genuine and cheated the ESIC hospital causing it to omit to take action for irregularities committed and thereby committed the offences punishable u/Ss.420, 468, 471 and 477-A of the IPC ?
2. Whether the prosecution proves beyond reasonable doubt during the aforesaid place and time the accused segregated the surplus medicines worth of Rs.6,88,773/- in 22 garbage bags and on 19.10.2014 committed theft and when he tried to take the drugs out of the hospital he was caught red hand by the security guards thereby committed the offence punishable u/Sec.381 of the IPC ?
3. What order or Sentence?
8 C.C.No.6379/201710. My findings to the above framed points are as here under:
POINT NO.1 : In the Negative
POINT NO.2 : In the Negative
POINT NO.3 : As per the final
Order for the following;
:REASONS:
11. POINT NOS.1 AND 2 : The prosecution in order to substantiate these points has relied on the same set of facts. As such and also as the analysis of the facts of the case on these points are interconnected, to avoid repetition, these points are coined together for common discussion.
12. The case of the prosecution is that the CBI received a source information that the accused the pharmacist and Dr. Arun Udayaraj the in charge of stores manager both working at the ESIC hospital, Peenya hatched a conspiracy colluding with the other unknown officials of the ESIC hospital and unknown private drug vendors and in pursuance of conspiracy the accused and Dr. Aurn Udayaraj by violating the 9 C.C.No.6379/2017 purchase procedure guidelines ordered for the purchase of drugs and facilitated the private drug vendors to supply drugs which would otherwise expire and as the drugs were purchased on the abnormal forecast a large quantity of expire drugs were piled up and then in order to show inflated consumption they fabricated/altered medicine prescriptions and accordingly made additional entries in the daily entry sheets and stock registers. Further, it was the source information that in order to dispose off the excess drugs and to suppress the irregularities the drugs have been tried to take out of the hospital in the garbage bags and then they were caught red hand by the security guards. On the source information the case came to be registered and in the investigation the involvement of other except the accused could not find out and as such, now the accused is facing the trial. The specific case of the prosecution against the accused for his trial is that the accused and Dr. Arun Udayaraj the stores manager both working at the ESIC hospital, Peenya being responsible for 10 C.C.No.6379/2017 procurement of medicines during the period from February 2012 to October 2014 procured medicines in excess of the actual requirement due to failure in their management of stock position both in the main stores and sub stores and as a result, the medicines worth of Rs.27,69,293/- came to be expired. The accused in order to show inflated consumption of medicines and to show reduced stock position fraudulently altered and made overwritings in the prescriptions of medicines and accordingly made false additional entries in the entry sheets and in the stock registers of the hospital and thereafter, segregated the expire and nearing expiry medicines worth of Rs.6,88,773/- and on 19.10.2014 committed theft of the said segregated medicines and while he was taking medicines on that day in 22 bags he was stopped by the security guards.
13. So, the specific case of the prosecution is that both the accused and Dr. Arun Udayaraj committed certain irregularities while procurement of medicines. The specific case of the prosecution against the accused here is that 11 C.C.No.6379/2017 the accused fraudulently or dishonestly altered and made over writings in the medicine prescriptions and he made additional entries in the entry sheets and stock registers to make adjustment in the stock position of the hospital and committed theft the expired and nearing expiry medicines. The prosecution in order to substantiate its case has examined in total 24 witnesses PWs.1 to 24 and got marked the documents Exs.P.1 to 64. The defence side have also got marked the photos Exs.D.1 to 14 while cross examination of the prosecution witnesses. The accused has not adduced any evidences but he has filed the written statement in response to the statement recorded u/Sec.313 of the Cr.P.C. Out of the examined 24 witnesses, the prosecution has mainly examined PWs.1 to 3 the medical superintendents of the ESIC hospital, Peenya and PWs.4 to 9, PWs.12, 14 and 23 the heads of various medical departments being the members of medical scrutiny committee in short MSC and officials in key positions of the hospital to bring on record the formation of 12 C.C.No.6379/2017 MSC, its function, the procedure involved in procurement of medicines required to the hospital and as to the internal inquiry. PWs.5, 10 and 11 the doctors and PWs.16 to 18 the pharmacists have been examined to prove the alteration in the medicine prescriptions prescribed. PWs.19 to 22 the securities and other staff have been examined to prove the incident of taking medicines out of the hospital on 19.10.2014. Further PWs.7, 13, 15 and 20 have been examined regarding the incident happened in the month of December 2014 as to keeping of bags containing medicines in the basement area and as to internal inquiry conducted thereafter on this incident. P.W.24 is the investigating officer.
14. PWs.1 to 3 the medical superintendents the heads of the hospital working from the commencement of the hospital till during the course of investigation and PWs.4 to 9, 12, 14 and 23 the heads of various medical departments and the officials in key positions of the hospital mainly have been examined to establish the procedure involved in 13 C.C.No.6379/2017 procurement of medicines. The whole prosecution story rests on the irregularities committed at procurement of medicines and thereafter, committal of various offences in order to suppress the irregularities by inflating consumption of medicines. Therefore, if at first we look into the evidence of these witnesses it gives a clear picture of the establishment of the ESIC hospital, their nature of work and the way they procure medicines for requirement of the hospital.
