Delhi District Court
State vs . Raj Kumar Navalkha C.C No.532355/2016 on 22 September, 2018
State Vs. Raj Kumar Navalkha C.C No.532355/2016
IN THE COURT OF MS. KIRAN BANSAL, SPECIAL JUDGE07 (CENTRAL),
(PC ACT CASES OF ACB, GNCTD), DELHI
CC No. (22/11) 532311/2016
ID No. 02401R0342422007)
CNR No. DLCT010004422007
State
Versus
1.Dr. Raj Kumar Navalkha (Ex. M.S. LNJP Hospital) S/o Sh. Keshari Chand R/o CII/31, Tilak Lane, Tilak Marg, New Delhi.
At present: R/o E1, Staff Flats, T.P. College Campus, 31, S.M. Marg, Civil Lines, Delhi.
2. Dimple Budhiraja S/o Sh. K.L. Budhiraja C/o Dimple Surgical & Scientific Instrument Mfg. Co.
Shop No.197576/1920 Katra Luchho Singh, Narain Bazar, Bhagirath Palace, New Delhi.
At present: R/o Flat No.15, Godawari Apartment Alaknanda, Kalkaji, New Delhi - 110019.
FIR No : 41/2003
U/s : 7/8/13 POC Act R/w Section 120B IPC
P.S. : Anti Corruption Branch
Date of Institution on : 03.04.2007
Order reserved on : 29.08.2018
Order delivered on : 22.09.2018
Pages: 1 of 52 (Kiran Bansal)
Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016
J U D G E M E N T
1. The short issue involved in the present case is whether procuring an article i.e. (epicutaneon Cave Catheter Neocath (foreign) Vygon Product Code 218400) in excess of demand (requisition by a department) by the Medical Superintendent of a government hospital would amount to criminal misconduct. Though, large scale irregularities were pointed out by the Audit Team in the audit report, in respect of the purchases made in LNJP Hospital w.e.f. 01.01.2002, but the prosecution has restricted the present case to the purchase of epicutaneon cave catheter neocath as otherwise it seems that the investigation would have been an endless exercise.
2. Brief facts of the case as revealed from the charge sheet are that a complaint was filed by the Inspector Roshan Lal, ACB to the Duty Officer of the ACB stating that a reliable information relating to large scale malpractices and financial irregularities in the procurement and purchase made in the LNJP Hospital was received through a secret source. It is stated that on the basis of information, a Special Audit was ordered by Directorate of Vigilance in LNJP Hospital, GNCT of Delhi, the special audit regarding purchases made w.e.f. 01.01.2002 onwards was taken up w.e.f. 13.01.2003 under the supervision of Sh. A.P. Joshi, IAO. The audit was concluded on 04.04.2003 and a copy of the audit report dated 06.06.2003 was received in the ACB. It is further mentioned that on perusal of the special audit report and on the basis of the inquiry conducted into the allegation, following facts were established:
(i) Catheters amounting to Rs.35,55,000/ were purchased in excess. Pediatric department had demanded only 200 nos. of Catheters. Due to a clerical error this demand was shown as 2000. Later HOD Pediatric Department communicated this mistake and required a corrigendum to be issued. But, instead of a corrigendum, the communication regarding clerical error was withdrawn. Hence 1800 Catheters at the @ of Rs.1975/ Pages: 2 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 amounting to Rs.35,55,000/ were purchased in excess of the genuine demand of 200 Catheters.
(ii) Out of a total nos. of 830 Catheters used during the period under check, 560 Catheters have been shown consumed in four days w.e.f. 17.01.2003 to 20.01.2003 i.e. soon after the commencement of the audit on 13.01.2003.
(iii) Starch bandage was procured @ of Rs.216.50 per dozen, whereas the rate approved by Central Procurement Agency was Rs.40.50 per dozen. The approved rate was ignored, consequently huge loss of govt. money was caused.
(iv) Items have been purchased at the hospital tender rates. It is noticed that there is a marked difference in the rates of these items in the Central Procurement Agency, Dte. Of Health Services GNCT of Delhi for the year 20022003 and the hospital tender rates. The variation in rates resulted in excess payment to the tune of Rs.7,40,798/.
(v) Items to the tune of Rs.1,64,29,540/ were purchased which were either not consumed or consumed in little quantity which resulted in over stocking and infructuous expenditure.
(vi) The expenditure under materials and supplies increased whereas under the machinery equipment, it decreased by a large margin.
Items worth Rs.45,56,112/ are lying intact in the store and these items have not been utilized after procurement.
(vi) Items has been consumed in excess in comparison to previous years. The sudden rise in consumption pattern is beyond comprehension.
(vii) Drugs and injections worth Rs.2.10 lacs have expired which were neither consumed before expiry nor replaced resulting in misutilization of funds.
(viii) In most of the cases, the files related to purchases of various items have not been shown to the account functionaries.
(ix) The stock registers have not been properly maintained which had made the physical checking of the stores and stock balances meaningless.
3. It is stated that public servants posted in LNJP Hospital and certain traders who were engaged in the process of procurement and purchase of various medicine, items, goods and consumables for LNJP Hospital hatched a criminal conspiracy for their personal wrongful gains and caused a huge loss of government money. On the basis of this complaint, the present FIR was lodged.
Pages: 3 of 52 (Kiran Bansal)
Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016
4. During investigation, stock register related files, expenditure statements etc were seized. The role of the M.S. Medical Incharge was also investigated. It was also revealed during investigation, that a letter was sent by Dr. Sarin, HOD Pediatric Department, wherein he stated that he had demanded only 200 Catheters. In pursuance to the letter of Dr. Y.K. Sarin, HOD, Pediatric Department, a meeting was called by accused no.1 on 19.07.2002. In the meeting, Dr. Sarin, Dimple Budhiraja, Dr. K.S. Sachdeva, Dr. S.K. Agarwal etc. were also present. It is stated that Dr. R.K. Navalkha, M.S., misused his powers and pressurized Dr. Sarin that he should place order of 2000 Catheters and not 200 Catheters and overruled the objections of Dr. Sarin. It is stated that Dr. R.K. Navalkha, M.S., LNJP Hospital placed an order of 2000 Catheters @ of Rs.1975/ per piece [EpicureanCave Catheter Neocath (Foreign) Vygon Product Code 218400 Tax Paid]. It is stated that the above order for 2000 Epicurean Cave Catheters was placed with the supplier Dimple Budhiraja as the supplier Dimple Budhiraja was in conspiracy with Dr. R.K. Navalkha. It is stated that Dr. Dimple Budhiraja had purchased 2000 Catheters @ Rs.1414.40 per piece from Vgon Indian Pvt. Ltd., Chirag Delhi for total amount of Rs.22,63,136/ on 19.08.2002. He supplied the same to LNJP Hospital for a sum of Rs.39,50,000/ and the net profit of Dr. Dimple Budhiraja was Rs.16,86,864/ (i.e. Rs. 39,50,000 - Rs. 22,63,136 = Rs.16,86,864/).
5. During investigation, accused no.1 was arrested and was granted bail by the concerned court. Accused no.1 is stated to have retired at the time of filing of the chargesheet. It is stated that the copy of minutes of meeting dated 19.07.2002 could not be found and therefore, could not be procured. Thereafter, as minutes of meeting dated 19.07.2002 was not available, a meeting was called on 30.08.2006. It is further stated that Dr. K.S. Sachdeva and Dr. S.K. Aggarwal, Dimple Budhiraja, the then M.S. Dr. V.K. Ramtake told that on 19.07.2002, Dr. R.K. Navalkha the then M.S. despite objection letter by Dr. Sarin had placed the order of 2000 catheters on 19.07.2002 and Dr. Sarin was made to withdraw his letter and it was also stated that the remaining 1800 catheters would be used by other Pages: 4 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 departments. During investigation, it was also found that Dr. R.K. Navalkha due to ulterior motive had placed the said order of 2000 catheters to "Dimple Surgical & Scientific Instrument Mfg. Co." and Dimple Budhiraja earned a profit of Rs.16,86,864/ and all this would not be possible without the conspiracy between Dr. R.K. Navalkha and Dimple Budhiraja. It is further alleged that Dr. R.K. Navalkha in conspiracy with Dr. Dimple Budhiraja had caused loss to the government. As it was found that accused no.2 had shown profits in his income tax return and in his bank accounts, he was not arrested and his name was placed in Column4 in the chargesheet. After filing of the chargesheet, cognizance under Section 13(1)(d) of Prevention of Corruption Act, 1988 and Section 120B of IPC was taken against the accused Raj Kumar Navalkha and Dimple Budhiraja. Thereafter, both the accused persons were summoned. Copy of the chargesheet in compliance of the Section 207 Cr.P.C. was supplied. Thereafter, charge was framed against the accused Raj Kumar Navalkha under Section 120B IPC r/w Section 7/13 of Prevention of Corruption Act, 1988, under Section 7 of Prevention of Corruption Act, 1988 and 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 and charge under Section 120B IPC r/w Section 8 of Prevention of Corruption Act, 1988 and Section 8 of Prevention of Corruption Act, 1988 was framed against the accused Dimple Budhiraja. Thereafter, prosecution has examined 13 witnesses in all to prove their case.
6. PW1 Sh. S.C. Khulbe, Deputy Controller Accounts has deposed that in the year 2003, he was posted at Directorate of Audit GNCT of Delhi as Inspection Audit Officer (IAO) and was having field duty for the conduct of Audit in various departments. He has further deposed that he had instructions from the Finance Department GNCT of Delhi and conducted a special audit of purchase made in LNJP Hospital, GNCT of Delhi w.e.f. 01.01.2002 onwards and an Audit headed by Sh. A.P. Joshi, IAO was organised w.e.f. 13.01.2003 and PW1 alongwith Sh. V.K. Kural, AAO; Sh. Sunder Lal, AAO; Sh. Gupal Singh, JAO and Sh. C.L. Sahni, Senior Accountant were also members of the parties. It is further stated that Pages: 5 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 special audit continued for 54 days and was concluded on 04.04.2003 and interim report was also given during the special audit and after the conclusion of the audit, a final audit report was given. The interim report was exhibited as Ex.PW1/A and the final audit report was exhibited as Ex.PW1/B.
7. PW2 Sh.A.P. Joshi, Inspecting Audit Officer (IAO) has deposed that in the year 2003, he was posted at Directorate of Audit GNCT of Delhi as Inspection Audit Officer (IAO) and on the instructions of Finance Department GNCT of Delhi, a special audit of purchases made in LNJP Hospital, GNCT of Delhi w.e.f. 01.01.2002 onwards was taken up. Remaining testimony of PW2 is on similar lines as stated by the PW1 and is not reproduced herein for the sake of brevity. He has also proved the interim report Ex.PW1/A and final audit report Ex.PW 1/B and he has further deposed that during the audit large scale financial irregularities were detected w.e.f. 01.01.2002 and the same have been pointed out in the audit reports.
