Delhi District Court
State (Cbi) vs Lt.Col.J.K. Bhagat on 21 July, 2012
1
IN THE COURT OF SH. DHARMESH SHARMA
SPECIAL JUDGE03 CBI/ NEW DELHI DISTRICT,
NEW DELHI
CC No.49/2011
RC No.DAI2001A0068/CBI/ACB /ND
In re:
STATE (CBI)
VS
1. LT.COL.J.K. BHAGAT
NUCLEAR MEDICINE DEPARTMENT
ARMY HOSPITAL, R & R, DELHI CANTT.
NEW DELHI.
C/O MRS. VIJAY LAXMI BHAGAT,
BAXI BHAWAN, AKRON KA RASTA,
KISPOLE, JAIPUR.
2. GAGAN KHANNA
PROPRIETOR M/S. KENT INDUSTRIES
SHASTRI BAZAR, DELHI CANTT.
R/O 52/2 SHASTRI BAZAR, DELHI CANTT.
NEW DELHI.
Date on which charge sheet was filed 01.07.2005
Date on which charges were framed 11.03.2008
Date on which judgment was reserved 17.07.2012
Date on which judgment was Pronounced : 21.07.2012
APPEARANCES:
Mr. S. C. Sharma, Ld.PP for the State (CBI).
Mr. Ajay Burman, Ld. Counsel for A1.
Mr. SK Puri, Ld. Senior Counsel assisted by Mr. Parveen Kumar,
Ld. Counsel for A2.
State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.1/33
2
21.07.2012
JUDGMENT
1. This case was registered on 03.10.2001 by the State (CBI) on source information that M/s. Kent Industries, Shastri Bazar, Delhi Cantt., New Delhi in connivance with certain officials/doctors of Research & Referral (in short R & R), Army Hospital, Delhi have been raising bogus bills on Army Hospital in regard to supply of ceretac without actually affecting these supplies.
2. The case of State (CBI) is that a joint surprise inspection/ check was conducted in the Nuclear Medicine Department, R&R, Army Hospital on 28.04.2000 during which nine vials of Ceretac were physically found in the Medical Stores as against thirty six vials that should have been there. The investigation revealed that the medicine Ceretac was being used/extended on patients duly sanctioned by the Office of DGAFMS i.e. Director General of Armed Forces Medical Services and for the projects sanctioned by the AFMRC (Armed Forces Medical Research Committee) to the doctors involved in such projects; that the medicine was being used for conducting types of brain tests viz PBRN, SCZB, NCB ; that whereas PBRN test was having a nexus with project of Lt. Col. Uma Raju no.2231/98, accused Lt. Col. JK Bhagat (A1) working on project no.2272/99 was the only officer proficient to administer the medicine upon patients of DGAFMS as well as projects of State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.2/33 3 AFMRCs.
3. It is the case of the State (CBI) that A1, was the Head of the Nuclear Medicine Department(for short NMD) who could count for 55 vials of Ceretac out of 82 vials shown to have been received during the relevant time leaving shortage of 27 vials. It is the case of the State (CBI) that investigation revealed that three fictitious bills for an amount of Rs.75,600/ for 2 kits (each kit containing 5 vials and totaling 10 vials), Rs.98,250/ for 13 vials and Rs.30,240/ for 4 vials were dishonestly and fraudulently submitted by M/s. Kent Industries in connivance with A1 and forwarded to the Controller of Accounts (in short CDA), Chandigarh and payment thereof had been released to M/s. Kent Industries on 08.04.2010 and on 02.05.2000 although actual deliveries had not been made and A1 showed the deliveries to have been received on ledger charge in the stores of Nuclear Medicines Department.
4. The case of the State (CBI) is that the procedure that was mandated to be followed by Army Hospital for procurement of drugs for research studies and clinical trials was not followed and the relevant records were falsified by A1 in connivance with A2 who was passed on the pecuniary benefit. It is the case of the State (CBI) that 4 vials for Rs.30,240/ had not been supplied by the firm i.e. M/s. Kent Industries as the payment had not been received. However, 23 vials of ceretac for project no.2272/99 of A1 were State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.3/33 4 procured after joint surprise check, belatedly on 20.09.2000 through a Board of Officers ordered by Maj. General B.N.Shahi the then Commandant , R & R, Army Hospital, Delhi Cantt., New Delhi and later these 23 vials were utilized on different patients till 06.01.2001.
5. It is further the case of the State that A1 had not received even a single vial relating to his project no.2272/99 till 28.04.2000 i.e. the date of surprise check but he submitted false quarterly project report to the Office of DGAFMS showing utilization of vials on his project and consumption of full permissible amount of Rs. 2.05 lakhs for Ceretac for the financial year 19992000.
