Bangalore District Court
Dr. Veeresh vs The State Of Karnataka By on 29 May, 2023
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Crl.A.No.2648/2019
KABC010391012019
IN THE COURT OF THE LX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU
(CCH-61)
Dated this the 29th day of May, 2023
:Present:
Sri Narashimsa M.V., B.Com.,
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Crl. A. No. 2648/2019
APPELLANT Dr. Veeresh
S/o Balappa Pattanashetty
Aged about 70 years,
R/at No. 438, Saraswathii Nagar,
Vijayanagar,
Bangalore - 40
(Rep by ACK- Adv)
VS.
RESPONDENT The State of Karnataka by
K P Agrahara Police Station,
Bangalore District
(Rep by Public Prosecutor)
JUDGMENT
This Appeal is preferred u/S 374(3) of Cr.P.C by accused in in CC No.4197/2016 on the file of XXX ACMM, Bengaluru (K.P. Agrahara Police Station Crime No. 127/2015). Appellant/accused has been convicted by the learned Magistrate for the offence punishable u/S 19-A of Karnataka private Medical Establishment 2 Crl.A.No.2648/2019 Act, 2007, vide Judgment and order of sentence dated 10.12.2019.
2. Brief facts of the case are as under :
Dr. Ranjan, District Health and Family Welfare Officer, Bengaluru (Urban) District and her colleagues visited Lakshmi Clinic run/maintained by Appellant/accused in 5th Cross, Magadi Road, Bengaluru. Upon receipt of information from public that without registration clinic was being run.
3. Visit/raid has carried out on 20.7.2015 at 3.30 pm. First informant and her staff found that appellant/accused has displayed the board as Lakshmi Clinic, Dr. Veeresh, MBBS, MD. Upon enquiry, it was learnt that appellant/accused had MBBS degree only, but MD was displayed in the name board. It also came to the knowledge of first informant that appellant/accused has not registered under Karnataka (Private) Medical Establishment Act. Thus, seeking legal action u/S 19-A of the Act. First information came to be lodged in K.P. Agrahara Police Station, it was registered as Crime No. 127/2015 for the offence punishable under Karnataka.
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4. Appellant/accused was granted anticipatory bail in Crl. Misc No. 4973/2015, appellant appeared before the Investigating Officer.
5. Investigating Officer recorded statement of witnesses, collected documents from Karnataka Medical Council, District Health Office, upon being satisfied that appellant/accused has committed an offence punishale u/S 468, 471, 420 of IPC, Section 3, 10 and 19 of Karnataka Private Medical Establishment Act 2007, filed charge sheet against appellant/accused on 5.10.2015.
6. Learned Magistrate took cognizance of the offence punishable u/S 468, 471, 420 of IPC and Section 3, 10 and 19 of Karnataka Private Medical Establishment Act 2007. Criminal Case was registered, summons were issued to appellant/accused, he appeared before the learned Magistrate, filed application u/S 437 of Cr.P.C, copy of charge sheet and its annexures were furnished to accused in compliance of Section 207 of Cr.P.C. Appellant/accused filed application u/S 239 of Cr.P.C, public prosecutor filed objections. Said application was dismissed vide orders dated 3.9.2018.
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Crl.A.No.2648/2019
7. Prosecution examined 7 witnesses as PW1 to 7, through them, Ex.P1 to P5 came to be marked. The incriminating evidence that had appeared against accused was put to him u/S 313 of Cr.P.C., appellant/accused denied the entire evidence, appellant/accused has not led defence evidence nor had produced any documents before the Trial Court.
8. After hearing arguments of both sides, learned Magistrate vide Judgment dated 10.12.2019 has acquitted appellant/accused for the offence punishable u/S 468, 471, 420 of IPC, has convicted appellant/accused for the offence punishable u/S 19-A of Karnataka Private Medical Establishments Act 2007 has sentenced appellant to undergo simple imprisonment for one year and to pay fine of Rs.10,000/-, in default appellant/accused has been sentenced to undergo further imprisonment for 30 days.
9. Being aggrieved by the aforesaid Judgment and order of sentence, appellant/accused has preferred this appeal u/S 374(3) of Cr.P.C and has urged the following grounds:
(a) That the judgment of convictions and sentence passed by the Court below are opposed to law, facts and probabilities of 5 Crl.A.No.2648/2019 the case and gravely erred in convicting the appellant for offences u/S 19-A of KPME Act 2007.
(b) That the trial Court has erred in not appreciating the contradictions of prosecution witness and trial Court has not at all considered the cross examination of the witnesses before passing judgment.
(c) Viewing from any angle, Court below is not justified in holding the appellants guilty of the offences with which they are convicted and sentencing them to varying imprisonments.
(c) That the appellant is more than 70 years old man and suffering from lot of old aged ill healths and there is no one also hears with in this appellant. Hence, prayed for allowing the appeal.
10. Along with this appeal, appellant filed application under Sec 389(1) of Cr.P.C. for staying the Operation of Judgment of Trial Court in CC No. 4197/2016.