8. PW3 Sh. V.P. Gupta, retired Deputy Secretary, Finance has deposed that from September 1999 to August 2005, he was working as Deputy Secretary, Finance (Accounts), GNCT of Delhi and Principal Secretary, Finance was the Administrative Secretary of the audit department. He has further deposed that some files of the audit department were required to be shown to the Principal Secretary, Finance and were being routed through him. PW3 further deposed that during the year 2003, a special audit was done with regard to the purchase made by LNJP Hospital and a special audit team was deputed by Principal Secretary, Finance for the same. It is further deposed that the audit report submitted by audit party were routed through him and submitted to the Principal Secretary, Finance/Chief Secretary and the audit reports were sent to the Health Department i.e. Administrative Department of LNJP Hospital, Delhi on the approval of the Principle Secretary, Finance/Chief Secretary. He further deposed that as per the letter dated 06.06.2003 Ex.PW3/A, the photocopies of interim report Ex.PW 1/A and final report Ex.PW1/B were sent to the Additional Commissioner of Pages: 6 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 Police, Anti Corruption Branch, Delhi in reference to their letter No.2154/SO/ACB dated 08.05.2003. It is further stated that original audit report was with the Directorate of Audit, Delhi Secretariat. PW3 further deposed that he had sent photocopies of both the reports to the AntiCorruption Branch alongwith his forwarding letter Ex.PW3/A. During the testimony of PW1, PW2 and PW3, the original interim report and the original final audit report were produced by Sh. H.R. Naugin, Assistant Accounts Officer of Directorate of Audit.
9. PW4 Dr. Vinod Kumar Ramtake, Director Professor and HOD of Surgery in LNJP Hospital, Delhi deposed that on 01.09.2006, he was posted as M.S. in Lok Nayak Jai Prakash Hospital (LNJP Hospital) and a meeting was held on 30.08.2006 in connection with the utilisation of the supply. The meeting is stated to have held as per the directions of the court. PW4 was the Head/Chairman of the meeting and other members were Dr. M.S. Chopra; Sh. Bihari Lal, DCA; Sh. J.P. Sharma, Sr. AO and Dr. Arun Goel, MO and other doctors had also joined the meeting. The minutes of meeting were approved as Ex.PW4/A and they were sent to the court vide covering letter Ex.PW4/B.
10. PW5 Dr. S.K. Aggarwal has deposed that he was posted in LNJP Hospital as Professor of Pediatric Surgery on 30.08.2006. The meeting was held in the Chairmanship of Dr. V.K. Ramtake and members who attended the meeting are mentioned in the minutes of meeting Ex.PW4/A and he had also signed the minutes of meeting.
11. PW6 Dr. Anubha has deposed that she had examined the accused no.1 on 20.04.2005 vide MLC No. 2977/05, Ex.PW6/A when she was posted at Aruna Asaf Ali Hospital as Casuality Medical Officer.
12. PW7 Dr. Y.K. Sarin, Head of Pediatric Surgery, Maulana Azad Medical College and Associated with LNJP Hospital, Delhi deposed that on 27.06.2002, he had placed indents of 23 items to the Purchase Officer of LNJP Hospital and each item was indented on separate sheet. He had indented 200 pieces of epicutaneon cave catheter (Vygon Product Code 2184) and the indent form in respect of it is Pages: 7 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 Ex.PW7/A. He further deposed that he had overlooked to write the amount i.e. quantity in words and on 05.07.2002 i.e. Saturday at around 01:00 PM, he was informed that few copies of orders to suppliers by M.S. LNJP Hospital had arrived on 04.07.2002 at 04:00 PM and the same would be shown to him. The copy of order Ex.PW7/B was placed before him bearing signature of Dr. R.K. Navalkha. He has further deposed that on going through the copies of orders placed before him, he found some discrepancies in as much as instead of 200 pieces, 2000 epicutaneon cave catheter neocath were being ordered. He further deposed that one more item solid synthetic testis (surgiwear code No.101) was priced at Rs.9,500/ per piece which was ten times the MRP of the item and these inconsistencies/clerical error were brought to the knowledge of Medical Superintendent through his letter dated 08.07.2002 i.e. Ex.PW7/C. He had stated that he has sent letter to the M.S. i.e. accused no.1 and on 12.07.2002, PW7 received a letter Ex.PW7/D from Sh. K.S. Sachdeva, Purchase Officer, LNJP Hospital, Delhi stating that there were no inconsistencies or clerical error in purchase order. Alongwith the letter Ex.PW7/D, he had received an enclosure Ex.PW7/E and after seeing Ex.PW7/E, he noted that one 'zero' had been added after 200 making it 2000. He further deposed that he personally met Dr. K.S. Sachdeva but Dr. K.S. Sachdeva was evasive and replied that he had sent the letter Ex.PW7/E at the behest of Dr. R.K. Navalkha I.e. accused no.1. He further stated that on 17.07.2002, he had received Ex.PW7/F from the then Medical Superintendent calling a meeting in response to his letter dated 08.07.2002 and a meeting was held on 19.07.2002 at 04:00 PM in the office of the then Medical Superintendent where in Dr. R.K. Navalkha, Dr. K.S. Sachdeva, Dr. S.K. Aggarwal and supplier Sh. Dimple Budhiraja were present. He further deposed that at the very outset Dr. R.K. Navalkha mentioned that the supplier has accepted some error on his part and quoted Rs.9,500/ as price of box of 10 solid synthetic testis pieces and therefore, the previous order in this regard has been cancelled and a fresh order seeking box of 10 pieces at the price of Rs.9,500/ has been issued.
Pages: 8 of 52 (Kiran Bansal)
Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016
PW7 further deposed that when he asked as to why the same should not be done regarding the epicutaneon cave catheter neocath so as to curtail the order to 200 pieces as desired by the PW7 in his indent, Dr. R.K. Navalkha refused to accept the suggestion of PW7 Dr. Y.K. Sarin and Dr. Y.K. Sarin was told that his department would be asked to indent only 200 pieces of epicutaneon cave catheter neocath and as this is a common item, it could be used in other department and the other 1800 pieces would be used in other departments. PW7 has stated that he agreed to this proposal following which Dr. R.K. Navalkha pressurized him to withdraw his representation dated 08.07.2002 and dictated him to write "in the meeting held in MS Office the matter has been reviewed and the above letter is withdrawn". PW7 has further stated that he was not aware about any comments that Dr. R.K. Navalkha might have put on the letter. The minutes of meeting were never circulated nor he has given copy of fresh order of solid synthetic testis which was placed after cancelling of order dated 04.07.2002. It is further stated that portion 'Y' on the letter Ex.PW7/G was not written in his presence by Dr. R.K. Navalkha. He further stated that during investigation he dictated his statement to his PA and handed over the same to Inspector Roshan Lal and the said statement is Ex.PW7/H.
13. PW8 is Dr. K.S. Sachdeva who has deposed that on 15.09.2003, he was working as Purchase Officer at LNJP Hospital, Delhi and on the request of Inspector Roshan Lal, P.S. AntiCorruption Branch, he had provided him the record vide letter Ex.PW8/A as the said record was under his supervision. He further deposed that he had provided 26 Files from Srl. No.1 to 26 and 14 Stock Registers from Srl. No.27 to 40 and the said record had been seized vide Seizure Memo Ex.PW 8/B. The 26 Files were exhibited as Ex.PW8/1 to Ex.PW8/26 and 14 Stock registers were exhibited as Ex.PW8/27 to Ex.PW8/40. He further deposed that job of purchase officer was assigned to him in April 2002 and as a purchase officer his duty was to receive indents from various departments alongwith specifications of the items and thereafter tender documents were finalized to invite Pages: 9 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 bids. The bids were in three stages; first is a prerequisite qualification, second is technical qualification and third is the financial bid. The bids of all the bidders who quote against invitation to bid are screened for prerequisite qualifications and then, the technical bid of the persons who qualify in the prerequisite qualification is evaluated by the technical committee. The technical committee then makes its recommendations to the competent authority and in this case competent authority was the accused R.K. Navalkha, the then M.S., the bidder whose bid is responsive with the technical criteria are evaluated for the financial bid. The financial bids are collated and put up to financial evaluation committee for approval. The purchase committee then approves the overall responsive bids and one of the bidders as the lowest one is identified. The indent of each department is then processed and put up to competent authority for approval. The competent authority then calls for a meeting of the purchase committee who finally approves the indents. The purchase orders for quantity of each item as approved are placed on the vendors by the Medical Superintendent. He further deposed that earlier practice was that the purchase order were issued at the level of the purchase officer but the same was changed prior to his assuming the duties, by the accused R.K. Navalkha. He has further deposed that Dr. Y.K. Sarin had written a letter Ex.PW7/G to the M.S. Dr. R.K. Navalkha about reduction of the order placed for epicutaneon cave catheter neocath in the month of July 2002. Then the accused had instructed PW8 to send a reply Ex.PW7/D to Dr. Y.K. Sarin. He has further deposed that meeting of the committee comprises of Dr. Y.K. Sarin, Dr. S.K. Aggarwal, accused no.1 Dr. R.K. Navalkha and accused no.2 Dimple Budhiraja and the Purchase Officer i.e. PW8 was called in the office of M.S. wherein issue i.e. Whether to reduce the purchase of epicutaneon cave catheter neocath from 2000 to 200 was discussed. Dr. Sarin insisted that he required only 200 epicutaneon cave catheter neocath, however, it was impressed upon him by the accused no.1, the then M.S., Dr. R.K. Navalkha, that Dr. Sarin would not be asked to use more than 200 epicutaneon cave catheters neocath and Pages: 10 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 the rest could be used by other departments. Thereafter, Dr. Sarin withdrew his letter and endorsed it on the body of the letter itself. He further deposed that the vendor Dimple Budhiraja also agreed that the price of silicon solid synthetic testis has been wrongly typed as Rs. 9,500/ each whereas the same was the price of a pack of ten pieces. PW8 further deposed that M.S. accepted and endorsed on the body of the letter for a revised order to be issued. Further with regard to epicutaneon cave catheter neocath, the M.S. endorsed on the body of the letter itself that "in view of the above, the order for the item epicutaneon cave catheter for 2000 pieces stands. Regarding silicon testis, the supplier's representation is accepted and revised order issued today". During cross examination by the Ld. Addl. PP for the State, PW8 stated that Dr. Y.K. Sarin, Paediatric Surgery was asking for purchase of 200 epicutaneon cave catheter neocath and was stressing that he had sent the demand for purchase of 200 pieces only. He also admitted that there was no requirement from any other department of Lok Nayak Hospital to purchase epicutaneon cave catheter neocath through the purchase committee can enhance or reduce he requirement. He further deposed that the accused in this case was keen on purchasing 2000 number of epicutaneon cave catheter neocath though only 200 were required and that the accused was purchasing the item deliberately for his personal reason. He further deposed that the accused had introduced the condition that no purchase order was to be valid if it has not been signed by M.S.
14. PW9 Inspector Satya Prakash deposed that he was posted as Duty Officer at P.S. AntiCorruption Branch on 07.08.2003 and on the same day Inspector Roshan Lal produced a rukka before him and he had recorded the FIR. Carbon copy of the rukka is Ex.PW9/A. He further deposed that he had made his marking on rukka as Ex.PW9/B.
15. PW10 Smt. Ishwari, W/o Sh. Chander Mohan has deposed that she was posted in Food & Supply Department on 20.04.2005 and on that date she had performed her duties as panch witness in the AntiCorruption Branch and that accused R.K. Pages: 11 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 Naulakah was arrested vide arrest memo Ex.PW10/A and his personal search memo is Ex.PW10/B.
16. PW11 Inspector Surender Kumar is also a witness to the arrest of the accused no.1. He further deposed that accused R.K. Navalkha was arrested vide arrest memo Ex.PW10/A and his personal search was conducted vide Ex.PW10/B.
17. PW12 Sh. Bhagwan Singh Dahiya (Retd. ACP, Delhi Police) has deposed that in the year 2007 he was posted in the AntiCorruption Branch as Inspector and further investigation of the case was marked to him. After that he had gone through the file and prepared a chargesheet and submitted the same before the court.