15. P.W.1 - Sri Dr.R.Ramesh the chief medical officer of the ESIC hospital, Peenya has deposed during the course of investigation he has furnished the records viz., various correspondence proceedings, RC expiry communications, expiry circulars, invoices of different companies, purchase procedure guidelines, DG-ESIC Central rate contracts and others relating to procurement of medicines Exs.P.1 to 26. He has deposed that prior to he reporting to Peenya hospital in the month of October 2014 there were some irregularities in 14 C.C.No.6379/2017 the medical stores and due to irregularities nearly Rs.27 lakhs worth of medicines got expired and the said amount has been caused loss to the ESIC. P.W.2 - Sri Dr. Hira Lal the medical superintendent, ESIC hospital, Peenya working from August 2010 to February 2014 has deposed that when he joined the ESIC hospital, Peenya, it was under construction and on 13.02.2012 it was started functioning. He has deposed that initially they started OPD, casualty and later on, they started inpatient section and in the hospital they used to give medicines directly even to the OPD patients, casualty patients and indoor patients and initially there were few patients used to come to the hospital but thereafter, the number of patients increased even to 900 per day. He has deposed that since he was the medical superintendent he formed the medical scrutiny committee for estimation, procurement and for placement of medicines and then the heads of the major departments were the committee members and the heads of the minor departments were co - opt members assisting 15 C.C.No.6379/2017 the other core members. He has deposed that since their hospital was initially started there was no specific data available for exact estimation of the required medicines and then based on the average requirement first the estimation was done for requirement of 3 months and later 2 - 3 times the committee conducted the meetings and guided for purchase of medicines and later on, as the required data was available with store department, the store department started placement of orders for purchasing required medicines after taking concurrence from the finance department and taking approval from the medical superintendent. He has deposed that generally the scrutiny committee holds the meeting once in a year but as their hospital was newly started there were some meetings for purchase of medicines and subsequently the purchase of medicines was given to store department based on the requirement and Dr. Arun Udayaraj was working as medical specialist and he was given the charge of medical stores and the pharmacist working 16 C.C.No.6379/2017 under stores manager was responsible for all the work related to the stores department and the accused now before the court was working as pharmacist and he was one among the others. P.W.3 - Sri Dr. Ashok Kumar the medical superintendent, ESIC hospital, Peenya working from 06-03-2014 to 29-06-2016 has deposed that when he reported Dr. Arun Udayaraj was stores manager and the stores manager monitors such as procurement, consumption, maintaining the stock records and such others and he supervises all the works of the stores and the pharmacists working in the stores have to look after the distribution to patients, to OPD and to other departments and also making indents of medicines and procurement of medicines and they have also to look after the maintenance of the records pertaining to stores and the accused now before the court was working as Pharmacist and then there were nearly 6 pharmacists working in the hospital. He has deposed that the pharmacists have to distribute the medicines based on first come first go i.e., 17 C.C.No.6379/2017 they have to distribute the medicines procured at the earliest point of time to see the consumption of medicines within their shelf life and the pharmacists have to sort out the medicines and they have to intimate the stores manager as to what medicines are going about to expiry and then they have to issue the list of such about to expiry medicines to the stores manager and in turn the same be informed to the concerned department asking them to consume the said medicines within their shelf life. He has deposed that in certain circumstances if it is not possible to consume all the medicines within their shelf life then the other ESIC hospitals and dispensaries are informed and such drugs on their requirement they supplied to them and even then also if the medicines remained unconsumed it may be returned to the concerned companies asking them to replace with fresh medicines and some companies replace the fresh medicines by taking back the expired once but it is not obligatory on their part to replace fresh medicines in place of expired medicines. He has 18 C.C.No.6379/2017 deposed that even then if the medicines expired then the expired medicines have to be segregated from the rest of the medicines and their list with their respective values has to be prepared and they must be sealed and kept separately and thereafter, the same is to be intimated to the head quarters for condonation and after their condonation and after obtaining permission from them to destroy the expired medicines shall be destroyed as per biomedical waste.
16. P.W.4 - Sri Dr. Atmaram D.C. specialist grade -II, HOD surgery department, P.W.5 - Sri Dr.Babu Prasad specialist, P.W.6 - Sri. Dr. Chandrashekar Murthy Y.M. specialist grade - II, HOD OBG department, P.W.7 - Sri Vijaykumar Deputy Director administration, P.W.12 - Dr. A. Suprada specialist grade - II, pediatric department, P.W.14 - Smt. T. Shantamma deputy director finance and P.W.23
- Sri Dr. Arun Udayraj specialist grade - II medicine department all are of the ESIC hospital, Peenya have deposed that in the 19 C.C.No.6379/2017 month February 2012, the ESIC hospital, Peenya commenced its operation and then as there were no medicines, initially first set of medicines were borrowed from the ESIC hospital, Rajajinagar and thereafter, in the month of February 2012 itself the medical superintendent P.W.2 constituted the medical scrutiny committee headed by the stores manager Dr. Arun Udhay Raj and the other 4 HODs of various departments, deputy director finance Smt. Shanthamma and the HODs of other departments being co opted members. They have deposed that the accused Udhayakantha the Pharmacist was assisting the stores manager Dr. Arun Udayaraj since from formation of the medical scrutiny committee in order to help in the process of medical scrutiny committee work and also in the process of procurement of medicines. They have deposed that after formation of MSC on 25.02.2012 a first meeting was held and thereafter, till May 2012 there were meetings, but thereafter till November 2013 there were no MSC meetings for procuring medicines. They have deposed that 20 C.C.No.6379/2017 on 22.11.2013 Dr. Arun Udayaraj convened a meeting of MSC regarding recommendation for dispensing slow moving medicines as slow moving medicine were accumulated and thereafter, on 17.01.2014 a meeting was convened to discuss to avoid the local purchase of medicines and make a hospital formulary i.e., list of stock checks and previous consumption of medicines on periodical basis and again on 26.06.2014 MSC meeting was convened and in that P.W.4 raised the issue of not obtaining end user approval for local purchase of medicines and surgical and in that meeting the stores manager Dr. Arun Udayaraj expressed his inability to run the stores as there was lack of staff and lack of his experience in running the stores and after the meeting of 26.06.2014 there were regular MSC meetings convened. P.W.14 the deputy director of finance has deposed that she was one of the members of the medical scrutiny committee as she was the Dy. Director (finance) and she was present in the committee to ensure the proposals were to be within the budgetary allocation and the stores manager 21 C.C.No.6379/2017 Dr. Arun Udayaraj has prepared the final indents with the help of his assistants and after taking approval from the medical superintendent and after purchasing of medicines put up the file before the finance section then she went through the file and as there were approvals from the medical superintendent, she passed the bills for the purchase of drugs and dresses. P.W.23 - Dr. Arun Udayaraj has deposed that he was a Specialist Grade - II of the department of medicines and in addition to his regular duty he was also given the charge of stores manager and he was the stores manager from 21.02.2012 to November 2014. He has deposed that there were main stores and sub stores and again in the main stores there were two sections one for procuring medicines and another for procuring surgical instruments and Udhayakanth the accused was in charge of the main stores for procuring medicines. He has deposed that the accused Udhaykanth had to collect indents from the user departments, tabulate them and prepare the list of required medicines and first 22 C.C.No.6379/2017 that medicines required list was to put up before the stores manager and later the same was to forward to the medical superintendent for his final approval and the medical scrutiny committee was formed and it was assessing the future requirement of the medicines of the hospital and based on their assessment the medicines were to be procured. He has deposed that he was one of the members as stores manage and in the initial period the list of required medicines was prepared based on the assessment done by the medical scrutiny committee and subsequently the list of required medicines prepared based on the indents received from the user departments. He has deposed that the user departments prepare the indents based on consumption rates in their department and the pharmacist working in the main stores has to receive the indents and he has to compare the same with the stock register with him and thereafter prepare the list of medicines to be procured in the next quarter and even if the indents come from user departments for particular medicines and if 23 C.C.No.6379/2017 such medicines still are in the stock then the pharmacists should not list them in the next quarter purchase. He has deposed that since the Peenya hospital was newly established hospital they were not having any prior consumption pattern and as such, a medical scrutiny committee was formed and on their assessment medicines were procured but later as consumption patterns started available they started procuring based on the available consumption pattern rate. He has deposed that in the year 2012 - 13 nearly 20 purchase orders were put to various manufacturing companies and the list of required medicines were put before him by Udhayakanth and he went through it and recommended to the medical superintendent for his final approval and in order to cross check the list of required medicines before recommendation he ought to have upto date stock register and also update consumption register but then both of them were incomplete and as such, he could not cross check the required list before recommendation and the pharmacist working 24 C.C.No.6379/2017 as in charge of medicines had to update these registers but the accused Udhayakanth did not keep them update. He has deposed that in the month of September 2013 the pharmacists working in the pharmacy were reshuffled and then Sri Khalid pharmacist took the charge of medicines of main stores from Udhayakanth and in the month of November 2013 Sri Khalid informed that there were some medicines in the main stores that could not be consumed within their expiry period and then he informed the same to their medical superintendent Sri Hiralal and on the direction of the medical superintendent Sri Khalid prepared the list of medicines which were in excess which could not be consumed within their expiry period and put the list before the medical scrutiny committee. He has deposed that after tracing out of this incident he issued a memo to the accused Udhayakanth asking his explanation and the accused in writing replied that he was inexperienced to handle new hospital and there was over work load and as such, he could not update the registers and gave the consumption 25 C.C.No.6379/2017 rate based on approximation. P.W.8 - Sri Dr. Mahesh S.N. Insurance medical officer grade - II, P.W.9 - Dr. Rachita Biswas and P.W.12 - Dr. A. Suprada have deposed that they knew Dr. Arun Udayaraj and the accused the pharmacist and then they were also having the Addl. Charge as stores officers and then Dr. Arun Udayaraj was the store manager and Dr. Arun Udayaraj and pharmacists Udhaykanth and Khalid informed them about the presence of excess amount of drugs nearing expiry and thereafter, they informed the other departments to use the nearing expiry medicines as much as possible and corresponded with other ESIC hospitals and dispensaries asking them to procure the nearing expiry medicines from their hospital and asked the companies to replace the nearing expiry medicines.