6. On completion of investigation, the present charge sheet was filed against the accused persons.
CHARGE
7. Needless to state that both the accused have been charged for entering into criminal conspiracy to create bogus bills against supply of Ceretac that were never effected and in pursuance of criminal conspiracy preparing and getting past bogus bills in the sum of Rs.75,600/ for 2 kits (each kit containing 5 vials and totaling 10 vials), Rs.98,250/ for 13 vials and Rs.30,240/ for 4 vials of Ceretac while supplies thereof were not effected although shown to have been effected on ledger charge and thereby causing loss to the exchequer. Accused persons have been arraigned for trial State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.4/33 5 under various counts of offences viz. u/s. 120B and 420B IPC r/w Section 13 (2) r/w 13 (1) (d) of PC Act besides substantive offences. The accused persons pleaded not guilty and claimed trial. PROSECUTION EVIDENCE
8. The prosecution in order to prove its case examined as many as 22 witnesses. The main witnesses for the prosecution are from the Army Hospital, who are as under :
9. PW1 was Lt. Col. Uma Raju. She deposed that she was classified specialist in Paediatrics and Neonatology, and project no. 2231/98 was assigned to her of which she was the principal worker and supply of Ceretac used to be taken on ledger charge by A1. Suffice to state that her evidence is quite decisive in the outcome of this case and I shall dwell on her evidence in some details later on in this judgment.
10. PW2 Inspector Vivek Dhir of CBI who in order to verify the allegations in the source information conducted joint surprise inspection on 28.04.2000 of the Stores of NMD along with PW5 Deepak Dass, Dy. Secretary in Ministry of Defence, PW4 GK Kapoor, Drug Inspector from the Office of Drug Controller, GNCT, Delhi and PW8 Jaswant Singh, Deputy Secretary (Vig.), Ministry of Defence as independent witnesses and who deposed that they found that from February,1999 to January 2000 total 82 vials of Ceretac had been delivered and received in the NMD by A1 and State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.5/33 6 only 55 vials were accounted for and while 25 vials were short. He deposed about preparing the memo Ex. PW2/A and seizure of certain documents from NMD and other wings of R& R, Army Hospital viz., Medical Store Indent Book Ex. P1, Radiation Register Ex. P2 and Isotope Expense Book Ex. P3. PW2 Inspector Vivek Dhir also deposed that after verifying the facts he lodged a complaint dated 03.10.2001 Ex.PW2/B with the SP concerned and the present FIR was recorded on 03.10.2001 on the direction of Shri Kamal Pant, SP vide Ex.PW2/C. PW2 Inspector Vivek Dhir deposed that he handed over the documents collected during surprise check on 22.10.2001 to Inspector Tej Parkash vide memo Ex.PW2/D.
11. PW6 K.R.Chawla, Drug Inspector from the Office of Drug Controller, GNCT, Delhi was the member of surprise check team led by Dy.SP D.K.Barik that inspected the premises of M/s. Kent Industries at Delhi Cantt. and deposed that they found that the firm had imported total quantity of 13X5 vials out of which only 10 vials with expiry date 15.07.2000 were available and stated to have been imported against two supply orders dated 05.10.99 and 28.12.99 during the period under reference for the DGAFMS. He deposed that inspection memo Ex. PW6/A was prepared at the spot vide which certain documents were also seized and signed by him.
State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.6/33 7
12. PW3 was Chander Kanta Khanna, who deposed that she was the proprietor of M/s. Kent Industries till 07.07.2001 and her son Gagan Khanna (A2) was managing the business and she also deposed that on 28.04.2000 a surprise inspection was conducted in her presence and her son by a team of CBI, which was signed by her at pointA on Ex.PW3/A.
13. PW9 was K.S.Rana, who was posted as Assistant in DGAFMS and looking after the AFMRC Project in 2002. He deposed handing over the documents in regard to Project No. 2272/99 to the CBI that are Ex.PW9/B and Ex.PW9/C for identification vide production cum seizure memo Ex.PW9/A on 15.03.2002. The files Ex. PW9/B is the complete file in respect of project no. 2272/99 from the day the project was conceived and vide page 19 it shows that the project was sanctioned an Amount of Rs. 2,05,000/ on June 1999 and the project to be completed by 30June 2002 and Ex. PW9/C is the draft progress report prepared by A1.