18. PW13 Sh. Roshan Lal (Retd. Inspector) has deposed that in the year 2003 he was posted as Inspector in P.S. AntiCorruption Branch and received various complaints from unknown sources regarding financial irregularities committed by Dr. R.K. Navalkha, who was working as Medical Superintendent in Maulana Azad Medical College and Hospital (MAM College & Hospital). He further deposed that he had sent these complaints to Delhi Government Audit Department for enquiry and analysis for the allegations levelled against Dr. R.K. Navalkha. Consequently an interim report was received vide letter Ex.PW3/A from the Audit Department through Sh. V.P. Gupta, the then Deputy Secretary, Delhi Government. The interim report alongwith annexures are already Ex.PW1/B. He further deposed that on the basis of Audit Report and its annexures, he had prepared a tehrir Ex.PW13/A and got registered FIR Ex.PW9/A. He further deposed that after registration of the case, he had examined Dr. K.S. Sachdeva, the then Purchase Officer of MAM College and Dr. Y.K. Sarin. Dr. Y.K. Sarin had also given him a written complaint already Ex.PW7/H. He further deposed that he had also examined Sh. V.P. Gupta, Sh. A.P. Joshi, the then Auditor and his staff who worked with him on the Audit Report. He seized the records from Dr. K.S. Sachdeva vide seizure memo already Ex.PW8/B inclusive of 40 items. He further seized the record vide seizure memo already Ex.PW8/DH which mentions 6 (Six) Pages: 12 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 items. He further deposed that during investigation, he had called Dr. R.K. Navalkha (accused no.1) and interrogated and had arrested him vide arrest memo already Ex.PW10/A. He further stated that he was thereafter, transferred from P.S. AntiCorruption Branch, however stated that he can identify the records seized by him during investigation. He further stated that the files and documents seized by him were handed over to S.O. Branch in AntiCorruption Branch for further handing the same to Inspector Hari Chand. He further stated that after the arrest of accused R.K. Navalkha, investigation was handed over to some other official as he was transferred from AntiCorruption Branch.
19. The prosecution, thereafter, closed its evidence.
20. The statement of accused Raj Kumar Naulakah was thereafter recorded under Section 313 of Code of Criminal Procedure (in short 'Cr.P.C'), wherein accused denied all the allegations of prosecution witnesses and stated that he was innocent. He further stated that he has never met Sh. Dimple Budhiraja in personal capacity. He further stated that interim report as well as final audit report are false and fabricated documents and Sh. V.K. Kural, Sh. S.C. Khulbe and Sh. Sunder Lal were not appointed in the team to conduct audit, and also, no proper audit was conducted. He further stated that Minutes of Meeting Ex.PW4/A is also a false and fabricated document. He further stated that Dr. Y.K. Sarin had sent indent of 39 items vide Ex.PW7/DC1 to Ex.PW7/DC39, however, he had sent the indent for the purchase of 2000 catheter of code 2184 vide indent Ex.PW7/DC38 and not for the purchase of 200 catheters. He further stated that photocopy of indent Ex.PW7/A is a false and fabricated document. He further stated that synthetic testis (surgiwear code no.101) priced at Rs.9,500/ per piece i.e. about 10 times of the MRP of the item was a typographical error which was rectified on 19.07.2002 in the meeting attended by Dr.Y.K. Sarin alongwith other members including Dimple Budhiraja. He further stated that he has not received the letter dated 08.07.2002 i.e. Ex.PW7/C. He further stated that letter Ex.PW7/D dated 12.07.2002 is a matter or record and there was no addition of zero at all and so far Pages: 13 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 as the meeting of Dr. Sarin with Dr. Sachdeva is concerned, he has no knowledge. He again stated that he had not instructed Dr. Sachdeva to write any letter to Dr. Sarin and Dr. Sachdeva being Purchase Officer at the relevant time sent the reply on the basis of the material available on record and clarified to Dr. Sarin that the demand was made for purchase of 2000 catheter which was duly received by the purchase officer. Dr. Sachdeva further informed Dr. Sarin that the requisition form was filled up in the handwriting of Dr. Sarin asking for 2000 (two thousand) catheters duly signed and stamped. He further stated that, thereafter, Purchase Committee approved the same quantity and there is no inconsistency or clerical mistake, however, the order could not have been changed. He further stated that he had called the meeting on 19.07.2002 at 04:00 pm which was attended by himself, Dr. K.S. Sachdeva, Dr. S.K. Aggarwal, Dr. Y.K. Sarin and Sh. Dimple Budhiraja and in that meeting, a correction was made regarding the solid synthetic testis pieces. He further stated that Dr. Y.K. Sarin never asked him why the order for the catheter could not be changed or that he refused the said request as no request was made. He further stated that Dr. Y.K. Sarin voluntarily withdrew the letter dated 08.07.2002 in the presence of all the participants and made endorsement in his own handwriting that "in the meeting held in the MS Office the matter has been reviewed and the above letter is withdrawn". He has not made any assurance for use of 1800 pieces to other department. He further stated that there was no inducement for the withdrawal of the said letter and that he had made the endorsement portion 'Y' on Ex.PW7/G in the presence of all the members including Dr. Sarin then and there in the meeting itself. He further stated that PortionY of the letter was written by himself in the presence of Dr. Sarin and the other members and after that all the members put their signatures next to the endorsement after verifying and satisfying with the contents of the same. Proceedings of meeting dated 19.07.2002 were recorded on the body of the letter dated 08.07.2002 of Dr. Sarin in the presence of all the members. He denied that Dr. Y.K. Sarin asked him why the same order for the catheter should not be Pages: 14 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 changed and he refused the said request. He further stated that he has never impressed upon Dr. Y.K. Sarin that rest of the catheters could be used by the other departments. He further stated that a false chargesheet was filed against him despite there being no material for his prosecution. He further stated that he has no knowledge whether a complaint was sent to Delhi Government, Audit Department for enquiry and analysis. He further stated that the important documents favourable to him were deliberately withheld by the investigating and prosecution agency and the witness from the hospital wanted him to be removed from the post of Medical Superintendent and make Dr. Ramtake as Medical Superintendent, however, all the witnesses made false statements. He further stated that he has been falsely implicated in this case despite the fact that he has not committed anything wrong nor he has taken any decision personally and all the decisions pertaining to the purchase were taken by the Purchase Committee well represented by senior doctors and financial authorities of the hospital like Dy. Controller of Accounts and Senior Accounts Officer of LNJP Hospital. He further stated that the purchases were initiated by publication of NIT and processing of the tender started and carried out by various committees constituted by his predecessor Dr. Bharat Singh, however, there was no illegality in the purchase.
21. The statement of accused Dimple Budhiraja was thereafter recorded under Section 313 of Code of Criminal Procedure (in short 'Cr.P.C'), wherein accused denied all the allegations of prosecution witnesses and stated that he was innocent. He admitted that a meeting was called and he attended the same, however, denied that he had not supplied the goods as per the terms and conditions of the hospital open tender. He further stated that a false chargesheet was filed despite there being no material for his prosecution. He further stated that he is innocent and has been falsely implicated in this case. He further stated that there was a set procedure for supplying the goods to any hospital and an open tender was floated by the concerned authorities and his bid was found to be the lowest one, as such the tender was awarded to him and accordingly he supplied the goods as per the order Pages: 15 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 and terms and conditions of the tender. He denied the allegations of conspiracy with anybody.
22. Both the accused Raj Kumar Navalkha and Dimple Budhiraja did not lead any defence evidence in their favour.
23. Arguments have been addressed by the Ld. Addl. PP for the State as well as Sh.P.K. Dubey and Sh. Rashid Hashmi, Ld. Counsels on behalf of both the accused persons. Written arguments also filed on behalf of the accused no.1 Raj Kumar Navalkha, which have also been perused alongwith the case including evidence and documents.
24. Ld. Addl. PP for the State submitted that PW7 Y.K. Sarin, Head of the Paediatric Department, LNJP Hospital has categorically deposed that he had indented 200 pieces of Epicutaneon Cave Catheter Neo Cath vide indent form Ex.PW7/A and on knowing the discrepancies about the quantity of the same in the purchase order which was placed to supplier, he wrote a letter Ex.PW7/C addressed to accused R.K. Navalkha then Medical Superintendent. Dr. K.S. Sachdeva, Purchase Officer (PW8) had informed on behalf of M.S. vide letter Ex.PW7/D that there was no inconsistency or clerical error in purchase order. PW7 has further deposed that one "zero" has been added after 200 for making it 2000. On 17.07.2002, he received a letter Ex.PW7/F from M.S. vide which a meeting was called on 19.07.2002 and in the said meeting accused no.2 Dimple Budhiraja was also present. Accused R.K. Navalkha refused to reduce the quantity of Epicutaneon Cave Catheter Neocath and it was told by him that paediatric department would be asked to indent only 200 pieces and as this is common item that could be used in other department as well, the other 1800 pieces would be issued to other department. At the insistence of the accused R.K. Navalkha, PW7 Dr. Yogesh Sarin, Head of the Department agreed to withdraw his representation dated 08.07.2002 and accused R.K. Navalkha dictated him to write in meeting that the matter has been reviewed and above letter is withdrawn. While, there was no indent from any other department except paediatric department, moreover this Pages: 16 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 item was to be indented for the first time and the indent of the 200 pieces of Epicutaneon Cave Catheter Neo Cath was sent by paediatric department for use of one quarter only.
25. It is further argued by Ld. Addl. PP for the State that prosecution case is not for the offence of forgery for which it has to be proved that who made the forgery in the indent order, rather it is the case of criminal misconduct under Section 13 of Prevention of Corruption Act, 1988 caused by accused R.K. Navalkha in connivance with coaccused Dimple Budhiraja. Gravamen of the offence in the present case is that whether accused abused his power and acted in public interest or not as mentioned under Section 13 (1)(d) of Prevention of Corruption Act, 1988. Original indent order has not been provided by the hospital authority for investigation in the present case but it does not affect the prosecution case because original of the same is not in the possession of the prosecution and nor prosecution has concealed the production of the same. Contents of the documents can be proved by the primary document as well as the secondary evidence. Moreover, in the present case, accused R.K. Navalkha has relied on one photocopy document i.e. Ex.PW7/DC38 bearing quantity of 2000 pieces of Epicutaneon Cave Catheter Neo Cath. It is clearly visible in the indent order that one "zero" has been added after digit 200.
26. It is further argued by Ld. Addl. PP for the State that accused R.K. Navalkha has connived with coaccused Dimple Budhiraja and has abused his power and acted against the public interest and thereby caused huge loss to government exchequer and obtained pecuniary advantage for coaccused Dimple Budhiraja. It is also argued that total 830 catheters out of 2000 were shown used during the period under check by the audit team, 560 catheters have been shown consumed in the four days w.e.f. 17.01.2003 to 20.01.2003 soon after the commencement of the audit on 13.01.2003.
27. It is further argued by Ld. Addl. PP for the State that audit has been conducted by the Special team comprising officers of the audit department of the Govt. of NCT Pages: 17 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 of Delhi who have expertise in the field of audit and the report has been based upon the documents which were provided to team and there is no discrepancies / contradictions in the audit report and there is no requirement of certificate under Section 65B of Indian Evidence Act to enable audit report to be admissible in evidence and the audit report can be the basis for the conviction of the accused.
28. It is further argued by Ld. Addl. PP for the State that accused R.K. Navalkha was not in service at the time when cognizance was taken in the present case. In the present case, charge under Section 120B IPC r/w Section 7/13 of Prevention of Corruption Act, 1988 has also been framed against both accused persons and no prosecution sanction under Section 197 of Cr.P.C. is required for the offences of conspiracy of criminal misconduct.