17. The accused in his written statement filed in compliance of the statement recorded u/Sec. 313 of Cr.P.C has contended that all the pharmacists including him had to submit the indents of various medicines received from 26 C.C.No.6379/2017 various departments to the stores manager and it was the collective responsibility of all the pharmacists and the stores manager had to purchase the medicines as required by various departments after securing the approval of the medical superintendent and he had no role to play in the purchase of medicines. He has contended the MSC members had to issue a certificate at the time purchase of medicines. PWs.1 to 3 the medical superintendents and PWs.4 to 9, 12, 14 and 23 the MSC members and other officials of the ESIC hospital have deposed the procedure prescribed for procurement of medicines and the procedure fallowed in their hospital for procuring medicines. Ex.P.16 is the purchase procedure guidelines. Ex.P.16 reveals that the annual requirement of drugs and dressings required for the hospital are to be worked out by the MSC based on past consumption of 3 years and current trends etc. The evidence adduced here make out that MSC was formed as required and there were frequent meetings in the initial period after commencement of the hospital. It is 27 C.C.No.6379/2017 on record that the ESIC hospital, Peenya commenced functioning on 13.02.2012. So, it is clear that they in general have procured medicines following due procedure may be they might have bypassed certain procedure and might have committed certain irregularities in maintaining the stock register but committing irregularities in doing the assigned work without there being any criminal intent cannot be subject of criminal prosecution and as such, we need not go in detail as to the irregularities committed while procurement of medicines.
18. The medical superintendents, the medical scrutiny committee members and other officials have deposed regarding the way the medicines were purchased in their hospital. They have deposed that shelf life of medicines various from 2-3 years and in their hospital nearing expiry medicines were piled up and in the medical scrutiny committee they discussed the way how they were to be utilized. They have deposed that they asked the concerned to issue nearing expiry medicines to other ESIC 28 C.C.No.6379/2017 hospitals and dispensaries and asked the medical departments of their hospital preferably to use the nearing expiry medicines. They have deposed in case if the medicines were to be expired then they have to be disposed off on getting approval of the head quarters, ESIC, New Delhi. Ex.P.7 is the file containing the statements for handing over the expired medicines from sub stores to main stores and for asking new medicines in place of handing over expired medicines. So, it is on record that generally there are nearing expiry and expired medicines in hospitals where medicines are procured. It is the case of the prosecution that in the ESIC hospital, Peenya a large quantity of medicines was purchased and as a result, it was led to piling up of nearing expiry medicines. It is their case that the accused did not maintain the stock registers and other relevant data and on assumption he put forth the indents and due to this reason the large quantity of medicines was purchased. The prosecution has alleged that in order to suppress these irregularities the accused 29 C.C.No.6379/2017 dishonestly or fraudulently altered and made overwritings in the prescriptions and accordingly made false additional entries in the entry sheets and stock registers and on these allegations the prosecution has charge sheeted the accused for the offences punishable u/Sec. 420, 468, 471 and 477-A of the Indian Penal Code. In order to bring home the allegation of alterations in the medicine prescriptions and making false additional entries in the entry sheets and stock registers the prosecution has mainly relied on the evidence of the doctors PWs.5, 10 and 11 whose prescriptions said to have been altered and PWs.16 to 18 the pharmacists working along with the accused.
19. In this juncture, first if we may look into the evidence of P.W.18 Sri Khalid Mohamed pharmacist it gives how the piling up of nearing expiry medicines was traced out. P.W.18 has deposed that in the month of September or October 2013 reshuffling of pharmacists was took place and then he was posted to the medical main stores along with Darshan H. 30 C.C.No.6379/2017 Raju and in the month of November 2013, when he was working in the medical main stores he observed some medicines were slow moving and based on the then consumption and stock available on hand came to know that the same would not be consumed within their shelf life and they would get expired and then he brought it to the notice of the stores in charge Dr. Arun Udhay Raj and Dr. Arun Udhay Raj instructed him to prepare the list of slow moving medicines by category wise such as ointments, creams, tablets, capsules, inhalers, injections, syrups etc and accordingly, he prepared the list and then MSC meeting was called and in the meeting it was recommended to disburse the slow moving medicines to other needy ESIC hospitals and thereafter, they communicated and received indents from various hospitals through out India and disbursed around Rs.14.2 lacks worth of medicines and even after disbursing about Rs.14.2 lacks worth of medicines by the end of March 2015 still there were Rs.20 lacks worth of expired medicines in their hospital. He has deposed that generally, 31 C.C.No.6379/2017 after expiry of medicines they bring the file and present it to the medical superintend and after his approval first they intimate the supplied companies to supply new medicines in respect of expired medicines and in some cases the fresh medicines would be issued asking them to destroy the expired medicines and thereafter, by taking the approval from the medical superintendent they hand over the expired medicines to the bio medical waste within their hospital and in this case as the amount of expired medicine was very high the medical superintendent asked to take the condonation from the medical commissioner, head quarters and they intimated the medical commissioner, head quarters seeking condonation intimating the amount with list of medicines but till today they have not received any reply and as such, they have not destroyed the expired medicines and the expired medicines now have been sealed and kept separately in a sealed room marked as expired medicines not to be disbursed.