14. PW10 was Col. KK Soni, who was posted in R & R, Army Hospital, Delhi Cantt., New Delhi as Officer Incharge, Medical Stores in the year 2000. He deposed handing over several documents to the CBI vide production cum seizure memo dated 18.07.2003 Ex.PW10/A. The documents that were handed over were in relation to the two projects of AFMRC i.e. project no.
State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.7/33 8 2231/98 in respect of Lt. Col. Uma Raju and project no.2272/99 in respect of A1 viz. supply orders, ledger entries and the store records on which I would dwell later on in the judgment.
15. PW11 was Brig. S.S.Anand, who was posted in R & R, Army Hospital, Delhi Cantt., New Delhi from January 2001 to May, 2008 as Head of the Department, Nuclear Medicines. He deposed handing over master ledger register (D24)prepared from 03.01.1999 to 01.02.2000 to the CBI vide memo Ex.Pw11/A containing the details of the patients upon which the medicine ceretec was extended. He further deposed that issuance of CRV i.e. Receipt Voucher is a proof of the fact that medicine was taken on charge and received in the stores.
16. PW 12 was Satish Kumar, Chief Petty Officer (Medical) posted in the R & R, Army Hospital, Delhi Cantt., New Delhi from 11.01.2001 to 30.05.2003. He deposed handing over the master book radio pharmacy (D35) and several other documents to CBI which are Ex.PW12/A to Ex.PW12/H, on which I would dwell later on in the judgment.
17. PW13 was Col (Retd.) R.S.Chauhan, who was Incharge of Medical Stores during the period April, 1996 to August, 1999 and deposed about the procedure that was being applied for procurement of medicine and payment thereof besides storage in the stores.
State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.8/33 9
18. PW14 was Capt. S.Nagpal, who was posted as Director, Medicine Research from 2001 to 2003. He deposed handing over the photocopies of the guidelines of AFMRC projects about procurement of medicines that are Ex.PW14/B.
19. PW15 was Brig. (Retd.) G.S.Guglani. He was Officer Incharge, Medical Stores, R & R, Army Hospital, Delhi Cantt., New Delhi from Mid 1999 to Mid 2000. He also detailed the procedure that was being followed for procurement of medicines.
20. PW16 was Inspector Tej Parkash, who took over the investigation from Inspector Vivek Dhir and deposed about seizure of several documents besides recording statement of witnesses u/s. 161 Cr.P.C. and handed over the charge to Inspector A.Sathiamoorthy in the year 2004. Inspector A.Sathiamoorthy of CBI was also examined by the Court at initial stage regarding loss of Radio Isotope register on 12.03.09 and later as PW23 who deposed that she obtained the sanction for prosecution against A1 and filed the charge sheet in the Court.
21. PW17 was Dr.(Mrs.) A.M.Samuel, who was the Director of Bio Medical Group, Bhabha Atomic Research Center, Bombay in 2002. She deposed about receiving letter dated 03.07.2002 Ex.PW17/A from CBI regarding certain queries in relation to the use of Ceretac and TC99 mm and she deposed giving reply to the same vide letter dated 23/24 July 2002 Ex.PW17/B. She also State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.9/33 10 deposed about another letter dated 31.07.2002 which is Ex.PW11/DB by Shri Kamal Pant, SP CBI Ex.PW17/C and its reply by her about the shelf life of ceretec TC99mm vide letter Ex. PW17/D.
22. PW 18 was Daya Nand, Assistant Manager, of Vijaya Bank, Delhi Cantt. He produced the certified copy of SB account no. 30099 in the name of A2 Gagan Khanna Ex.PW18/A besides OD account no.175 in the name of M/s. Kent Industries, Shastri Bazar, Delhi Cantt., New Delhi Ex.PW18/B, whereby it was shown that the cheque towards the supply of Ceretac had been credited in the account of A2.
23. PW19 was Brig. R.G.Dash (Retd.). He deposed that in June 2000 he was posted as Consultant in Ophthamology, Army Hospital, Delhi Cantt., New Delhi. He deposed about documents that are Ex.PW12/H with Appendix Ex.PW19/A that were prepared on stock verification conducted on 18.09.2000 as per the directions of the Commandant and the vials found short on 28.04.2000 had been received in the medical stores.
24. PW20 was Mohan Lal Verma, Assistant Accounts Officer in the office of PCDA Western Command, Chandigarh. He deposed that working in a supervisory category, he was scrutinizing the bills of purchase of medicines and equipments from all Army Hospitals under the Western Command including armed forces medical State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.10/33 11 stores depot. He deposed about five bills that were submitted by him to the CBI vide memo dated 01.04.2002 Ex. PW16/B which are Ex.PW16/A to E besides documents Ex.PW15/DB to DH, Ex.PW16/F to M, Ex.PW15/DC and Ex.PW16/N, Ex.PW16/L, Ex.PW16/P. Ex.PW16/S.