29. Arguments of the defence shall be dealt with hereinafter one by one :
(i) Accused not named in the FIR :
Ld. Defence counsel has argued that the FIR Ex.PW9/A was registered on 07.08.2003 against unknown officials of LNJP Hospital on the basis of a secret information, pursuant to an audit being conducted by officials of GNCTD and the accused persons Dr. R.K. Navalkha and Dimple Budhiraja are not named in the said FIR.
30. This argument of the Ld. Defence counsel is not valid as it is a settled law that the FIR is not required to be an encyclopedia of the entire facts and need not contain the minutest details as to how the offence had taken place nor it is required to contain the names of the offenders or witnesses. Moreover, the purpose of investigation is to find out as to whether any offence has been committed and if yes, then to establish the identity of the offenders and therefore, it is not necessary that name of each and every accused would be mentioned in the FIR.
(ii) Audit - Whether conducted :
31. Ld. Defence counsel has further argued that mere submissions of Interim Audit Report or Final Audit Report alone does not prove the fact that the audit was actually conducted. It is argued that the reports are undated. It is further argued Pages: 18 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 that the factum of audit having been actually conducted is to be proved by the prosecution by adducing evidence such as audit notings, copies of notices given for requisition of records and statements recorded by the audit team but the prosecution in the present case has not adduced any such independent evidence.
32. As far as, arguments that the report is undated is concerned, the final report Ex.PW1/B clearly mentions that the audit was concluded on 04.04.2003 and the audit was taken up w.e.f. 13.01.2003. The audit report also clearly mentions that audit work was carried out on 54 working days. In view of the fact that the report mentions that audit was concluded on 04.04.2003 after 54 working days, this argument that the report is undated does not survive. The report further mentions that stock register, purchase files etc. have been scrutinized. The final report is running into forty pages and 14 paras. The fourteen paras in the final audit report are as under: Para1 : Purchase of Epicutaneon Cave Catheter.
Para2 : Non Issue of Stores.
Para3 : Improper Issue of Stores.
Para4 : Excess Consumption of Stores in 200203.
Para5 : Excess Procurement in 200203.
Para6 : Non Utilisation of Stores.
Para7 : Purchase of Starch Bandage.
Para8 : Less Expenditure incurred for the purchase of machinery and equipment in comparison to material supplies.
Para9 : Files not shown to the Account Functionaries. Para10: Omission in stock balances.
Para11: Purchase made at higher rates to the tune of Rs. 7,46,798.00. Para12: Irregular purchase.
Para13: Overstocking of Disinfectants/lotions.
Para14: Expiry of Drugs / Injections worth Rs.2.10 lakhs approx.
33. Perusal of the Final Audit Report Ex.PW1/B shows that the same is based on the Pages: 19 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 facts and figures and not on any presumption or assumptions. The document Ex.PW13/D1 (also Ex.PW2/DX)also establishes that the special audit of all the purchases from LNJP Hospital from 01.01.2002 onwards was directed and it was further directed to the concerned authorities to provide all the relevant record of purchases and extend full cooperation to the audit party. This document Ex.PW13/D1 has been signed by Sh. A.K. Nathani, Senior Accounts Officer, Headquarters and is addressed to the Medical Superintendent, LNJP Hospital. Perusal of the final audit report Ex.PW1/B reveals that the same could not have been prepared unless the relevant records are thoroughly scrutinized by the audit team. The report also mentions clearly that stock worth Rs.45,56,112/ are lying in the stores intact and have not been utilized. It further mentions that non utilization of the items requires justification. Thirty one items have been mentioned alongwith price of unutilized items and such an elaborate report could not have been prepared unless the stock registers and the purchase files have been scrutinized and therefore, the arguments of the Ld. Counsel that the prosecution has failed to prove that the audit was actually conducted, does not survive.
(iii) Audit Report - whether conclusive in nature :
34. The Ld. Defence counsel has argued that the audit report is not conclusive in nature and in any case does not fasten any liability on the accused R.K. Navalkha. It is further argued that no definite opinions have been given in the Audit Report and the terminology used in the Audit Report is "seems to be". Special Audit Report made in Lok Nayak Hospital is Ex.PW1/B and the relevant portion of the Audit Report as regards epicutaneon cave catheter neocath is reproduced as below: "Introduction : The special audit of purchases made in Lok Nayak Hospital, GNCT Delhi w.e.f. 1102 onwards was taken up w.e.f. 13103 under the supervision of Shri A.P. Joshi, I.A.O. Other members of the audit parties were Shri S.C. KhulbeI.A.O., Shri V.K. KuralA.A.O, Shri Sunder LalA.A.O., Shri Gopal SinghJ.A.O. and Shri Pages: 20 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 C.L. SahaniSr. Acctt.. The audit was concluded on 4.4.2003 (54 working days).
Report :
The records like stock registers, purchase files etc. have been scrutinized and irregularities noticed are elaborated as under: Para 1 : Purchase of Epicutaneon Cave Catheter The scrutiny of file and stock register of Hospital reveal that Epicutaneon Cave Catheter have been purchased in excess and the consumption shown also seems to be on higher side. The perusal of file reveal that requirement of Pediatric Deptt. was for 200 catheters where as 2000 catheters @ Rs. 1975/ have been procured. The communication sent by pediatric department clearly reveal that H.O.D. had mentioned that due to clerical mistake 2000 has been shown whereas the requirement is of 200 as such necessary corrigendum may be issued. The Deptt. Instead of issuing the corrigendum convened a meeting on 197 2002 where in the H.O.D. pediatric mentioned that the letter communicating the clerical error is withdrawn (copy enclosed). The department accordingly placed order for 2000 catheters costing Rs.39,50,000/ whereas the requirement was for 200 x 1975 = 3,95,000/. Thus catheters amounting to Rs.35,55,000/ have been procured in excess. The stock register reveal clearly that 830 catheters have been used in 4 & 1/2 months and out of 830 catheters, 560 catheters have been shown as consumed in 4 days i.e. w.e.f. 17103 to 20103."
35. Perusal of the above extract of the final audit report shows that the words "seems to be" is only regarding the consumption of the epecutaneon cave catheters. As far as purchase of the said catheters is concerned, the report is clear and unambiguous and categorically mentions that catheters amounting to Rs.35,55,000/ have been procured in excess. As far as liability of the accused no.
1 is concerned, being the head of the institution it was his duty to observe high standards of financial propriety. He was also expected to exercise the same vigilance in respect of expenditure incurred from public money as a person of Pages: 21 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 ordinary prudence would exercise in respect of expenditure of his own money. Accused no. 1 was also under a duty to ensure that the expenditure incurred is prima facie not more than the occasion demands and is incurred in public interest.
(iv) Authorization of Sh. S.C. Khulbe, Sh. Sunder Lal and Sh. V.K. Kural by the Directorate of Audit GNCTD :
36. It is further argued that Sh. S.C. Khulbe, Sh. Sunder Lal and Sh. V.K. Kural were never authorised or directed by the directorate of Audit, GNCT Delhi to conduct any audit as the order of the Directorate of Audit Ex.PW2/DX (Also Ex.PW13/D1) does not contain the name of the aforesaid persons. It is also argued that the Interim Audit Report and Final Audit Report does not bear their signatures and no documents have been produced by the prosecution to show that either of them ever went to conduct any audit.
37. The relevant portions of testimony of PW1 and PW2 are reproduced as below :
Testimony of PW1 Sh. S.C. Khulbe :
"In the year 2003 I was posted at Directorate of Audit GNCT of Delhi, Forth Level, CWing, Delhi Sachivalaya as Inspection Audit Officer (IAO) and I was having field duty for the conduct of Audit in various departments. On the instructions of Finance Department GNCT of Delhi a special audit of purchases made in LNJP Hospital, GNCT of Delhi w.e.f. 01.01.2002 onwards was taken up for one year and an Audit headed by Sh. A.P. Joshi, IAO was organised w.e.f. 13.01.2003 and I alongwith Sh. V.K. Kural, AAO, Sh. Sunder Lal, AAO, Sh. Gupal Singh, JAO and Sh. C.L. Sahni, Senior Accountant were the other members of the audit party. This special audit continued for 54 working days and was concluded on 04.04.2003............"
"...........It is correct that the Audit in the abovestated Hospital was conducted as per the direct order of Principal Secretary (Finance) Government of NCT of Delhi. I do not know about the detailed of the said order. I do not remember if any specific order was passed by Principal Secretary (Finance) Government Pages: 22 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 of NCT of Delhi authorizing me to conduct the Audit in the present case (Vol. Without order I cannot conduct the Audit). The Principal Secretary (Finance) Government of NCT of Delhi might have issued order whereby authorizing me to conduct the audit relating to the present case otherwise I could not have handled the same..........."
"..............I do not remember if I was induced in the said Audit Team from the very beginning or afterwards..........."
".............. It is wrong to suggest that I had not conducted any Audit in this case and that is why I am unable to respond the queries in this respect............."
Testimony of PW2 Sh. A.P. Joshi :
".............. On the instructions of Finance Department GNCT of Delhi a special audit of purchases made in LNJP Hospital, GNCT of Delhi w.e.f. 01.01.2002 onwards was taken up for one year and an Audit headed by me was organized w.e.f. 13.01.2003 and I alongwith S.C. Khulbe Accounts Officer, Sh. V.K. Kural, AAO, Sh. Sunder Lal, AAO, Sh. Gupal Singh, JAO and Sh. C.L. Sahni, Senior Accountant were the other members of the audit party............."
"..............I had conducted the special Audit as per the direction of the Head Quarter.............."
..............Initially I alongwith Sh. Gopal Singh, Junior Accounts Officer and Sh. C.L. Sahni, Senior Accountant were assigned for conducting the special audit in LNJP Hospital. Vol. After some days another team headed by Sh. S.C. Khulbe, Accounts Officer alongwith Sh. V.K. Kural, Assistant Accounts Officer and Sh. Sunder Lal, Assistant Accounts Officer were also joined in the team for conducting the special audit by the Order of Directorate of Audit. I do not remember the designation of the Officer concerned who passed the order in this respect. It is wrong to suggest that my assignment for conducing the special audit in this case was not passed by the Directorate of Audit.
My assignment order copy is Ex.PW2/DX.........".
"................I do not remember if any letter was sent to me whereby another team headed by S.C. Khulbe joined my team for assistance. It is wrong to suggest Pages: 23 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 that I had not received any specific order whereby the team headed by Sh. S.C. Khulbe joined my team for assistance and that is why I am giving the evasive reply to the effect that I do not remember regarding this aspect. It is wrong to suggest that since the said order for assignment of the team headed by Sh. S.C. Khulbe was not approved by Principal Secretary Finance, GNCT of Delhi that is why I am giving evasive reply that I do not remember in this respect. It is wrong to suggest that the team headed by Sh. S.C. Khulbe was not authorized to conduct the audit alongwith us............"
"................Sh. S.C. Khulbe was available in our team at the time of filing the Interim Report Ex.PW1/A. Audit Memo was issued to the LNJP Hospital for production of the Hospital Record................"
38. In this context, exception1 to Section 91 of the Indian Evidence Act 1872, being relevant is reproduced below :
"Exception 1. When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved."
39. In view of Exception1 and in view of statement of PW1 and PW2 on oath that they had conducted a special audit of purchases made in LNJP Hospital on the instructions of GNCTD (which can be relied upon by the Court unless the contrary is proved), there is no requirement that the writing by which Sh. S.C. Khulbe, Sh. Sunder Lal and Sh. V.K. Kural were directed to conduct audit be formally proved.