32 C.C.No.6379/201720. P.W.5 - Sri Dr. Babu Prasad has deposed that while giving treatment to patients in the OPD sections they were giving prescriptions of medicines to patients asking them to collect the prescribed medicines in the pharmacy of their hospital and they were preparing prescriptions in duplicate and the patients were submitting the original to the pharmacy centre and were collecting the medicines and they were retaining the carbon copy of the prescriptions and the pharmacy centre was retaining the originals and they maintain the register for that and Ex.P.48 are the prescriptions given by him while working at Orthopedic OPC. He has deposed that in all these prescriptions, he had prescribed Muscles Relaxant tablet Myoril in 10 quantities but in all the prescriptions it has been tampered as 60 in place of 10 and if a patient consumes more than 20 tablets, it will lead to side effects and more than 20 tablets is not beneficial to the patients and as such, normally he used to prescribe 10 tablets and in severe conditions 20 tablets and 33 C.C.No.6379/2017 the pharmacist should issue tablets in accordance with the prescription.
21. P.W.10 - Dr. Netravathi K. insurance medical officer has deposed that she was working in the department of orthopedics and she was looking after both inpatients and outpatients in OPD and Myoril tablet is a Muscle relaxant tablet and when she was working she used to prescribe Myoril tablets for patients and usually, she was prescribing 4mg or 8mg twice in a day upto for 5 days to 1 week and she has never prescribed that tablet more than 15 tablets to a patient and the 7 prescriptions of dated 01.09.2014, 02.09.2014 and 03.09.2014 marked Ex.P.52 are given by her and she has prescribed 10 tablets but they have been tampered as 60 in place of 10 and the Myoril tablets are having side effect as such they are not prescribed too much and pharmacists shall issue tablets as per prescriptions. P.W.11 - Dr. Srinivas Murthy insurance medical officer has deposed that he was working in the department of orthopedics 34 C.C.No.6379/2017 and he used to look after patients both of inpatients and outpatients and Myoril tablet is a Muscle relaxant tablet and usually, he was prescribing maximum 15 to 20 Myoril tablets for a patient and 7 prescriptions of dated 03.09.2014, 04.09.2014, 05.09.2014, 16.09.2014 and 17.09.2014 marked as Ex.P.53 have been given by him and he has prescribed 10 tablets but they have been tampered as 60 in place of 10 and Myoril tablets are having side effect as such they are not prescribed too much and pharmacists shall issue tablets as per prescriptions.
22. P.W.16 - Smt. R. P. Rohini and P.W.17
- Smt. Nitha J. P. Vimal Pharmacists have deposed that when the ESIC hospital, Peenya, started there was no sub stores and they, the accused Udhaykanth and others were working in the main stores and in the year 2013 they were posted to the sub stores. They have deposed that in the sub stores they and other pharmacists were used to disburse medicines to patients according to the prescriptions of 35 C.C.No.6379/2017 doctors and also used to enter so disbursed medicines in the stock registers and they were also used to forward the indents to the main stores based on the stock position in the sub stores and after disbursing medicines to patients they were entering the disbursed medicines first in the compilation entry sheets Exs.P.46 and 47 on daily basis. P.W.16 has deposed that Ex.P.46 (a) is the entry sheets of dated 04.08.2014 and in the first sheet at second page the accused Udhaykanth has entered new entries against medicines Bita - Histadine, Carbamzepine and Cefpotozime and likewise, in the entry sheets dated 07.08.2014, 12.08.2014 and such others there are new entries made by the accused Udhaykanth and Ex.P.29 is the stock register of tablets and in the stock register entries therein dated 04.08.2014 there is no inflated entry so for Cefpotozime tablets is concerned and the entries therein are as per entry sheets dated 04.08.2014. P.W.16 has deposed that Ex.P.47
(a) is the compiled entry sheets dated 19.09.2014 and in the said entry sheets the 36 C.C.No.6379/2017 accused has newly entered some entries against the tablets Bita - Histadine, Carbamzepine and Cefpotozime and the entries dated 19.09.2014 in the stock registers Ex.P.29 and 34 and in respect of tablets Bita - Histadine and Cefpotozime are in terms of entry sheets. P.W.16 has deposed that in the prescriptions dated 12.08.2014 marked in Ex.P.48 there are some over writings in respect of number of tablets namely Myoril prescribed by the doctors and after disbursing medicines they used to keep one copy of prescription and thereafter based on the total number of prescriptions they were entering entry sheets and thereafter, based on the entries of entry sheets the stock registers would be entered and the accused Udhaykanth used to tell them to keep separate the prescriptions pertaining to the departments of orthopedics and Dermatology. P.W.17 has deposed that she has written the entry sheets dated 05.08.2014, 08.08.2014 & 13.08.2014 in Ex.P.46 marked as Ex.P.46 (b), Ex.P.46 (c) and Ex.P.46 (d) respectively but, there are some additional entries in respect of capsule 37 C.C.No.6379/2017 Cefuroxime, Bita - Histadine, Cefpodoxime, Ointment Salobet and Bifilac sachets.
23. Exs.P.38 to 43 are the medicines prescriptions bundles and Ex.P.48, 52 and 53 are the medicines prescriptions issued by PWs.5, 10 and 11 respectively. Exs.P.46 and 47 are daily entry sheets and Exs.P.29 to 34 are the stock registers. Ex.P.58 is the CFSL report got marked on consent from the defence side. PWs.1 to 4, 6 to 9, 12, 14 and 23 the medical superintendents and the medical scrutiny committee members have not deposed anything about the alterations made in the medicines prescriptions, daily sheets and stock registers. PWs.5, 10 and 11 have deposed that their prescriptions Exs.P.48, 52 and 53 have been altered but they are not deposing who have altered the said prescriptions. The prosecution has examined PWs.16 and 17 the pharmacists and these are the only witnesses identifying the entry sheets Exs.P.46 and 47 and stock registers Exs.P.29 to 34. P.W.17 in her chief examination has deposed that there are some 38 C.C.No.6379/2017 additional entries in the entry sheets Ex.P.46 but she cannot identify in whose hand writings the additional entries have been made. P.W.16 has deposed that the accused has made some additional entries in the entry sheets. She has deposed that the entries of the stock registers are inconfermity with the entry sheets. The doctors PWs.5, 10 and 11 and the pharmacist P.W.17 are not identifying the hand writing numbers of the accused. P.W.16 is the only witness who has deposed that the hand writing numbers are of the accused Udayakanth. The investigating officer during the course of investigation has secured the specimen hand writing numbers of the accused Ex.P.61 and he has got obtained the CFSL report Ex.P.58. The forensic expert has examined the questioned writing numbers with the specimen writing numbers and he has opined that in some of the questioned writing numbers there were over writings but the authorship of the questioned writing numbers in comparison with the specimen writing numbers cannot be expressed on the basis of material on hand.