25. PW21 was Lt. Genl (Retd.) B.N.Shashi , who was the Commandant, R & R, Army Hospital, Delhi Cantt., New Delhi during the relevant time, who deposed about the procedure of procurement of medicine in the NMD and I shal dwell on his evidence later on in the judgment.
26. PW22 was D.K.Barik, Addl.SP,CBI, who was member of the CBI team that conducted the surprise check at the premises of M/s. Kent Industries on 28.04.2000.
27. Sanction for prosecution as against A1 was proved by PW7 Suman K. Sharma, who was Under Secretary in the Ministry of Defence during the relevant time and deposed that sanction order was considered and passed by the President of India being the Competent Authority and the sanction order dated 17.05.2005 Ex.PW7/A was issued by her on behalf of President of India. STATEMENT OF ACCUSED
28. On close of the prosecution evidence, both the accused persons were separately examined u/s. 313 Cr.PC,. On putting the incriminating evidence, the accused denied the case of the State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.11/33 12 prosecution. Similarly, A2 also denied the case of the prosecution and both submitted that they have been wrongly implicated in this case. The accused persons did not elect to lead evidence in defence.
ARGUMENTS
29. I have heard Ld.PP for the State (CBI) and also the elaborate arguments of the Ld. Defence Counsel for the accused persons. I have perused the oral and documentary evidence on the record carefully and minutely.
DECISION THE FOUNDATIONAL FACTS ESTABLISHED BY THE PROSECUTION.
30. It is admitted case that PW1 Lt. Col. Uma Raju was assigned the project no.2231/98 of which she was the Principal Worker meant for carrying out the clinical work in case of care of babies, while coworkers Col. S. Bhargava was to carry out CT Scan and Ultrasound procedure on babies and Lt. Col. JK Bhagat (A1) was enjoined to carry out spect studies in NMD. It is also the admitted case that A1 had been assigned project no.2272/99 of which he was the Principal Worker and he was also the Incharge of NMD, Army Hospital. His coworkers were Lt. Col. AK Das, Psychitrist and Mr. Joginder Singh, Scientist. Both projects had been sanctioned by AFMRC. It would be worthwhile to have a cursory look into the State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.12/33 13 "Working Manual" in regard to AFMRC projects which is Ex.PW14/B. Clause 16 mandated submission of progress report in regard to projects approved by AFMRC and the non submission of which was to be construed as a negligence on the part of the workers conducting the project and to be dealt by the respective service head quarters.
31. Clause 17 (J) provided that requirement of fund for each of the project should be limited to the amount that could actually be expended on purchase of equipment, stores etc. and revalidation of unutilized amount allotted during a year was not be permissible in the following year, as it might adversely affect other new proposals and budgetary planning.
32. Clause 19 provided that budget allotted to each worker for a project should be expended in a phased manner well within the financial year and in no case the amount is surrendered except in exceptional circumstances.
33. Clause 31 to 35 laid down the guidelines of local purchase of stores with reference to circular by the Office of DJAFMS No. 2837/DJ AFM/DG3B dated 25.07.1974. The perusal of the said circular also proved on the judicial record would show that vide Appendix J page 44 quotations are mandated to be procured from 3 firms where ever the value of the items is more than Rs. 500/ with stipulation that lowest bid would be accepted and the State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.13/33 14 firm supplying the item is mandated to forward the following documents in triplicate; (a) Pre receipted bills - the original to be signed on the revenue stamp; (b) Contractors bills and (c) Sales tax, Excise duty, Octroi certificate etc., if necessary.
34. Page 45 lays down the requirement for indent and payment of bill that is to be made by sending the contingent bill besides contractor's bill and comparative statement of the quotations to CDA or the Accounts Officers prescribed besides Certificate Received Voucher (CVR) showing items have been taken on ledger charge, inspection certificate and copy of supply order. It is pertinent to mention here that any purchase beyond Rs.1 lakh could only be done by the Director General, Armed Forces through DGS&D; and bills used to be cleared after taking physical delivery of medicine.
35. In the background of the said manual guidelines, we may now have a look as to how, in what manner and what quantities of Ceretec had been ordered and receipted during the relevant time for the 2 projects and for the hospital.