(v) Tampering, if any, in the Audit Reports :
40. It is further argued that there is tampering in the interim audit report as the word 'consumed' has been cut and the word 'issued' has been written in its place, similarly words 'used' has been cut and 'issued' has been written in its place. It is further argued that the author of this overwriting has not been established by the prosecution. It is further argued that audit reports are inadmissible for want of Pages: 24 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 certificate U/s 65B of Indian Evidence Act, 1872.
41. It is also argued that the relevant file was summoned from the Directorate of Audit, GNCTD and there was another interim audit report Ex.PW2/DX1 which is different from interim audit report Ex.PW1/A and when the said interim report was put to PW2 Sh. A.P. Joshi, Sh. A.P. Joshi gave a false explanation that the said report was a comment made and not an interim audit report, though it is mentioned in portion mark A to A i.e. the heading of the document Ex.PW2/DX1, "interim report of Special Audit in R/o purchases made by Lok Nayak Hospital w.e.f. 01.01.02 to onwards".
42. The interim report was proved by PW1 as well as PW2 as Ex.PW1/A and though the counsel for the accused has argued that the document Ex.PW2/DX1 is the internal audit report but the relevant portion of the testimony of PW2 clarifying the above aspect is reproduced as below :
".............On being shown from the file produced by Sh. H.R. Naugin by Ld. Defence counsel Sh. P.K. Dubey, Adv. this witness stated that the copy of the Comment as available in the said file which is Ex.PW2/DXI (this document is taken out from the main file produced by Sh. H.R. Naugin) is different from the Interim Report Ex.PW1/A. Vol. I have filed the Interim Report Ex.PW1/A but the said Comment Ex.PW1/DXI as available on the file has been prepared by the Directorate of Audit on the basis of my Report Ex.PW1/A. It is wrong to suggest that the said Ex.PW1/DXI is the Interim Report and not Comment. I do not know who has prepared the said Comment Ex.PW2/DXI................"
43. The above testimony of PW2 clearly establishes that the document Ex.PW2/DXI is not the interim audit report but are the comments prepared on the basis of the interim audit report Ex.PW1/A. Even otherwise the perusal of the document Ex.PW2/DXI shows that the same is a part of internal noting of the file as on the third page of the document it is mentioned "submitted please" and is marked to Sr. A.D./HQ and then marked to DSF/Calm. and written "may kindly Pages: 25 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 see for information. Keeping in view the volume of work involved the audit is likely to be completed by the end of March,2003" and the file was then marked to ASF. After perusal of the document Ex.PW2/DX1, the present court has no doubt that the same are comments/notings in the file and not the interim audit report.
44. As far as cutting on the interim audit report is concerned, the said report is a typed document and is being typed by a manual typewriter and in such a document generally a correction is made by hand as it is cumbersome to type entire document again that too without committing another mistake. Merely because some corrections have been made in the document, it would not amount to tampering of document. Also, the said report being typed document generated through manual typewriter, there is no requirement of certificate under section 65B of Indian Evidence Act. As far as final audit report Ex.PW1/B is concerned, there is nothing on record to suggest that the same has been generated from the use of computer. A perusal of the same shows that the same in all probability has been generated by the use of electronic typewriter, as the paragraphs alignment is not justified. There is nothing in the testimony of PW1 and PW2 to suggest that the interim audit report and final audit report are generated through computer or are electronic evidence. Even otherwise, even if it is presumed that the final audit report Ex.PW1/B has been generated with the help of computer, the same would not be enough to categorize the same as an electronic evidence and there is no requirement of any certificate under section 65B of Indian Evidence Act for proving any report which has been typed on a computer. Also, the interim audit report Ex.PW1/A and the final audit report Ex.PW1/B have not been saved on any server and were not retrieved from any server while being produced/proved in the court at the time of recording of evidence but were produced by Sh. H.R. Monga, Assistant Account Officer of Directorate of Audit. They are thus, not electronic evidence. Also, no questions have been put on this aspect to PW1 and PW2 during their crossexamination. Thus, no certificate under section 65B of Indian Pages: 26 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016
Evidence Act is required in the present case.
(vi) Expert Opinion :
45. It is further argued that audit report is not filed by the persons who are experts as envisaged under Section 45 of Indian Evidence Act, 1872 in as much as PW1 Sh. S.C. Khulbe is a science graduate and has a diploma in Pharmacy and has only passed departmental examination in Subordinate Accounts Office in Delhi Government. He is, thus, not a qualified chartered accountant and has no prior experience of conducting audit. Even, PW2 Sh. A.P. Joshi has admitted that he does not have a degree of chartered accountant.
46. It is also argued that PW2 Sh. A.P. Joshi has not proved that he had dealt with a vast number of cases for the purpose of audit before he conducted the present audit and therefore, he was not qualified as an expert. It is further argued that without any formal degree and without having the requisite experience, both PW1 and PW2 cannot be said to be an expert as per Section 45 of Indian Evidence Act and thus, the Interim Audit Report i.e. Ex.PW1/A and Final Audit Report i.e. Ex.PW1/B are not admissible in evidence.
47. Though the Ld. Counsel for accused has strongly argued that the auditors were not having a degree of chartered accountant, however, he has failed to produce any legal provision, notification, rule or circular to substantiate his argument that an auditor appointed by the Directorate of Audit to conduct Special Audit of a government hospital must necessarily possess a degree of chartered accountant. As far as literature relied upon by Ld. Defence counsel Mark PW2/DX1 i.e. book on Contemporary Auditing and the basic principles governing audit contained in the said book is concerned, Ld. Defence counsel has again failed to point out as to how these auditing principles were applicable while conducting an audit of the records of a government department and particularly a hospital. PW2 in his crossexamination has deposed that he had followed the instructions and directions of Delhi Government and has conducted the audit as per the directions of headquarters. Ld. Defence counsel has failed to establish that Pages: 27 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 the standard auditing practices formulated by the Institute of Chartered Accountants of India were used and practiced by Delhi Government for the purpose of special audit. PW2 has clearly stated that he was on field duty for conduct of audit in various departments and had retired as Senior Accounts Officer from Directorate of Audit on 30.04.2010 and thus, was an expert in his work.
48. It is further argued that in the Interim Audit Report Ex.PW1/A and Final Audit Report Ex.PW1/B, the standard of procedures followed are not mentioned, moreover, PW2 Sh. A.P. Joshi during his cross examination has deposed that he was not aware about the statement of standard auditing practices issued by the Institute of Chartered Accountants of India or the Audit Manual 2003 or the new Manual of 2004 and also in answer to a question as to whether he has followed the guidelines laid by the Institute of Chartered Accountants of India, he had deposed that he had followed the instructions and directions of Govt. of Delhi and had conducted the audit as per the directions of Head Quarter.
49. Independence of the auditor is the prime requisite for the execution of audit. Compromise in independence of the audit team may distort the objective of audit. The independence of PW1 and PW2 has not been questioned by the accused persons during their crossexamination. It is not the case of the accused persons that the auditing team was influenced or under pressure from any corner whatsoever. It is also not the case of the accused persons that the auditing team had any enmity or personal grudge against LNJP Hospital or the accused persons. In such circumstances, on oath statement of PW2 that he had followed the instructions and directions of Government of Delhi and had conducted the audit as per the directions of headquarters and rules framed by Delhi Government is to be believed unless the contrary is proved.
(vii) NonExamination of Material Witness :
50. It is also argued that the prosecution is duty bound to produce the best possible evidence before the court but the prosecution has not examined material Pages: 28 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 witnesses i.e. Sh.V.K. Kural, Sh. Sunder Lal, Sh. Gopal Singh and Sh. C.L. Sahani despite being summoned and therefore, an adverse inference should be drawn under Section 114 of Indian Evidence Act, that if the above said four material witnesses would have been examined by the prosecution then they would have deposed that no audit was conducted by them.
51. As per the report received on summons to witness Sh. C.L. Sahni, he had expired and thus, could not be examined. Moreover, it is an established law that it is the prerogative of the prosecution to examine or to drop any witness. Also the prosecution can prove a fact by examining a single witness also and it is not necessary that all the witnesses connected to that particular fact be examined by the prosecution. In the present case, Ld. Addl. PP has stated that the evidence of the witnesses i.e. Gopal Singh, Sunder Lal and V.K. Kural would be on similar lines as that of PW1 and PW2 and that their testimony would only be repetitive of what had already been proved on record and therefore, the witnesses were dropped in the interest of justice vide order dated 13.07.2018. Relevant portion of order dated 13.07.2018 is reproduced as below :
"From the perusal of the file, it is revealed that though in the list of witnesses it has been mentioned with green pen that the witnesses at serial no. 5, 6 and 7 are dropped vide order dated 28.04.2011. However, from perusal of ordersheet dated 28.04.2011, it transpired that only witness Sh. C.L. Sahni was dropped as he had expired and remaining witnesses were discharged unexamined as original report was not available on that day. Thereafter, in the ordersheet dated 06.04.2017, it has been mentioned that these witnesses have already been discharged vide order dated 28.04.2011. The witnesses were never specifically dropped by the prosecution, though PE was closed vide statement of Ld. Addl. PP recorded on 28.11.2017. Be that as it may, Ld. Addl. PP has submitted that as the evidence of these three witnesses is on similar lines as that of PW1 and PW2 and their testimony would only be repetitive of what has already been come on record. Therefore, these witnesses may be dropped in the interest of justice.
Pages: 29 of 52 (Kiran Bansal)
Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016
Statement of Ld. Addl. PP recorded separately to this effect. The case is more than 10 years old and I am also satisfied that the evidence of witnesses at serial no. 5, 6 and 7 would only be repetitive of what has already come on record in the testimony of PW1 and PW2 and therefore, no purpose shall be served in examining them.
Request of Ld. Addl. PP for the State to drop the aforesaid witnesses is allowed. Witnesses mentioned at serial no. 5, 6 and 7 in the list of witnesses are dropped."
52. In view of the above order, the arguments of Ld. Defence Counsel regarding drawing of an adverse inference does not survive.
(viii) Withdrawal of Objections by the HOD of Paediatric Department :
53. It is further argued that as per the audit report also the role of withdrawal of the objections has been attributed to the HOD of Paediatric Department and not to Dr. R.K. Navalkha. PW7 has categorically deposed that the accused no. 1 pressurized him to withdraw his letter dated. 08.07.2002. Though, the accused no. 1 during his statement under section 313 Cr.P.C. has stated that he had not pressurized Dr. Y.K. Sarin to withdraw his letter and the said letter was withdrawn by him voluntarily but he has failed to state as to what deliberations took place in the meeting dated 19.07.2002 which led to the withdrawal of letter by Dr. Y.K. Sarin. Certainly Dr. Y.K. Sarin would not have withdrawn his letter without any discussion on this aspect in the meeting. Though, Dr. S.K. Aggarwal has deposed that none of the participants were compelled to put their signatures on MarkPW4/DC (also Ex.PW7/G), but neither the Ld. Addl. PP for State nor the defence counsel questioned him about the deliberations which took place in the meeting dated 19.07.2002.
54. Also, in a government department, even a wish, desire or request by a senior official is as good as a command. Dr. Y.K. Sarin has clearly deposed that he has noted in the meeting dated 19.07.2002 that his department would not be asked to use more than 200 pieces of epicutaneon cave catheter neocath and thereafter, he Pages: 30 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 was dictated to write the portion "Y" on Ex.PW7/G, thereby withdrawing his representation. Moreover, as the consumable item i.e. epicutaneon cave catheter neocath were being procured for the first time, accused no. 1 being head of the institution was otherwise also duty bound to ensure that 2000 pieces were genuinely required by the Peadiatric Surgery Department and were likely to be consumed during the next quarter before procuring the said article.