11. Vide orders dated 21.12.2019 operation of impugned judgment and order of sentence was stayed, subject to deposit of 6 Crl.A.No.2648/2019 fine amount before trial Court. Trial court records have been received.
12. Perusal of the order sheet of trial Court discloses that on 2.1.2020 appellant has deposited Rs.10,000/- before Trial Court. Notice was issued to respondent/State, learned public prosecutor represented respondent.
13. Appellant/accused filed memo with 6 documents,.
14. Heard arguments of learned advocate for appellant/accused and learned public prosecutor.
15. The points that arise for my consideration are:-
(1) Whether the trial Court has rightly appreciated the evidence on record in so far as offence punishable u/S 3, 10 and 19 of Karnataka Private Medical Establishment Act is concerned?
(2) Whether the impugned judgment of conviction is sustainable ?
(3) What Order ?
16. My findings to the above points are as follows:
Point No. 1 : In the Negative.
Point No. 2 : In the Negative.
Point No. 3 : As per final Order for the following: 7
Crl.A.No.2648/2019 REASONS
17. Point Nos. 1 and 2 :- Since these two points are inter related they are taken up together for common discussion, in order to avoid repetition of facts.
18. It is to be noted that charges were framed against accused for the offence punishable u/S 468, 471 of IPC.
19. Learned Magistrate has framed points for consideration in so far as offence punishable u/S 460, 468, 471, 420 of IPC is concerned.
20. Learned Magistrate has acquitted appellant/accused for the offence punishable u/S 468, 471 and 420 of IPC. State has not preferred any appeal, in so far as acquittal of appellant/accused for the aforesaid offences punishable u/S 468, 471 and 420 of IPC, said portion of the impugned judgment has has attained finality.
21. Allegations against appellant/accused is that during inspection, it was found that appellant/accused had not registered as a Private Medical Establishment as required u/S 3 of the Act. Ex.P4 collected by Investigating officer from Karnaaka Medical 8 Crl.A.No.2648/2019 Council discloses that appellant/accused is registered under Karnataka Medical Council with registration No.16186 on 22.3.1978 and his qualification is MBBS only. Ex.P5 issued by the District Health & Family Welfare Officer, Bengaluru Urban District dated 29.10.2015 discloses that appellant/accused has not registered himself under Karnataka Private Medical Establishments Act as on 29.10.2015.
22. Section 3 of the Karnataka Private Medical Establishments Act is as under:
"3. Registration of Private Medical Establishments - On and after the appointed day, no Private Medical Establishment shall be established, run or maintained in the State except under and in accordance with the terms and conditions of registration granted under this Act:
Provided that a Private Medical Establishment in existence immediately prior to the appointed day shall apply for such registration within ninety days from the appointed day and pending orders thereon may continue to run or maintain till the disposal of he application".9
Crl.A.No.2648/2019
23. From the reading of Section 3, it clearly appears that Private Medical Establishments in existence prior to 16.8.2007, (date of commencement of appointed date for KPME Act) shall apply for registration within 90 days from 16.8.2007. Section 7 of K P M E Act deals with the procedure to be followed by registration authority upon receipt of application.
24. Section 8 of the Act is as under:
"8. Local Inspection Committee: (1) The Registration Authority of each district may constitute one or more Local Inspection Committee for each district consisting of such persons as it may specify for the purposes specified in sub-section (1) of Section 7 and sub-section (2) of this section.
25. Sub Section 4 is as under:
(4) The Manager of the Private Medical Establishment shall provide all reasonable facilities for such inspection.
26. Section 10 of K P M E Act is extracted below:
"10. Schedule of charges to be notified. - (1) Every Private Medical Establishment shall for the information of the patients and 10 Crl.A.No.2648/2019 general public make available the schedule of charges payable for different medical treatment and other services, in the form of brochures or booklets and shall also display such schedule of charges on the notice board of the Private Medical Establishment. A copy of such brochure or booklet shall be sent to the Registration Authority.
(2) No Private Medical Establishment shall collect from the patient or his relatives or attendants any amount in excess of the charges printed in the brochure or booklet, and without issuing proper receipt for the amount charged and collected.
27. Section 19 of Private Medical Establishment Act is as under:
"19. Penalties.- (1) Where any person establishes, runs or maintains a Private Medical Establishment without registration granted under Section 7 he shall, on conviction, be punished with imprisonment for a term which may extend to three years and with fine which may extend upto ten thousand rupees.
(2) When a person is convicted under sub-section (1), the Registration Authority shall direct immediate closure of the un- 11
Crl.A.No.2648/2019 registered Private Medical Establishment, except where a registration is cancelled or suspended and an appeal filed against such cancellation or suspension is pending.
(3) Every order made under sub-section (1) shall contain a direction that the inpatients of such unregistered Private Medical Establishment shall be transferred to such other Private Medical Establishment as may be specified in that order and it shall also contain such other provisions as to the care and custody of such inpatients pending such transfer.