36. It is admitted case that M/s. Kent Industries run by A2 had through out the relevant period participated in the limited tender process and its rates were found to be the lowest one and this company alone supplied ceretec to the project of the DGAFMS and AFMRC. PW1 Lt. Col. Uma Raju in her evidence brings out that she State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.14/33 15 used to take steps to make the indent about procurement of medicine ceretec, invite bids from three Supplier, prepare the comparative tables on the rates quoted, and then used to place the supply orders on M/s. Kent Industries. But she also deposed the actual delivery of the medicines used to be taken on ledger charge by A1 signifying that the medicine had been received in the stores of NMD. It is also brought out in the evidence of PW1 Lt. Col. Uma Raju that first time supply order was placed by her for 10 vials of Ceretac i.e. 2 kits to M/s. Kent Industries on 22.01.1999 vide supply order Ex.PW1/A11 and the supplies were effected on 27.01.1999 vide delivery challan Ex. PW16/V2 and the medicine were taken on ledger charge under signatures of Lt. Col. R.S. Chauhan vide CRV Ex. PW 13/DD.
37. It is then in her evidence that second time indent was made on 02.02.1999 by her for supply of 10 vials i.e. 2 kits of Ceretac to M/s. Kent Industries vide Ex.PW1/A10 and the supply was effected on 10.02.1999 vide Ex.PW1/A4 which deliveries were taken on ledger charge by A1 who signed it at point "D"in Ex. PW16/V3. Third time, supply order for 5 vials i.e. 1 kit of Ceretac to Kent Industries on 25.02.1999 was made vide PW13/DA and delivery was accepted by Lt. Col. Uma Raju on 06.03.1999 vide challan Ex. PW13/DB.
State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.15/33 16
38. It is then in evidence that fourth time supply order dated 11.03.1999 vide Ex.PW1/A7 was placed for ten vials i.e., two kits of ceretec and delivery of 10 vials had been effected on 12.03.1999 vide challan Ex. PW1/A6. PW1 Lt. Col. Uma Raju further deposed that in total she used/applied or extended 25 vials upon 71 patients from December, 1998 to July 2000.
39. It is pertinent to mention here that D24 which is Gama Camera Case Register, R&R, Army Hospital Ex.PW11/A, contains the details of all the investigations done by the department on day to day basis i.e. the detail of name of the patient, rank, unit, age, sex besides brief report of the investigation. When this is synchronized with Ceretac consumption register D26 Ex.PW2/E, it would show that till 25.03.2000, 46 vials had been expended and 9 vials were in the stores which status report was signed by A1.
40. It is also in evidence that process for acquiring 2 kits i.e. 10 vials initiated at the behest of A1 vide supply order PW16/O on 05.10.1999 for project no.2272/99 of A1 and delivery was shown to have been effected vide challan dated 11.10.1999 for the value of Rs.75,600/ vide Ex.PW 16/N and delivery was shown to have taken place on ledger charge vide CRV Ex. PW15/DC signed by A1 on 18.10.1999. Similarly, supply order of 13 vials valuing Rs. 98,250/ is shown to have been done on 28.12.1999 vide Ex.PW15/DD and appear to have been taken on ledger charge on State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.16/33 17 29.12.1999 by A1 vide CRV Ex.15/DB. It is then also in evidence that payment of 10+13 vials had been effected vide cheque no. 622359 dated 30.03.2000 for Rs.75,600/ and cheque no.6225712 dated 31.03.2000 for Rs.98,250/ to A2 which were credited in the account of M/s. Kent Industries in the OD Account no.175 on 08.04.2000 and 02.05.2000 respectively vide bank statement Ex.PW18/B. Further, if the prosecution case is believed, another order was placed for supply of 4 vials valuing Rs.30,240/ delivery was shown to have been taken on ledger charge on by A1 but there are proved no such documents on the record. It is admitted position that during the relevant time, 30 vials had been received for the Hospital i.e., DGAFMS.
41. It is again admitted case that on 28.04.2000 joint surprise inspection was conducted and it was recorded in joint surprise inspection memo Ex.PW 2/A that from January 1999 to January 2000 a total 82 vials of Ceretac were shown to have been received in NMD , whereas disposal of 55 vials only was accounted for and there were 27 vials that were found short. The shortage of 27 vials is further corroborated on joint inspection by the CBI team at the premises of M/s. Kent Industries vide memo Ex.PW6/A wherein it was found that during the relevant period supply of only 65 vials was accounted for the project of DGAFMS and AFMRC while actually 55 had been physically delivered and 10 vials were found State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.17/33 18 in stock of the firm at the time of inspection.