(ix) Audit Report cannot be the sole basis of Conviction :
55. It is argued that the audit report cannot be the sole basis of conviction in this respect the Ld. Defence Counsel has relied upon the judgment of Okila Luha vs State of Orissa, ((1984) 58 CLT 80), Para 6, wherein it has been observed that: "No order of conviction can be based merely on the basis of an audit report of an inconclusive character as an auditor notes some objections therein and until the objections are brought to the notices of the persons concerned and the liability is fixed by the authorities after proper enquiry, no legal culpability can be fixed."
56. Per contra, Ld. Addl. PP for the State has relied upon K.S. Nazar Vs State of Kerala, decided by Hon'ble High Court of Kerala in Crl. A. No.1049/2005 on 09.07.2015, wherein crime was registered on the basis of the audit report and the auditor PW2 had proved the audit report. It was held as below :
"...............On thorough examination of the accounts, the auditor found out serious irregularities in the maintenance of accounts by the manager and he detected that on various occasions there was failure on the part of the manager to remit the sale proceeds of maveli and nonmaveli items in the account of the maveli store. PW2 has given definite evidence regarding the dishonest misappropriation of the sale proceeds of maveli items to the extend of 86,013.90, and of nonmaveli items to the extent of 17,227.85.............."
"................True, it is that a conviction is not possible solely on the basis of auditor's report. If the auditor's report is well proved in evidence, and if the different Pages: 31 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 instances of misappropriation are well proved by the auditor, as detected by him on examination of the entire records, including cash book and others registers, the court can definitely convict the accused on the basis of auditor's report............."
57. Certainly, I am in agreement with the Ld. Defence counsel that conviction cannot be based merely on the basis of an audit report of inconclusive character but in view of the judgment in K.S. Nazar's case, if the auditor's report is well proved in evidence and the report is based on examination of records such as stock register and purchase register, then the court can definitely convict the accused on the basis of the auditor's report. The FIR in the present case was also lodged on the basis of Audit report. PW3 has deposed that he had sent the Audit reports to the ACB vide his forwarding letter Ex.PW3/A. Moreover, in the present case, apart from the auditor's report there is a testimony of Dr. Y.K. Sarin, PW7 and Dr. K.S. Sachdeva, PW8 who have fully supported the case of the prosecution. PW7 Dr. Y.K. Sarin has clearly stated that he had made an indent for only 200 epicutaneon cave catheters neocath. Dr. Y.K. Sarin, vide his letter dated 08.07.2002 addressed to the Medical Superintendent, had clarified that only 200 pieces were required in his department. He had further requested that the necessary corrigendum may be issued to the supplier at the earliest so that such a huge order is curtailed to the actual requirement of 200 pieces for his department.
58. Also the final audit report Ex.PW1/B does not seem to be inconclusive in nature in as much as the report clearly mentions that catheters amounting to Rs.35,55,000/ have been procured in excess. The report also clearly mentions that the scrutiny of the stock register reveals that the items have been consumed in excess in comparison to previous years during 200102 and 200203 and list of the items which have been consumed too much in excess has also been given. Similarly, it is stated that many of the items have been procured in excess during the year 200203 in comparison to the items consumed during the previous years and the list of such items is also given alongwith the figures of consumption and Pages: 32 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 procurement, details of which are not reproduced herein for the sake of brevity.
59. The final conclusion in the present case otherwise also would be based on the audit reports as well as other documents placed on record and on the appreciation of testimony of other witnesses.
(x) Demand of 2000 Catheters Whether excessive :
60. It is argued that the auditors while conducting the audit did not try to find out the requirement and consumption either annually, quarterly or monthly or daily of catheters, the number of patients in Paediatric department, the number of beds in the previous year and therefore, the prosecution has failed to prove that the quantity of 2000 was not required or was excessive. It is further argued that in order to establish that the demand of 2000 catheters was excessive, the prosecution should have investigated into the previous year consumption / requirement of catheters in the Paediatric department and LNJP Hospital as the burden was on the prosecution to prove that the demand of 2000 was in excess and the accused cannot be asked to prove that the demand of 2000 was justified or was not excessive.
61. In this respect, crossexamination of PW7 conducted on 10.12.2012 being relevant is reproduced below :
"..........(Vol. I had met said Dr. K.S. Sachdeva and brought to his notice the irregularity in the Purchase procedure of these two items. I had stated to him that both the items had only one quotation in tender and both items were coming for first time to the Hospital and for the Indent for said Catheter, the quantity was very large and also inadvertently not mentioned in words then why he did not contact me and clarified the matter, on which Dr. K.S. Sachdeva was evasive and said that the said decision has been taken by Dr. Naulakha)........"
62. The audit report mentions about the previous years consumption in Para4 and the list of 29 such items have been given wherein the consumption is in excess to the previous years. List of 91 items wherein the items have been Pages: 33 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 procured in excess during 200203 in comparison to the consumption during 200001 and 200102 has also been stated. Similarly, Para5 deals with excess procurement during 200203 and a list of 30 items alongwith details of consumption and procured items is mentioned. As regard epicutaneon cave catheters neocath, previous year consumption could not have been mentioned as the said item was procured for the first time by the hospital as revealed from the above testimony of PW7. Similarly, the annual, quarterly, monthly or daily consumption could not have been mentioned in the audit report as the items were procured in July/August 2002. The audit started from 13.01.2003 and therefore, the consumption pattern of epicutaneon cave catheters neocath could only have been examined after the items were delivered. The final audit report Ex.PW1/B clearly mentions that "The stock register reveal clearly that 830 catheters have been used in 4½ months and out of 830 catheters, 560 catheters have been shown as consumed in 4 days i.e. w.e.f. 17103 to 20103." Thus, the consumption pattern of epicutaneon cave catheter were examined by the Audit team for the period of 4½ months. Also, the proposal for procurement, Ex.PW8/I reveals that the items were procured for three months consumption. The indents Ex.PW7/DC1 to Ex.PW7/DC39 also are related to "likely consumption during next quarter". Thus, the consumables purchased were for a period of three months and there is nothing on record to suggest that 2000 epicutaneon cave catheter were likely to be consumed in next quarter or in a period of three months. The catheters were delivered on 19.08.2002 and thus, as per audit report only 270 catheters were issued from 19.08.2002 to 16.01.2003.
63. The purchase of 2000 pieces of a consumable item i.e. epicutaneous cave catheter neocath was thus, excessive in view of the following facts :
(i) item was being purchased for the first time and there was no data regarding the previous consumption;
(ii) the Head of the Paediatric Surgery Department who had indented the said item had written to the Medical Superintendent Pages: 34 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 clarifying that he wanted only 200 pieces;
(iii) no request for the purchase of the said item was made by any other department of the hospital;
(iv) the consumable item was being purchased for the likely consumption during the next quarter or for a period of three months;
(xi) Preliminary Enquiry :
64. It is further argued that no preliminary enquiry was conducted in the present case which is mandatory as per CBI Manual in cases of registration of FIR against the public servants and as has been held in the case P. Sirajuddin Vs. State of Madra (1970) 1 SCC 595 and Lalita Kumari Vs. Govt. of U.P. (2014) 2 SCC 1. In Lalita Kumari's case Hon'ble Supreme Court has held as under :
"................In view of the aforesaid discussion, we hold:
i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed.
Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but Pages: 35 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 only to ascertain whether the information reveals any cognizable offence.
vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant................."
65. Thus, Hon'ble Supreme Court only held that preliminary enquiry may be conducted and it has nowhere been observed by Hon'ble Supreme Court that preliminary enquiry is mandatory. Moreover, there is no law or observation in any judgment of Hon'ble Supreme Court that the entire trial is to be vitiated in case preliminary enquiry has not been conducted before lodging of FIR.
(xii) Requirement of only 200 Catheters was never proved as photocopies are inadmissible :
(a) Demand of 200 Catheters not proved: It is argued that case of the prosecution is based upon the photocopies of documents which are inadmissible.
It is further argued that prosecution relied upon documents Ex.PW7/A, Ex.PW7/C, Ex.PW7/D, Ex.PW7/E, Ex.PW7/F, Ex.PW7/G and Ex.PW7/DC38 to prove that there is requirement of only 200 cava catheters and not 2000 and as the above stated documents are photocopy documents, hence, are inadmissible. It is further argued that objection has been raised while recording the testimony of PW7 Dr. Y.K. Sarin, PW8 Dr. K.S. Sachdeva and PW13 Sh. Roshan Lal on the above mentioned documents as the prosecution has failed to file original copies of the same. As per Section 59 of Indian Evidence Act, 1872, it is held as under: "59. Proof of facts by oral evidence : All facts, except Pages: 36 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 the [contents of documents or electronic records], may be proved by oral evidence."
66. It is further argued that in view of the Section 59 of Indian Evidence Act, 1872, the demand of only 200 catheters cannot be proved by oral testimonies as prosecution has failed to produce any original documents in regard to the same. It is further argued that mere exhibition of said documents does not mean that the said documents are deemed to be proved, as per the judgment of Hon'ble High Court of Delhi in Sudhir Engineering Co. Vs. Nitco Roadways 1995 (34) DRJ
86.
67. As far as Ex.PW7/A and Ex.PW7/DC38 is concerned, both the documents are in fact copy of the indent of the item epicutaneon cave catheter. In Ex.PW7/A, the likely consumption during next quarter is given as 200 whereas in Ex.PW7/DC38, the likely consumption is given as 2000. It is argued by the Ld. Defence counsel that Dr. Y.K. Sarin in his letter Ex.PW7/G has stated that there was some clerical error whereas in his testimony he has stated that one zero had been added and thus, PW7 himself was not clear whether a zero had been added later on or there was a clerical error. However, the testimony of PW7 clarifies this aspect that on going through the copy of the order Ex.PW7/B, he had found that instead of 200 pieces, 2000 pieces of catheters had been ordered and he had brought the inconsistency/error to the knowledge of Medical Superintendent through his letter dated 08.07.2002 and thereafter, he had received a letter from Sh. K.S. Sachdeva on 12.07.2002 and alongwith this letter he had received the enclosure Ex.PW7/E and after perusal of Ex.PW7/E, he had found that one zero had been added after 200, thus making it 2000. It is thus, clear that when Dr. Y.K. Sarin had written the letter dated 08.07.2002, he was under an impression that probably the order of 2000 catheters was due to some clerical error but only after he received the enclosure Ex.PW7/E on 12.07.2002, that he found that a zero had been added after 200.