(4) Where any person runs or maintains a Private Medical Establishment in contravention of the conditions of registration or contravenes the provisions of section 12 or 13, or fails to comply with the direction issued under sub-section (2). he shall, on conviction, be punished with imprisonment for a term which may extend to six months and with a fine which may extend to two thousand rupees and in the case of a second or subsequent offence with imprisonment for a term which may extend to one year and with a fine which may extend to five thousand rupees. 12
Crl.A.No.2648/2019 (5) Where a person contravenes any other provision of this Act or the rules made thereunder he shall, on conviction, be punishable with a fine which may extend to five thousand rupees.
28. Evidence of PW1, 2, 3 and 4 who were official witnesses and part of the raiding team is common and similar, all of them have deposed that the degree certificate was not displayed in the Clinic run by appellant/accused
29. PW1 to 4 have deposed that when questioned, copy of MBBS degree certificate was furnished by appellant/accused, but appellant /accused left the Clinic by stating that he would produce the MD degree certificate, but did not return to Clinic. Thereafter, panchanama was conducted vide Ex.P1. PW2 has filed complaint before jurisdictional police. Vide Ex.P3 FIR came to be registered. Pw1 to 4 are official witnesses, they do not have any personal enmity or grudge of whatsoever nature against appellant/accused, whatever was observed by them during raid/inspection is deposed by them before the Court. The raid/inspection was carried out on 20.7.2015.
30. It is to be noted that Section 19 of K.P.M.E Act provides for punishment. Section 19-A has been inserted in the principal 13 Crl.A.No.2648/2019 Act, w.e.f, 4.4.2019, such observation has been made by learned Magistrate in the impugned Judgment. Section 19-A prescribes that cognizance of an offence under K P M E Act shall not be taken except on a written complaint by Registration and Grievances Redressal Authority or any officer authorized in this behalf by Registration and Grievances Redressal Authority. Learned Magistrate has relied upon the decision of Hon'ble High Court of Calcutta in AIR 1961 Cal 560 and Hon'ble Supreme Court of India reported in the case of Hindra Vishna Thakur Vs. State of Maharashtra reported in AIR 1994 SC 2623 and has come to the conclusion in para No. 28 of impugned judgment as under:
"By following aforesaid principles, I am of the opinion that,Sec.19-A of the Karnataka Private Medical Establishment Act, 2007 is not applicable to the case on hand.
31. Further, in later part of para No.28 of impugned judgment, learned Magistrate has come to a conclusion that, prosecution has categorically proved the guilt of accused beyond reasonable doubt, that accused has committed an offence punishable U/s.19-a of Karnataka Private Medical Establishment Act, 2007."
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32. Section 19-A does not deal about any offence. It is necessary to note that Section 19 of K P M E Act is a punishing section for contravention of the other provisions of the Act. Punishment prescribed u/S 19 of K P M E Act as it stood prior to 4.4.2019, pertains to violation of Section 7, 12, 13 and any provisions of the Act."
33. It is necessary to note that the learned Magistrate has not discussed as to how the ingredients of Sections 3 and 10 of K P M E Act are established by the prosecution. Reading of Sections, 7, 5, 6 makes it clear that the registration authority can reject the application only after providing opportunity of being heard, it has to assign reason for rejection. Further reading of Section 8(3) of K P M E Act makes it clear that reasonable time to rectify the defect should be provided. Perusal of the documents produced before learned Magistrate discloses that spot mahazar was conducted by PW2, thereafter, she has filed a complaint before police. Non registration of a Private Medical Establishment by appellant/accused as required u/S 3 came to the knowledge of PW2/ First informant upon inspection made u/S 8(2) of K P M E Act. As per Section 8(3) reasonable time for rectifying defect needs to be given u/S 8(3) of the Act, no document is produced to show that such reasonable time was given. Despite of which 15 Crl.A.No.2648/2019 appellant/accused has subsequently applied for registration under Karnataka Private Medical Establishment Act, subsequently has been granted, registration under K P M E Act.
34. The procedure contemplated under the Karnataka Private Medical Establishment Act is not followed by PW2/complainant in the absence of providing reasonable time for rectification of defects to appellant/accused it cannot be construed that appellant/accused has violated Section 3 and 10 of K.P.M.E Act. This being the circumstances, learned Magistrate has committed an error in coming to the conclusion that appellant/accused has committed an offence punishable u/S 19-A of K P M E Act. Hence, I answer points No.1 and 2 in the Negative.
35. Point No. 3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:-
ORDER Appeal filed by Appellant under Sec. 374 (3) of Cr.P.C. is hereby allowed.
Impugned judgment passed by the learned XXX Addl. Chief Metropolitan Magistrate, Bengaluru, in CC No.4197/2016 dated 10.12.2019 is set aside, 16 Crl.A.No.2648/2019 Appellant/accused is acquitted for the offence punishable u/S 3, 10, 19 of Karnataka Private Medical Establishment Act Fine amount deposited by appellant/accused is ordered to be refunded to appellant/accused.
Send back Trial Court records.
(Dictated to Stenographer, transcribed and typed by him, thereafter corrected and then pronounced by me in open court on this the 29 th day of May, 2023).
(Narashimsa.M.V.) LX Addl.City Civil & Sessions Judge, Bengaluru.