42. For the sake of convenience, let the position be made clear that the fact that 27 vials were short at the time of inspection and had not been actually supplied by A2 on behalf of M/s. Kent Industries and not physically received by A1 as Incharge/Head of NMD has not been challenged by the defence. It appears that subsequent to the inspection on 28.04.2000, letter dated 22.05.2000 Ex.PW12/E was written by M/s. Kent Industries addressed to Head of the Department, NMD, R&R, Army Hospital, Delhi Cantt., New Delhi , signed by A2 acknowledging the fact that they had received payment of Rs.75,600/ for supply of 2 kits i.e. 10 vials besides Rs. 98,263/ for supply of 13 vials of Ceretac and inter alia it was pointed out that "it had not received the dispatch instructions for Ceretac" and the dispatch orders were sought so as to enable the firm to import the medicine. There was a note which was put up by A1 Ex.PW12/F on 14.08.2000 before the OIC, Central Cell Research Project and further approved by Commandant B.N.Shashi, whereby it was directed that 23 vials of Ceretac for which payment had been made by CDA, Chandigarh will be received by the department through a Board of Officers and be taken on ledger charge to be used for AFMRC Projects. Subsequently, A1 wrote a letter dated 31.08.2000 to M/s. Kent Industries for supply of 23 vials of Ceretac. It may be reiterated State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.18/33 19 here that sanction for 4 vials for Rs.30,240/ had not been received from CDA, Chandigarh. The Board proceedings dated 18.09.2000 Ex.PW12/H indicates that Officers comprising of Col.R.G.Dass as the Presiding Officer and Members Lt.Col.A.Ravi Kumar, Subedar (Pharma) JK Singh in the presence of A1 took the physical delivery of 23 vials of Ceretac and certified that it had been taken on ledger charge, which is Ex.PW19/A inter alia signed by A1 and lastly authenticated by Maj.Genl. BN Shahi Ex.PW19/B.
43. The sum and substance of the above discussion is that the prosecution is able to lay the foundational facts to its case that A1, as Incharge or Head of NMD, R&R, Army Hospital, Delhi Cantt., New Delhi, was mandated to take physical delivery of Ceretac and as on 28.04.2000, 27 vials were found short instead of 36 vials; that only 9 vials were found in the stock at medical stores whereas payment for 23 vials had already been made to A2. Exfacie, the procedure that was mandated for taking physical delivery of the medicines before making its payments vide guidelines Ex.PW14/B and as deposed by PW1 without any challenge had not been adhered to by A1. In other words, if the prosecution case is believed it can be inferred that A1 and A2 entered into a criminal conspiracy and thereby cheated the department causing pecuniary loss to it in as much as payment had been made to M/s. Kent Industries of A2 without actually taking the delivery of the State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.19/33 20 specified medicines till 28.04.2000.
44. Per contra, ld. Defence counsel almost in chorus have vehemently urged that admittedly only A1 was proficient or the expert who could administer the Ceretac medicines to indoor patients; that Ceretac was a costly medicine, imported from United Kingdom, having a short shelf life from 12 to 14 weeks from the date of manufacturing and it could not be used without mixing/application of TC 99m, which was a radio isotope that was being supplied by Bhabha Atomic Research Centre; that Ceretac when mixed with TC 99m could be used on three patients at a time and that too within half an hour of its mixing (that was called labeling) and then it had to be expended upon the patients. It was thus strongly urged that A1 within the knowledge of his Commandant BN Shahi deviated or made a departure from the prescribed procedure in order to ensure that there was no wastage of a costly medicine like Ceretac and supplies of Ceretac was used to be ordered in a phased manner, as and when patients were available. In this regard, it was urged that as per register Ex.PW11/A upto 28.04.2000 only 35 patients had been administered with Ceretac under the auspices of DGAFMS while under the project of AFMRC 54 patients for the project of PW1 Lt.Col.Uma Raju and 38 patients for the project of A1 had been administered with Ceretac. It was also urged that A1 to the full knowledge and approval of his State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.20/33 21 Commandant BN Shashi had taken the medicine Ceretac on ledger charge despite their being no physical delivery in order to ensure that the funds did not get lapsed and deviation was warranted in view of erratic or vacillating availability of patients. Much reliance here was placed on a document Ex.PW15/DJ which was admitted by PW21 Maj.Genl.BM Shashi in his cross examination which provides as under : " ACCOUNTING OF CERETEC TC 99 M FOR AFMRC PROJECT Ceretac vials as pe following details have to be received from M/s. Kent Industries against AFMRC Project no.2272/99 as under mentioned CRV's
(a) CRV/MS/NE/148/99 (AFMRC) dt. 10.10.1999 - 10 vials
(b) CRV/MS/NE/02/2000 (AFMRC) dt. 03.01.2000 - 13 vials
(c) CRV/MS/NE/15/2000 (AFMRC) dt. 22.01.1999 - 04 vials Total - 27 vials Total 27 (Twenty Seven) vials are outstanding from M/s. Kent Industries, delivery of which shall be taken as and when required by the department.