39 C.C.No.6379/201724. It is contended that nearing expiry and expired medicines were piled up in the hospital and as it was due to irresponsible work of the accused, the medicines were have to be disposed off on bringing notice of it to the higher officers and as such, in order to suppress it, the accused on 19.10.2014 committed theft of medicines and while he was taking medicines in 22 garbage bags he was stopped by the security guards. They have contended thereafter the said medicines were kept in a separate room with lock and key and the internal inquiry was conducted and thereafter, the said medicines were segregated and once again handed over nearing expiry medicines to main stores for the purpose of hospital use. For this purpose we can go through the evidence of PWs.3, 6, 7, 13, 15 and 23 the doctors and officials of the ESIC hospital, Peenya deposing as to conducting of internal inquiry and other circumstances relating to the offences of alleged theft. We can also look into the evidence of PWs.19 and 20 security guards, 40 C.C.No.6379/2017 P.W.21 house keeping staff and P.W.22 nursing orderly.
25. P.W.3 - Sri Dr. Ashok kumar the medical superintendent has deposed that in the month of October 2014 he was on training at New Delhi and then it was informed him that attempt to theft of medicines in the hospital has happened and it was informed that the accused Udhayakanth was taking out the medicines in the Garbage bags and then he caught red hand by the security personnel. He has deposed when he came from New Delhi the internal inquiry was already conducted and it was already referred to the vigilance department and at the time of internal inquiry the said drugs were seized and kept in a separate room and room was also sealed and after some time the vigilance officials came and inquired the matter and as per the instruction of the vigilance department out of the seized drugs the drugs which were already expired were separated and the remaining were taken back to the stock and they were distributed to patients. P.W.6 - Dr. 41 C.C.No.6379/2017 Chandrashekar Murthy Y.M. has deposed that in the year 2014 it was reported that the accused attempted to commit theft some of the medicines and subsequent to the incident the Dy. Director Dr. Vijay Kumar constituted an internal committee with the approval of acting in charge medical superintendent as the regular medical superintendent was on leave and he was also made as a member of the internal committee and the other HODs were also members to that internal committee and Ex.P.24 is the proceedings of the internal committee. P.W.6 has deposed that all the internal committee members once called the accused Udhaykantha, Dr. Arun Udhay Raj and few security guards and they inquired them and Udhaykantha then revealed that he tried to move the drugs out of the hospital only on the instructions of Dr. Arun Udhay Raj but Dr. Arun Udhay Raj in the inquiry stated that he did not instruct the accused to carry out the drugs out of the hospital and the security guards stated that the drugs were moving then they caught them and the 22 bags of drugs 42 C.C.No.6379/2017 which were tried to move away from the hospital were brought before the internal committee and then they seized all the drugs along with the bags and kept them in DMS room and room was sealed and Ex.P.24 (a) (I) is the list of drugs tried to move outside and thereafter they submitted report along with Ex.P.24 to the medical superintendent. P.W.6 has further deposed that after some days the officials from the vigilance department had come to their hospital and they called him and then along with him Dr. Vishwanath, Dr. Arun Udhay Raj, Dr. Sunil Kumar, Dr. Layajeeth Shyam, Dy. Director Vijay Kumar and the accused Udhaykantha were present and the officials of the vigilance department in their presence opened the sealed room and they opened the bags and took counts of the all medicines and then they prepared the proceedings Ex.P.24 (b). P.W.23 - Dr. Arun Udayaraj has deposed that on 19.10.2014 during night time around 10.30 p.m., he saw a message in his mobile from the accused that there was some problem with medicines in the pantry room and thereafter, he 43 C.C.No.6379/2017 immediately called him and then the accused informed that he was caught hold by the security while shifting medicines from the hospital and then it was kept back in the room and the same was informed to the Dy. Director Administration and on the next day he went to the hospital and on that day the regular superintendent Dr. Ashok Kumar had gone to Delhi and Dr. Roopakala was in charge of medical superintendent and that day Dr. Roopakala was in the ESIC hospital, Rajajinagar doing some operation and on that day at about 10.00 a.m., he called Dr. Ashok Kumar to inform but he did not receive his call and then Dy. Director Administration by name Sri Vijay Kumar came to hospital around 10.30 a.m., and then he was in his department and he called the other doctors including him near pantry room and they assembled there and then the inquiry was conducted by Dy. Director Sri Vijay Kumar.
26. P.W.7 - Sri Vijay kumar Deputy Director has deposed that after one or two 44 C.C.No.6379/2017 months of reporting of Dr. Ashok Kumar as Medical superintendent he was informed by the house keeping supervisor and security supervisor that some foul smell was emanating from the sewage pit just adjacent to the pharmacy centre in the basement of the hospital and thereafter, he visited the sewage pit and found that the pit was blocked because of pouring of medicines and he came to know that different medicines were being torn, diluted in the bucket and they were being flushed in that sewage pit and immediately, he reported the same to the medical superintendent Dr. Ashok Kumar. P.W.7 has deposed that on 19.10.2014 that was Sunday and he was in his home and he was informed by Sri Jagadish security supervisor that Udhayakanth pharmacist had been caught by two security personnel in the afternoon while loading 22 bags of medicines in the Maruthi Omni Van belonging to one Nagaraj nursing orderly of the hospital and then he told him to take control of the medicines and told him to put the medicines in the pantry room with locking key 45 C.C.No.6379/2017 and he also told him to inform the same to Dr. Roopakala the then in charge medical superintendent as Dr. Ashok Kumar was in Delhi on training. P.W.7 has deposed that on the next day both Jagadish security supervisor and Shivashankar house keeping supervisor reported him in writing as per Ex.P.24 (c) and
(d) as to the incident and thereafter, on the direction of Dr. Roopakala the then in charge medical superintendent he constituted a committee comprising Dr. Vishwanath Ankad, Dr. Chandrashekar Murthy, Dr. Binduraj, CMO Dr. Laijithshyam, Dr. Sunil Kumar, Ms. Indrani P.S. to Medical superintendent, office superintendent Umadevi and he himself and for that he prepared the office order and on the same day he conveyed the meeting of all the constituted members in the conference hall and steps were taken for Audio recording of the whole proceedings and later Dr. Roopakala joined the meeting and then they called Jagadish and Shivashankara the security supervisor and house keeping supervisor and other two security guards namely Babu K. and 46 C.C.No.6379/2017 R. Bhaskar and then they revealed that Udhaykanth was taking away the medicines in the afternoon of the previous day in Maruthi Van. P.W.7 has deposed that they also called Udhaykanth, Dr. Arun Udhay Raj and all other pharmacists. On inquiry Udhaykanth revealed he was taking medicines out of the hospital for the purpose of selling outside and he informed that he was taking medicines out of the hospital on the direction of Dr. Arun Udhay Raj and Dr. Ashok Kumar. He has deposed that Dr. Arun Udhay Raj revealed that Dr. Ashok Kumar was pressurizing him and it was told that all the pharmacists to take the medicines legally or illegally out side of the hospital and dispose off them by selling or destroying. He has deposed that the other pharmacists namely Khalid, Nitha, Rohini and may be one more revealed that they had been tearing, diluting and flushing the medicines in the sewage pit since 6 months and also they were taking medicines out of the hospital on the direction of Dr. Arun Udhay Raj and Dr. Ashok Kumar. P.W.7 has deposed that then they weighed all the 22 bags 47 C.C.No.6379/2017 of the medicines and noted down their weights and then he prepared the committee report and took signatures of all the committee members and thereafter, he forwarded the committee report to the chief vigilance officer, ESIC, New Delhi through a forwarding letter and Ex.P.24
(a) is the list of weighed bags. P.W.7 has deposed that after one month of his report, the south zone vigilance officer Mr. Venkateshan Dy. Director, vigilance came to their ESIC hospital and then the 22 bags of medicines were presented before him and then the whole medicines counted with specific names of medicines, batch numbers, quantity and expiry dates and Ex.P.51 is the vigilance file and Ex.P.51 (a) is the proceedings prepared at that time and on the direction of Dr. Ashok Kumar he handed over all 22 bags of medicines to Dr. Arun Udhay Raj in the presence of pharamacist Udhaykanth. P.W.7 has deposed that after few days of that incident again two more bags with full of medicines were once again found in the basement and then a committee was formed on the direction of Dr. Ashok Kumar and the 48 C.C.No.6379/2017 committee took over the control of those two bags and Ex.P.25 and 26 are the files containing notes and office memorandum and thereafter he handed over the committee report to the medical superintendent.