68. As the original of Ex.PW7/A has not been produced on record, it can be Pages: 37 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 said with certainty that whether the original indent was of 200 or 2000. However, even if it is presumed for the sake of argument that the original indent was for 2000 pieces, the letter of PW7 dated 08.07.2002 was clear and categorical and through this letter Dr. Y.K. Sarin had clearly stated that only 200 pieces are required by his department and the necessary corrigendum should be issued at the earliest. The endorsement of PW7 on this letter in the meeting dated 19.07.2002 is made on Ex.PW7/G and the endorsement of the accused on Ex.PW7/G is at point Y. The accused during his statement recorded under section 313 Cr.P.C. has stated as under :
"It is correct that I called the meeting on 19.07.2002 at 04:00 pm which was attended by me, Dr. K.S. Sachdeva, Dr. S.K. Aggarwal, Dr. Y.K. Sarin and Sh. Dimple Budhiraja and in the same meeting, a correction was made regarding the solid synthetic testis pieces. It is incorrect that Dr. Y.K. Sarin asked me why the same order for the catheter should not be changed. It is further incorrect that I refused the said request as no request was made. Dr. Y.K. Sarin voluntarily withdrew the letter dated 08.07.2002 in the presence of all the participants and made the endorsement voluntarily in his own handwriting on Ex.PW7/G that "in the meeting held in the MS Office the matter has been reviewed and the above letter is withdrawn". I have not made any assurance for use of 1800 pieces to other department. There was no inducement for the withdrawal of the said letter. I have made the endorsement on Ex.PW7/G in the presence of all the members including Dr. Sarin then and there in the meeting itself. PortionY of the letter was written by me in the presence of Dr. Sarin and the other members. After writing the portionY, all the members put their signatures next to the endorsement after verifying and satisfying with the contents of the same. Proceeds of meeting dated 19.07.2002 were recorded on the body of the letter dated 08.07.2002 of Dr. Sarin itself in the presence of all the members."
69. The genuineness of Ex.PW7/G is not disputed by the accused. The accused herein has issued a letter Ex.PW7/F calling for a meeting to discuss the Pages: 38 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 issue. At the time of recording of testimony of PW7 also, no objection was raised to the exhibition of documents Ex.PW7/D, Ex.PW7/E, Ex.PW7/F and Ex.PW7/G and objection was taken only to the mode of proof of documents Ex.PW7/A and Ex.PW7/B. The fact that the accused no. 1 has placed an order for purchase of 2000 epicuteneon cave catheter neocath with the accused no. 2 is also not disputed by the accused persons and the only defence is that the letter dated 08.07.2002 was withdrawn voluntarily by PW7. In such circumstances, the merits of the case would not be affected only due to the nonproduction of original of above said document by the prosecution during the trial.
(xiii) Ex.PW7/A - Tampered Document :
70. It is argued that the document Ex.PW7/A is forged document which has been subsequently fabricated in order to falsely implicate the accused no. 1. It is stated that Ex.PW7/A is not paginated or assigned a number as it was never received by Purchase Officer whereas Ex.PW7/DC has been assigned a number "2K" at point G as the same was the indent which was issued by Dr. Y.K. Sarin and submitted in the Purchase Section. Even PW8 Dr. K.S. Sachdeva has deposed that :
"The indent Ex.PW7/DC38 was not tampered or manipulated in the purchase section, it is a same as received. It is correct that the numbering at point G on the indent Ex.PW7/DC38 is the number which is assigned by the purchase section at the time of pagination."
71. In the present case, no charge for the offence of forgery has been framed, it would not make any difference as to whether document Ex.PW7/A is a forged document or not. In fact the original of Ex.PW7/DC38 has also not been produced in the court and therefore, it cannot be said with certainty as to which of the documents i.e. Ex.PW7/A or Ex.PW7/DC38 is tampered.
72. The issue in the present case is whether the procurement of 2000 epicuteneon cave catheter neocath was excessive or not and whether there was Pages: 39 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 any demand by any department of 2000 epicuteneon cave catheter neocath and in this respect vide Ex.PW7/G, Dr. Y.K. Sarin, HOD, Paediatric Department had clearly stated that he required only 200 epicuteneon cave catheter neocath and had also requested for the necessary corrigendum to be issued.
73. It is also argued that PW7 had deposed that the indents were filled by Ms. Mamta Senegar and thus, Ms. Mamta Senegar was an important witness and should have been examined by the prosecution. However, as already observed even if it is presumed that initially Dr. Y.K. Sarin had indented for 2000 epicuteneon cave catheter neocath, he had subsequently clarified vide letter Ex.PW7/G that his department required only 200 pieces and in such circumstances, nonexamination of Ms. Mamta Senegar would also not affect the merits of the case.
(xiv) Minutes of Meeting dated 30.08.2006 :
74. It is argued that the minutes of meeting dated 30.08.2006 Ex.PW4/A regarding meeting dated 19.07.2002 is antedated and the minutes of meeting recorded after four years on which date meeting was held cannot be a proof of meeting held four years back. I am totally in agreement with Ld. Defence Counsel on this aspect. The meeting dated 30.08.2006 was held even after the arrest of the accused Dr. Raj Kumar Navalkha. Moreover, this meeting dated 30.08.2006 was not attended by PW7 Dr. Y.K. Sarin as well as accused Dr. Raj Kumar Navalkha who were present in the meeting dated 19.07.2002 and in the absence of these two persons, to record minutes of meeting dated 19.07.2002 in the meeting dated 30.08.2006 is totally meaningless and thus, Ex.PW4/A is not considered and is not important to decide the merits of the case.
(xv) Sanction Under Section 197 Cr.P.C., 1973 :
75. It is argued by Ld. Defence counsel that the prosecution has not obtained sanction under section 197 Cr.P.C., 1973 from the Competent Authority for prosecution of accused Dr. Raj Kumar Navalkha for an offence punishable under section 120B IPC and protection under section 197 Cr.P.C. is available to him Pages: 40 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 even after his retirement and in this respect, Ld. Defence Counsel has relied upon the judgment of Hon'ble Supreme Court in State of M.P. Vs Sheetla Sahai, AIR 2009 SC (Supp) 1744.
76. In the judgment of Sheetla Sahai, Hon'ble Supreme Court after examining various judgments has stated that in that case sanction for prosecution under section 197 Cr.P.C. was required. It was not held that in all the cases whenever the charge under section 120B IPC is framed against a public servant, then the sanction under section 197 Cr.P.C. would be required. In the above judgment of Sheetla Sahai, reliance was placed on the case titled as B. Saha Kochar (1979) 4 SCC 177, wherein it is held as follows :
".................The words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be". In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision."
77. In Sohan Lal Vs State, Criminal Revision no.47/2017 decided on 17.02.2018, Hon'ble Rajasthan High Court has observed as under :
"................Manifestly thus, the law is well settled that no sanction is required to prosecute a public servant who has ceased to hold office when prosecution is for the offences under the Prevention of Corruption Act. So Pages: 41 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 far as the offence under Section 120B IPC is concerned, the same is an ancillary charge and is being applied for providing the nexus of the petitioner and the other public servants with the private accused and as such, this Court feels that no sanction would be required for the said charge as well. In the case of R. Balakrishna Pillai (supra) relied upon by Sh. Jagga, it was clearly held that the charge under the Prevention of 5 of 6) (CRLR47/2017) Corruption Act could not be disturbed even if the sanction was not taken because the public servant concerned had retired by the date of taking of cognizance. So far as the charge under Section 120B IPC is concerned, true it is that if the ratio of R. Balakrishna Pilla (supra) is applied stricto senso to the facts of the present case, the said charge would have to be struck down because manifestly, cognizance was taken against the petitioner for the said offence without procuring sanction under Section 197 Cr.P.C. However, this Court is of the opinion that no prejudice would be caused to the petitioner on this count and the requirement of sanction for the said offence would have to be considered at the stage of final decision of the case in light of the Supreme Court decision in the case of State of U.P. Vs M.P. Gupta reported in (2004) 2 SCC 349 wherein, it was held that protective umbrella under Section 197 Cr.P.C. is available only when the alleged act done by the public servant is directly connected with discharge of official duty and is not a cloak for indulging in the offence. Hon'ble the Supreme Court also went on to hold that it is no part of duty of public servant to enter into criminal conspiracy or criminal misconduct. On these grounds, it was concluded that sanction for prosecution is not necessary to prosecute a public servant for the offence under Section 120B IPC............"
78. To pressurize Dr. Y.K. Sarin to withdraw his letter dated 08.07.2002 cannot be a part of official duty of the accused. To enter into a criminal conspiracy also cannot be a part of official duty and therefore, in the present case sanction under section 197 Cr.P.C. is not required.
(xvi) Deliberate NonExamination of PW5 Dr. S.K. Aggarwal/NonRebuttal of Pages: 42 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 Testimony of Sh. S.K. Aggarwal illicited in CrossExamination :
79. It is argued by Ld. Defence Counsel that PW5 Dr. S.K. Aggarwal, who was present in the meeting dated 19.07.2002 and witnessed the withdrawal of letter of Dr. Y.K. Sarin, has not been examined by the prosecution. It is further argued that PW5 has only been examined cryptically by putting only four questions in toto which pertain to subsequent meeting dated 30.08.2006 as he has not supported the case of the prosecution and therefore, an adverse inference ought to be drawn against the prosecution for the same. However, Dr. S.K. Aggarwal during his crossexamination on 21.04.2012 has deposed that he did not remember whether he had attended the meeting dated 19.07.2002 and therefore, nonexamination of PW5 on this aspect would not affect the merits of the case. (xvii) Error in Framing of Charge :
80. It is argued that accused no. 1 has been charged with Section 13 and Section 13 (1)(d) of PC Act, 1988 in general and no particular subsection has been mentioned in the charge framed against him. It is further argued that under section 13(1)(d) of PC Act, a public servant can commit two kinds of offences, firstly the ones in which the public servant himself gains pecuniary advantage and secondly the ones in which the public servant causes pecuniary advantages to a private person. It is argued that under all the heads of charge framed against accused Dr. Raj Kumar Navalkha, it has been stated that the alleged offence committed by him is the prior i.e. for his own wrongful gain/pecuniary advantage and none of the heads of charge states that pecuniary advantage has been caused by him to the private person. It is further argued that Section 464 Cr.P.C. does not have any application to the present case as it is not applicable to proceedings in the trial court itself and has been envisaged visavis proceedings before the appellate court. In so far as Section 215 Cr.P.C., 1973 is concerned it is stated that the said provision will not come to the rescue of the prosecution in as much as Dr. Raj Kumar Navalkha from the very inception of the trial i.e. when the charge was framed against him was under the impression and believed that he has been Pages: 43 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 charged of having committed an offence under Section 13 of PC Act for obtaining pecuniary advantage for himself and not for the second part of Section 13(1)(d) which deals with pecuniary advantage given to a private person by a public servant. On account of the same, Dr. Raj Kumar Navalkha has been gravely prejudiced as he had not effectively crossexamined the witnesses keeping in view the same and no such circumstance has even been put to him. Therefore, Dr. Raj Kumar Navalkha cannot be convicted under section 13(1)(d)(iii) or any part of Section 13 of which deals with obtaining/causing pecuniary advantage to a private person.
81. Section 215 and 464 Cr.P.C. being relevant are reproduced as under :
215. Effect of errors - No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.
464. Effect of omission to frame, or absence of, or error in, charge.(1) No finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court........."
82. Thus, a perusal of the above two provisions clearly establishes that an error in framing of charge must be material and it should have occasioned a failure of justice for it to vitiate a trial. An irregularity is not regarding as fatal unless it results in substantial prejudice to the accused. In Willie (William) Slanely Vs The State of Madhya Pradesh AIR 1956 SC 116, Hon'ble Supreme Court observed as under :
"................If he does, if he tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against Pages: 44 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarding as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice.
..................But when all is said and done, what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one. It is immaterial whether the charge was framed properly or not; what matters is whether the error, omission or irregularity occasioned substantial prejudice.............."