Mark 'D'
Sig. Sig.
Joginder Singh JK BHAGAT
SC 'D' LT.COL.
CO-WORKER OIC NUC. MED DEPTT
AH RR
PRINCIPAL WORKER
30.03.2000.
Put up for information.
Dy.COMDT. AHRR
Ex-PW15/DJ COMMANDANT AH R& R
SIGNED
BN SHAHI SIGNED
MAJOR GENERAL P SUBHAS
BRIG.
DY. COMMANDANT "
State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.21/33
22
LEGAL SUBMISSIONS
45. Shri S.K.Puri, ld. Senior Counsel for A2 urged that accused persons did not entertain any "dishonest intention" and his client rather was cooperating with the Army Officials so that there is no wastage of resources. In support of his submissions, he relied heavily on certain observations in the case of States of M.P. v. Sheetla Sahi & Ors, 2009 Crl,.J.4436; (2009) 8 SCC 617, particularly para 44 to the effect that it was within the power of the Competent Authority to make intra departmental and interdepartmental deviations from the prescribed procedures whenever faced with certain pressing difficulties. He urged that mere fact that A2 had been benefited by payment without effecting actual supplies of Ceretac does not bring the case within the ambit of Section 13 (1) (d) of P.C.Act and referred to para 54, wherein it was held that : "Even under the Act, an offence cannot be said to have been committed only because the public servant has obtained either for himself or for any other person any pecuniary advantage. He must do so by abusing his position as public servant or holding office as a public servant. In the latter category of cases, absence of any public interest is a sine qua non.
46. On the other hand, Shri Ajay Burman, ld. Counsel for A1 relied on a decision "Abdullah Mohd. Pagarkar. vs. State ( UT of State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.22/33 23 Goa, Daman and Diu), AIR 1980 SC 499. Reliance was also placed on decision in C. Chenga Reddy. States of AP, AIR 1996 SC 3390. ; Major S.K.Kale .vs. State of Maharashtra , AIR 1977 SC 822; State of Rajasthan. v. Govind Ram Bagdiya, 2003 Cri.LJ 1169. PROPOSITION OF LAW Cheating
47. The law on cheating has been discussed and explained in a plethora of cases by the Superior Courts. The ingredients of cheating as defined in Section 415 of the Indian Penal Code is existence of an intention of making initial promise or exis tence thereof from the very beginning of formation of contract. As per the explanation clause to section 415, a dishonest con cealment of facts is a deception,
48. The ingredients of Section 420 of the Penal Code are as follows:
(i) Deception of any persons;
(ii) Fraudulently or dishonestly inducing any person to deliver any property; or
(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
CRIMINAL MISCONDUCT State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.23/33 24
49. As regards section 13(1)(d) of PC Act, to my mind, the term "crimi nal misconduct" does not imply mere bending of rules or cutting corners. It does not envisage committing a mistake or error of judgment, even se rious one. It must be a mistake or irregularity that is of a high degree that can be termed as unconscionable, fallen way below, or far below, the standards expected of a public servant. reference here can be had to ob servations in the case of " State of M. P. v. Sheetla Sahai (supra).
WHETHER ACCUSED ENTERTAINED DISHONEST OR FRAUDU LENT INTENTION ?
50. Coming to the instant case, bare perusal of Ex. PW15/DJ would show that position of stock of ceretic had been explained by A1 to his Commandant and it was directed 27 vials were outstanding from A2 and the supply be effected as and when required. This document was admitted by PW 21 Major General B.M.Shahi and it was put to PW2 Inspector Vivek Dhir as document Mark "A" without any challenge about its genuineness.