27. P.W.13 - Sri T.E.Venkateshan the Dy. Director (Vigilance) in the office of director, vigilance south zone, Chennai has deposed that in the month October 2014 he received a letter from the Dy. Director (Administration), ESIC hospital, Peenya regarding the alleged theft of medicines from the hospital and thereafter in the month November 2014 he visited the ESIC hospital, Peenya and conducted the vigilance investigation of the case and then he inquired all the officials concerned including the accused and recorded their statements and concluded that the accused Udhaykanth unauthorizdly attempted to shift medicines from the hospital and thereafter, he prepared the report Ex.P.54 and submitted the same to the chief vigilance officer ESIC head quarters, New Delhi recommending to initiate suitable action.
49 C.C.No.6379/201728. P.W.15 - Sri. P.N. Boipi the deputy director (finance) has deposed that in the month December 2014 two bags of medicines were found in the basement area of the hospital and then the medical superintendent formed the committee consisting of himself, Dr. Vishwanath Ankad and Dr. R. Bindu Raj to make an inquiry and then they examined the pharmacists, security supervisor and care taker of the hospital and they came to know that the bags found in the basement area were of similar to bags involved during an attempt made to commit theft and since, the said matter was with vigilance inquiry they recommended to refer the same also to the vigilance and reported the report Ex.P.26 to the medical superintendent.
29. P.W. 19 - Sri R. Bhaskar security guard has deposed that on 19.10.2014 he was deputed to duty at reception counter and at about 12.00 p.m., noon as there was some problem in his bike parked at basement parking area he went there in order to look after it and 50 C.C.No.6379/2017 then he saw a Maruthi Omni and there were 5 - 6 bags in it and after 5 - 10 minutes he returned back and while going he noticed bags were loaded fully in the said Maruthi omni van and then he suspected and called K. Babu a security guard working at gate No.2 and on inquiry K. Babu revealed that the said Maruthi omni van was belonging to nursing orderly Nagaraj and he asked K. Babu to guard the Maruthi omni van and he went to call supervisor and he came back with supervisor M. Krishnan and then there were some more bags placed even out side the Maruthi omni van and then house keeper Srinivasa, house keeper Mariyappa, security supervisor S. Pawar and pharmacist Udhaykanth along with security guard K. Babu were near the said Maruthi omni van. P.W.19 has deposed that the supervisor M. Krishnan asked Udhaykanth about the bags and Udhaykanth told that the bags were of expired medicines and they were to dispose off by taking out side the hospital and the supervisor asked about the gate pass in order to take them and then Udhaykanth told that he 51 C.C.No.6379/2017 did not have any such pass and then the supervisor told that if there was no pass they could not be allowed to take out side the hospital and thereafter, on the instructions of the supervisor all the bags once again put in the sub stores situated in the ground floor near by physiotherapy room and thereafter, it was locked and one security guard was posted to that room and there were 22 bags and on the next day a report Ex.P.24 (c) was prepared and it was submitted to the deputy director. P.W.19 has deposed that after 2 - 3 months later 3 officers of vigilance have come to the ESIC hospital, Peenya and then they inquired them and he has given statement to them. P.W.20 - Sri R. Jagadish working as security in the ESIC hospital, Peenya has deposed that on 19.10.2014 as it was Sunday he was not on duty and he was in his house and on that day at about 12.00 p.m., noon he received a call from security supervisor Shivaji Rao Pawar stating that they have found some bags which were loaded in the Maruthi omni van parked in the basement parking area and he told him to 52 C.C.No.6379/2017 check what were there in the bags and call him later and once again he called him and told that the bags were of medicines and thereafter, he intimated the same to the care taker Sri Vivek and he asked him to keep all of them in their custody and later he instructed the security supervisors Shivaji Rao Pawar and M. Krishnan who were on duty to keep all the bags in one room and seal the room and depute one security guard out side that room and on the next day it was reported both to the deputy director Sri Vijay Kumar and care taker Sri Vivek as per report Ex.P.24 (c). P.W.20 has deposed that about few months later a team of vigilance came from Chennai to their hospital and then they inquired them about to the incident. P.W.20 has deposed that in the month of December 2014 one of the supervisors from maintenance department called him and informed that 2 - 3 bags were laying in the basement pantry room and then he went and checked them but he did not open the bags and the bags were with medicines and then he brought it to the notice of the stores in charge 53 C.C.No.6379/2017 Dr. Arun Uday Raj and the medical superintendent and thereafter, the bags were taken to their custody.