83. In the present case a charge under Section 13(1)(d) of the 1988 Act was framed. The specific subclauses, i.e. (i), (ii) or (iii) were not mentioned. This is not a fatal irregularity and has not caused any prejudice to the accused as all the particulars regarding the charge against him were clearly stated. The accused understood and was well aware about the allegations against him and thus, there has been no failure of justice by the omission of the subclause. Each of them, i.e. clauses (i), (ii) and (iii) are all a part of the Section 13(1)(d) and the accused persons were aware of the case and the facts essential for them to defend during the trial, were clearly spelled in the charges. All the particulars necessary to make the accused understand that he was being tried for the offence of criminal misconduct in the discharge of his official duties on grounds falling under clauses
(ii) and (iii) of section 13(1)(d) have been set out in the charge. The accused has extensively crossexamined the witnesses on the aspect that the letter Ex.PW7/G was voluntarily withdrawn by Dr. Y.K. Sarin in the meeting dated 19.07.2002 and that he had procured 2000 epicutaneon cave catheter neocath on the basis of Pages: 45 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 requisition and indent from the paediatric surgery department. The court is satisfied that there has been no prejudice to the accused, by the mere nonmention of the specific clauses of subsection (1)(d) of Section13 or by the mentioning of the words "for yourself" in the charge . For these reasons, this Court is of opinion that the omission to mention certain details, or omission to mention the ingredients of the offence or some of the words in the provisions, or omission to outline the provisions cannot be considered fatal, as there was a reference to Section 13(1)(d), and the general facts relating to the charges were narrated. There was no failure of justice or prejudice to the accused due to the irregularities in the charge.
(xviii) Miscellaneous Arguments :
84. Though the accused no. 1 during his statement under section 313 Cr.P.C. has stated that the witnesses have deposed against him as they wanted him to be removed from the post of Medical Superintendent and make Dr. Ramtake as Medical Superintendent but no such suggestion has been given to any of the witnesses during their crossexamination.
85. It is also argued that in the present case IO and the complainant are one and the same person and therefore, prejudice has been caused to the accused and it is argued that the complainant and the IO cannot be the same person in view of the judgment of Hon'ble Supreme Court in Mohan Lal Vs State of Punjab dated 16.08.2018. In Mohan Lal's case it has been held as under :
"................It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof......."
86. In Mohan Lal's case, the conviction was under section 18 of the NDPS Act, 1985 Pages: 46 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 and it was held that in cases of laws carrying reverse burden of proof, the informant and the IO should not be the same person. Mohan Lal's case is distinguishable from the present case in as much as there is no reverse burden of proof on the accused persons.
87. In I.P. Vigilance & AntiCorruption, Tiruchirapalli Vs Jayapaul, in Crl. A. No.359/2004 decided on 22.03.2004 by Hon'ble Supreme Court, where the FIR was lodged under the provisions of Prevention of Corruption act, it has been observed as under :
"................We find no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer.........."
"...............In the present case, the police officer received certain discreet information, which, according to his assessment, warranted a probe and therefore made up his mind to investigate. The formality of preparing the FIR in which he records the factum of having received the information about the suspected commission of the offence and then taking up the investigation after registering the crime, does not, by any semblance of reasoning, vitiate the investigation on the ground of bias or the like factor..............."
".................The fact situation in the present case is entirely different. The appellant Inspector of Police, after receiving information from some sources, proceeded to investigate and unearth the crime. Before he did so, he did not have personal knowledge of the suspected offences nor did he participate in any operations connected with the offences. His role was that of investigator pur and simple. That is the obvious distinction in this case. That apart, the question of testing the veracity of the evidence of any witness, as was done in Megha Singh's case, does not arise in the instant case as the trial is yet to take place. The High Court has quashed the proceedings even before the trial commenced.................."
Pages: 47 of 52 (Kiran Bansal)
Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016
88. Testimony of PW3 has established that the audit reports were sent to ACB and the FIR was lodged on the basis of the audit report. Merely because the name of the IO is mentioned in the column of complainant in the FIR, would not make him a complainant. Moreover, no prejudice has been caused to the accused due to the fact that the name of the IO is mentioned as complainant in the FIR. (xix) Abuse of Official Position as Public Servant & without any Public Interest :
89. It has been argued that accused has not acted against any public interest and the purchase of 2000 pieces of epicutaneon cave catheter neocath was in the interest of patients. It is also argued that there is nothing on record to show that the accused has abused his official position and the prosecution has failed to prove mens rea. Ld. Addl. PP for State has relied upon the judgment Runu Ghosh Vs. C.B.I. dated 21 December, 2011 of Hon'ble High Court of Delhi in this respect.
An important question that arose for consideration in the above case was whether for the purposes of Section 13(1)(d) (ii) or (iii) PC Act the prosecution has to prove mens rea". The question also arose as to whether mens rea is impliedly excluded in Sections 13(1)(d) (ii) and (iii) of the PC Act 1988. The relevant portion of the judgment is reproduced herein below :
"...............It was urged that the fact that the price as demanded by M/s. ARM was restored to it by the MoS (C ) overriding the advice of his subordinates, which has a financial implication of Rs.1.86 crores for the government was sufficient in itself to characterize the said action as an abuse of official position for the purposes of section 13(1)(d)(ii) and as being without public interest for the purpose of section 13(1)(d)(iii) of the PC Act. The questions that arise in this context are in a government run essentially by an Executive with a Minister heading a Department, and where decisions involving financial implications are taken routinely, when can a decision be said to constitute an abuse of official position? What can be said to be a decision that is not in public interest?"
Pages: 48 of 52 (Kiran Bansal)
Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016
"Then we have Section 13(1)(d)(iii) of the PC Act 1988 which is a new species of offence for which there is no corresponding provision in the PC Act of 1947. Whether the absence of adverbs like wilfully, fraudulently, dishonestly, corrupt or illegal means to qualify the verb obtains in this clause would mean that a public servant commits criminal misconduct if he while holding such office obtains for any person (and not for himself) any pecuniary advantage which is without any public interest?
...... the Trial Court held the Appellants guilty of the offences in the manner described above. The Court held that the entire conspectus of circumstances proved that the Tender Notice had clearly indicated that the preferred product of procurement was the synthesized version, which despite availability, was not sought to be purchased. Though the order placed for the first 500 included some versions of the crystal type, by the time the rest of the order could in fact materialize, the Department had the option to procure the preferred technology. Ms. Runu Ghoshs notes questioning the action of senior officers in regard to the costing of the crystal version, despite overwhelming opinion of all officials with technical expertise, her correspondence with ARM, the manner in which she advocated its cause, and the recovery of ARMs signed and blank letterheads from her official desk, proved her prominent role in the ultimate price reduction ordered by Mr. Sukh Ram, in November, 1993. As regards Mr. Sukh Ram, the Court, after considering all the notings, and in particular his observations on 15.08.1993 and 31.08.1993, held that after approving the price reduction in respect of ARMs crystal version of the product, no fresh material surfaced, which could have reasonably enabled him to reverse the decision, later in November 1993, directing cost reduction. It was held that in fact ARM had accepted the offer, and after initially hesitating to furnish a bank guarantee, complied with that procedure; Mr. Sukh Ram could not claim ignorance of these facts, since he had gone through the entire file before he took the decision, directing price reduction, which directly benefitted ARM. The role of Mr. Rama Rao, was held to have been proved as that of a conspirator, complicit in the Pages: 49 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016 fact that his concern, ARM was the sole beneficiary of the price revision order by Mr. Sukh Ram. The price revision caused loss to the public exchequer, as substantial amounts were paid to ARM, which ought not to have been paid in the first instance. Mr. Rama Rao who held guilty as a conspirator, it was for the benefit of his company (ARM) that the price equalization was directed on a review, after receipt of his representation."
"...................It was submitted that the consistent approach of the courts, while interpreting the Prevention of Corruption Act, 1947 as well as the 1988 Act, has been to insist that the prosecution should establish the requisite mental intent on the part of the accused and further that such preconditions are to be read as essential ingredients in every penal status."
90. Hon'ble High Court observed in the above judgment as under :
".............A new offence (or subspecies, of the existing offene) has been carved out, in Section 13(1)(d)(iii) which criminalizes, as "criminal misconduct" the act of a public servant, holding office, which results in someone else (any person) benefitting by getting a valuable thing or pecuniary advantage, without any public interest. There is no doubt that Parliament created this new offence of criminal misconduct, where abuse of office, or use of corrupt or illegal means by a public officer, is inessential to prove the crime. What the prosecution has to establish, in according with law, is that the public officer, obtained for someone else - not necessarily by abusing his office, or using corrupt or illegal means - pecuniary advantage or a valuable thing - without public interest............"
91. Hon'ble High Court further observed in the above judgment as under :
"............There is no doubt that Section 13(1)(d)(iii) differs from other parts of the act, not only in structure, but also in substance. The use of terms such as habitually accepts agrees to accept attempts consideration which he knows to be inadequate dishonestly or fraudulently misappropriates. (property entrusted to him or allows any other person so to do);
Pages: 50 of 52 (Kiran Bansal)
Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016
corrupt or illegal abusing his position are clear pointers to Parliamentary intention that mens rea is essential to be proved in relation to the offences provided for under Section 13(1)(a) to (d) (I) and (ii). Section 13(1)(d)(iii) contains no such words, which point to criminal intent............."
"..............The conclusion which this Court draws is that mens rea is inessential to convict an accused for the offence under Section 13(1)(d)(iii). It would be sufficient if the prosecution proves that the public servant "obtains" by his act, pecuniary advantage or valuable thing, to another, without public interest. The inclusion of public interest, in the opinion of the Court, tips the scale in favour of a construction which does not require proof of mens rea................"
92. Thus, to prove a charge of an abuse of official position and the act of the accused being without public interest, the prosecution is not required to prove the mens rea of the accused persons.
CONCLUSION :
93. It is a fact that this is not a case of demand of illegal gratification by Dr. Raj Kumar Navalkha. It is also not a case where the presumption under Section 20 of the P.C. Act is attracted. The prosecution has not been able to prove its case against accused no. 1 for the offence punishable under section 7 of the PC Act, so the accused no. Dr. Raj Kumar Navalkha is acquitted for the offence punishable under section 7 PC Act.
94. The prosecution has succeeded in proving its case against the accused no. 1 Dr. Raj Kumar Navalkha for the offence punishable under section 120B IPC read with section 13(1)(d)(ii)&(iii) of the Prevention of Corruption Act, 1988 and Section 13 (1)(d)(ii)&(iii) of the Prevention of Corruption Act, 1988. I accordingly hold the accused Dr. Raj Kumar Navalkha guilty for the offence under section 120B IPC read with section 13(1)(d)(ii)&(iii) of the Prevention of Corruption Act, 1988 and Section 13 (1)(d)(ii)&(iii) of the Prevention of Corruption Act, 1988.
Pages: 51 of 52 (Kiran Bansal)
Spl. Judge-07 (Central), (PC Act-ACB), Delhi.
State Vs. Raj Kumar Navalkha C.C No.532355/2016
95. The prosecution has succeeded in proving its case against the accused no. 2 Dimple Budhiraja for the offence under section 120B IPC read with section 8 of the Prevention of Corruption Act, 1988 and section 8 of the Prevention of Corruption Act, 1988. I accordingly hold the accused Dimple Budhiraja guilty for the offence under section 120B IPC read with section 8 of the Prevention of Corruption Act, 1988 and section 8 of the Prevention of Corruption Act, 1988. Digitally signed by KIRAN KIRAN BANSAL Announced in the open court BANSAL Date:
2018.09.25 09:23:36 +0530 on 22nd September of 2018.
(Kiran Bansal) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC Delhi/22.09.2018 Pages: 52 of 52 (Kiran Bansal) Spl. Judge-07 (Central), (PC Act-ACB), Delhi.