30. P.W.21 - Sri M. Srinivasa house keeping staff working at the ESIC hospital, Peenya has deposed that on 19.10.2014 that was Sunday and he was on duty and on that day at about 10.30 a.m., the accused called him and asked to shift 5 black colored plastic covers to the basement area and Mariyappa the other house keeping staff was also along with him and he shifted 5 black covers to the basement area and Mariyappa shifted one black cover to the basement area and in the basement area when he checked the covers there were medicines in the covers and then the security people came there and when they inquired them they told that they were the expired medicines and as asked by Udhaykanth they have shifted the same to the basement area and after some time the security people asked them once again to place the said covers in their original place then they took them and put them in their 54 C.C.No.6379/2017 original place and on the next day their supervisor intimated the matter to the higher authority as per report Ex.P.24 (d). P.W. 22 - Sri K. M. Nagaraj, Nursing orderly working at the ESIC hospital, Peenya has deposed that he came to duty some times in bus and some times in his Maruthi Omni van bearing No. KA-02 MJ- 7321 and that on 19.10.2014 he was on duty and at about 10.30 a.m., the accused Udhaykanth contacted him and asked him that as he has to shift some bags containing kitchen items to his house he wanted his car and by saying so he took his car key and he told to take the said items to his house at the time of returning home and thereafter, at about 12.30 p.m., the security people came and informed that some luggage was loading to his Maruthi Omni van and thereafter, at about 1.30 p.m., the accused Udhaykanth returned his Maruthi Omni Van key. P.W.22 has deposed that on the same day at about 4.00 p.m., Udhaykanth called him and told that there was some problem as to shifting of medicines and he called him accompanying him to meet Sri Vijay 55 C.C.No.6379/2017 Kumar the deputy director. P.W.22 has further deposed that on the next day there was a committee meeting and in the committee meeting it was warned him that he should not give his Maruthi Omni Van to anybody thereafter.
31. The prosecution in order to prove the alleged theft has relied on the direct evidence of PWs.19 and 21. P.W.19 - has deposed on that day Sunday he was on duty and he saw a Maruthi van loaded with full of bags containing medicines and thereafter, he informed their higher officers and the medicines were taken to their custody. P.W.21 the house keeping staff has deposed that on that day on being asked by the accused he and Mariyappa the other house keeping staff shifted black covers containing medicines to the basement area. The prosecution has examined PWs.20 and 22 but their evidence is not helpful to it to bring direct evidence. The other witnesses examined have deposed after the incident the committee was formed for internal inquiry and in the internal 56 C.C.No.6379/2017 inquiry the accused admitted that he was stopped while taking medicines out of the hospital. Ex.P.24 is the office file containing the proceedings of the internal inquiry as to the incident dated 19.10.2014. The witnesses have deposed on 19.10.2014 the medicines which were caught red hand were kept in their original place and on the next day during the internal inquiry all the bags containing medicines were weighed and they were kept in a separate room. They have deposed thereafter on 26.11.2014 when the vigilance officer visited their office once again all the bags were taken out and they took the count of medicines of all the 22 bags. In Ex.P.24 i.e., in the office file of the internal inquiry proceedings there is a copy of dated 26.11.2014 for taking count of medicines of all 22 bags separately with the name of medicines, quantity, batch number and expiry date. The said list makes it clear that in 4 bags there were waste boxes and in the remaining 18 bags there were medicines of various kinds having due date for expiry varying from September 2014 to February 2015 and most of them were going to 57 C.C.No.6379/2017 be expired in the month of January 2015. So, it is clear that in the said bags as on 19.10.2015 there were both expired and nearing expiry medicines and nearing expiry medicines were more and expired medicines were negligible. The learned public prosecutor for the CBI has argued that apart from the direct evidence there is on record admitting guilt by the accused while conduting internal inquiry before the internal committee members and before the vigilance officer and the same is the extra judicial confession. The prosecution has relied Exs.P.51 and Ex.P.54 both office files for conducting the internal inquiry and the witnesses have deposed that the original records including the final report for conducting the internal inquiry have been sent to the head quarters, New Delhi. The learned counsel appearing for the accused has contended in the absence of the original the office copies Exs.P.51 and 54 cannot be taken into account being inadmissible in evidence. The learned PP and the learned counsel appearing for the accused have relied on certain decisions in 58 C.C.No.6379/2017 support of their respective stands. Exs.P.51 and 54 being not the originals they cannot be considered. The learned counsel for the accused has contended while registration of case the offence u/Sec.381 of the IPC was not included in the FIR and without there being any source information the accused later cannot be charge sheeted for it. But, the said stand holds no water and after registration of the case too when the case is registered not on the complaint of a private individual and when it is on source information the State cannot be restrained to investigate the other offences subject to limitation as contained in the code of criminal procedure. The learned counsel appearing for the accused has also contended that both the case of the prosecution and the charge framed herein contained that the accused along with Dr. Arun Udayaraj have committed the offence and as such, in the absence of Dr. Arun Udayaraj being arraigned the accused cannot be prosecuted. But, the case of the prosecution and the charge framed here so far the offences alleged point towards the accused alone 59 C.C.No.6379/2017 whereas, the accused and Dr. Arun Udayaraj have committed irregularities and in the said meaning the name of Dr. Arun Udayaraj has been taken both while narrating the prosecution case by the investigating officer and likewise this Court while framing charge.
32. The stand of the prosecution is that there were some irregularities in procurement of medicines and the accused, in order to suppress the irregularities, dishonestly or fraudulently altered and made over writings in the medicine prescriptions and made false additional entries in the entry sheet and stock registers to show inflated consumption of medicines of the hospital and thereafter, the accused segregated the expired and nearing expiry medicines and on 19.10.2014 committed theft. The definitions of theft and cheating as defined in Sections 378 and 415 of the Indian Penal Code mandates that there must be an ingredient of dishonest or fraudulent intention on the part of the accused. This case was registered on the source information that in 60 C.C.No.6379/2017 order to facilitate the private drug vendors to supply drugs which would otherwise expire the accused and others ordered for the purchase of drugs on abnormal forecast and on violation of the prescribed purchase procedure guidelines. P.W.7 the deputy director administration in his chief examination has deposed that the pharmacists working in their hospital were tearing medicines, they were being diluted in the bucket and they were being flushed in the sewage pit and thereby they were destroying the piled up expired and nearing expiry medicines. He has further deposed that while they conducted internal inquiry the accused revealed that he was taking medicines out of the hospitals for the purpose of selling outside on the direction of Dr.Arun Udayaraj the stores manager and Dr. Ashok kumar the medicial superintendent. He has further deposed that during internal inquiry Dr. Arun Udayaraj revealed that their medical superintendent Dr. Ashok kumar was pressurizing him and pharmacists to taken medicines legally or illegally out side of the hospital and they were 61 C.C.No.6379/2017 asked to dispose off them either by selling or destroying. If the case of the prosecution was as while registration of the case or medicines were took out from the hospital for the purpose of selling outside as deposed by P.W.7 it could have said that the accused had the dishonest or fraudulent intention being sine qua non for the offences both cheating and theft. More over, it is on record that even in the month of December 2014 there was incident that 2 medicine bags were lying in the basement area having medicines and then internal inquiry was conducted. Ex.P.26 is the file of the proceedings for conducting internal inquiry in respect of the incident took place in the month of December 2014. Here also they have listed the kind of medicines, their manufacturing date, batch number, expiry date and quantity. It is clear that the medicines were of bearing expiry date varies from September 2014 to February 2015. It means the medicines were of expired and nearing expiry medicines. It is on record after the incident of 19.10.2014 the accused was transferred from the ESIC hospital, Peenya to 62 C.C.No.6379/2017 the State Medical Commissioner Office, Binnipet, Bangalore and in the month of December 2014 the accused was not working in the ESIC hospital, Peenya. The witnesses have deposed that medicines are having shelf life of 2 to 3 years and their hospital commenced functioning on 13.02.2012. As such, the medicines that were tried to take out from the hospital as alleged by the prosecution might have purchased soon after commencement of the hospital.
33. The prosecution in order to prove making of fraudulent entries and committing of theft has examined the doctors PWs.5, 10 and 11 who had issued the medicine prescriptions, the pharmacists PWs.16 and 17 working along with the accused in order to identify the handwriting numbers of the accused and PWs.19 to 22 security and other staffs to prove the committing of theft. Apart from these, it has also gathered the expert opinion Ex.P.58. But, the evidence on record gathered from these witnesses fails to connect the accused to the 63 C.C.No.6379/2017 criminal acts of making of fraudulent entries and committing of theft beyond reasonable doubt. The prosecution to fasten criminal liability for the offences of cheating and forgery first has to prove the criminal intent on the part of the accused. But, in view of the reasons assigned in the above paras, the prosecution fails to prove what would be the motive, what would be the criminal intent of the accused in order to commit these offences and what would be the benefit i.e. dishonest intention for his overt and covert acts. Therefore, I am of the opinion that the prosecution has failed to prove the alleged offences of cheating, making of fraudulent documents, committing of theft and other consequence offences arising out of committing cheating beyond reasonable doubt. Accordingly, the point Nos.1 and 2 are answered in the Negative.
34. POINT NO.3: In view of the reasons assigned to the Point Nos.1 & 2, I proceed to pass the following;
64 C.C.No.6379/2017ORDER The accused is not found guilty and he is acquitted under Section 248(1) of the Cr.P.C. for the offences punishable u/Ss.381, 420, 468, 471 and 477 A of the Indian Penal Code.
The bail bond and surety executed by the accused and his surety shall remain in force for 6 months and the accused shall appear before the Appellate Court if he receives summons in case of preferring any appeal against this judgment.
[Dictated to the Stenographer directly on the computer, computerized by her, corrected and pronounced by me in the open Court on this the 31st day of December, 2018.] [J.B. SHIVAPUJI] XVII ADDL.CHIEF METROPOLITAN MAGISTRATE, BANGALORE.
65 C.C.No.6379/2017-: ANNEXURE :-
I. LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:-
P.W.1 : Sri Dr. R. Ramesha P.W.2 : Sri Dr. Hira Lal P.W.3 : Sri Dr. Ashok Kumar P.W.4 : Dr. Atmaram D. C. P.W.5 : Dr. Babu Prasad P.W.6 : Dr. Chandrashekar Murthy Y.M. P.W.7 : Sri Vijay Kumar P.W.8 : Sri Dr. Mahesh Kumar S.N. P.W.9 : Dr. Rachita Biswas P.W.10 : Dr. Nethravathi K. P.W.11 : Dr. Srinivas Murthy P.W.12 : Dr. A. Suprada P.W.13 : Sri. T. E. Venkatesan P.W.14 : Smt. T. Shantamma P.W.15 : Sri. P. N. Boipi P.W.16 : Smt. R. P. Rohini P.W.17 : Smt. Nita J. P. Vimal P.W.18 : Sri. Khalid Mohammed P.W.19 : Sri. R. Bhaskar P.W.20 : Sri. R. Jagadish 66 C.C.No.6379/2017 P.W.21 : Sri. M. Srinivasa P.W.22 : Sri. K. M. Nagaraj P.W.23 : Sri Dr. Arun Udayraj P.W.24 : Sri V. Vivekanandaswamy II. LIST OF WITNESSES EXAMINED FOR THE DEFENCE:-
- NIL -
III. DOCUMENTS EXHIBITED ON BEHALF OF THE PROSECUTION:-
Ex.P.1 : Seizure memo
Ex.P.2 : Covering Letter
Ex.P.3 : File for purchasing of
drugs/medicines during the
year 2012 and 2013.
Ex.P.4 & 5 : Meetings of medical scrutiny committee to form recommendations for slow moving medicines and list of nearing expiry medicines.
Ex.P.6 : Nearing expiry medicines Communications.
Ex.P.7 : Monthwise details for returning of expire medicines starting from March 2014 to till date submitted from sub stores to main stores.67 C.C.No.6379/2017
Ex.P.8 : Under taking letters issued by pharmaceutical companies.
Ex.P.9 & : Communications made with 10 Head Quarters.
Ex.P.11 : Circulars showing list of nearing expiry medicines and acknowledgements.
Ex.P.12 : Correspondences made with the pharmaceutical companies.
Ex.P.13 : Invoices Ex.P.14 : Seizure Memo Ex.P.15 : Covering Letter Ex.P.16 : Purchase procedure guidelines
Ex.P.17 to : Central Rate Contracts 20 Ex.P.21 : File containing tender proceedings Ex.P.22 : Pharmacy circulars and communications.
Ex.P.23 & : Files as to proceedings 24 regarding the incident dated 19.10.2014 the alleged theft.
Ex.P.25 & : Report received an inquiry 26 conducted regarding the incident shifting of medicines dated 09.12.2014.
68 C.C.No.6379/2017Ex.P.27 : Out patient statistics from February 2012 to December 2012.
Ex.P.28 : Receipt Memo for handing over 6 stock Registers.
Ex.P.29 to : 6 Stock registers 34 Ex.P.35 & : Correspondences 36 Ex.P.37 : Receipt memo for handing over 6 prescription bundles.
Ex.P.38 to : 6 prescription bundles 43 Ex.P.44 : Attendance sheet Ex.P.45 : Receipt Memo for handing over 2 daily issued extract sheets.
Ex.P.46 & : Daily issued extract sheets 47 Ex.P.48 : 11 Prescriptions issued by P.W.5 Ex.P.49 & : CD and its transcription 50 Ex.P.51 : Vigilance file with copy of vigilance report.
69 C.C.No.6379/2017Ex.P.52 : 7 prescriptions issued by P.W.10.
Ex.P.53 : 7 prescriptions issued by P.W.11.
Ex.P.54 : Office copy of vigilance file Ex.P.55 & : Production memo and certified 56 copy of purchase procedure guidelines.
Ex.P.57 : Reply given by the accused Ex.P.58 : CFSL report marked on consent.
Ex.P.59 : FIR Ex.P.60 : Search list and inventory
Ex.P.61 to : Specimen numbers given by the 63 accused and communications made with CFSL.
Ex.P.64 : Copy of purchase procedure guidelines.
IV. LIST OF DOCUMENTS EXHIBITED FOR DEFENCE:-
Ex.D.1 to 14 : Photos 70 C.C.No.6379/2017 V. LIST OF MATERIAL OBJECTS MARKED FOR THE PROSECUTION:-
-NIL-
VI. LIST OF MATERIAL OBJECTS MARKED FOR THE DEFENCE:-
-NIL-
XVII A.C.M.M., BANGALORE.