51. Well if the document Ex.PW15/DJ is believed, the authenticity of which has not been challenged by the prosecution, it was well within the knowledge of the Commandant as on 20.03.2000 that 27 vials for Ceretac had no been received in the medical stores . Indeed there was a deviation from the prescribed procedure in regard to procurement of Ceretac but Ex.PW15/DJ State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.24/33 25 invites an inference that such a deviation had been allowed as per the approval of the Commandant i.e. PW21 Maj.Genl. BM Shahi. The fact that there were deviations from the normal prescribed procedure was conceded by PW19 Brig. R.G.Dass in his cross examination to the effect that minor deviations such as taking the stores from the suppliers might be earlier or later than the payment for its utilization depending upon the availability of the patient that could be done with the approval of the Commandant. An inference that deviations had been approved at the level of the Commandant is also fortified from the evidence of PW15 Brig. (Retd.) G.S.Guglani, who was the Officer Incharge, Medical Stores of Army Hospital during the relevant time. PW15 Brig. (Retd.) G.S.Guglani deposd that no facilities were available in the medical stores for storage of Ceretac that required maintaining of sub zero temperature and the problem was compounded because Ceretac had a shorter shelf life.
52. PW13 Col. (Retd.) R.S.Chauhan, who was Incharge Medical Stores, R&R, Army Hospital, Delhi Cantt., New Delhi during the period April 1996 to August, 1999 also in his cross examination conceded that there was a practice that items of AFMRC Projects would not physically come to the stores.
53. It is pertinent to mention here that the fact that Ceretac had a shorter shelf life was clearly brought out in the reply by PW17 Dr. State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.25/33 26 (Smt.) A.M.Samual in her letter Ex.PW17/B. PW17 deposed that Ceretac could not be used by itself and could only be used with TC 99m which was called labeling and could be applied on patients within 30 minutes. This fact was also conceded by PW1 Lt. Col. Uma Raju, PW13 Col.(Retd.) R.S.Chauhan besides PW21 Maj.Genl. BM Shahi in their cross examination.
54. The defence plea that such deviation was allowed due to shorter shelf life of Ceretac and due to erratic or vacillating availability of patients appears to be quite plausible having regard to register Ex. PW11/A. It has come in the evidence of PW13 Col. (Retd.) R.S.Chauhan besides PW15 Brig. (Retd.) GS Guglani as well as PW1 Lt. Col. Uma Raju that in case of any wastage of Ceretac, it was A1 as Head of the NMD, who would have been held responsible. As already destailed herein above, till 28.04.2000, 35 vials had been ordered by PW2 Lt. Col. Uma Raju for her project while at the cost of repetition, she had expanded 25 vials on the patients in respect of her project and 30 vials had been supplied directly to the hospital under the charge of DGAFMS. Where went the 10 vials that were requisitioned by PW2 and delivered as per the ledger charge vide challan Ex.PW1/A6? Both PW2 and PW16 Inspector Tej Parkash were evasive when they were put the suggestion that the 10 vials had been returned to A2 or not physically delivered due to shorter shelf life of Ceretac and was State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.26/33 27 ordered to be procured as and when required.
55. The circumstance that further strengthen the defence plea that deviations were allowed could be gathered from D27 that is Proposal file in respect of project no. 2272/99 of A1 Ex. 9/B that suggests that A1 had submitted progress report of his project that was forwarded to the Ministry of Defence on 16 May 2000 and the actual progress is Ex. PW9/C. There is note dated 06.05.2000 by A1 whereby he wrote down that they will be able to complete the project from the available material and requested that no funds be provided for the year 20002001. This was approved by Brig. R.P.Aggarwal and the Commandent Major General B.M.Shahi on 16.05.00 Ex. PW21/A. The progress report at page no. 19 indicates further that A1 made a special mention that no allocation of funds was required for the year 20002001. This exemplifies the fact that A1 had no intention to deceive the Department least he would requested for additional funding. A1 had ample time to complete his project and it strikes to reason that he would have availed the supply of ceretec in phased manner so as to ensure that there was no wastage or loss to the department due to shorter shelf life of the medicine.
56. In the cited case of Abdulla Md. v. State (Union Territory of Goa) (supra), a public servant and a contractor were prosecuted under the Prevention of Corruption Act and Ss.420, 468, 471 Penal State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.27/33 28 Code for defrauding the Government by submitting false bills of the work done. Though the work was to be done departmentally, it was alleged that in fact the public servant got the work done through the contractor whose tender was not accepted. it was held that:
"Though the work was got executed in flagrant disregard of the relevant Rules and even of ordinary norms of procedural be haviour of Governmental officials and contractors, such disre gard did not amount to any of the offences alleged against them. The onus of proof of the existence of every ingredient of the charge always rests on the prosecution and never shifts. It was incumbent therefore on the State to bring out, beyond all reasonable doubt, that the number of labourers actually em ployed in carrying out the work was less than that stated in the summaries appended to the bills paid for by the Government. The accused could not be convicted relying on the mere im pression of the prosecution witnesses regarding the number of labourers employed from time to time. No doubt there were several irregularities giving rise to a strong suspicion in regard to the bona fides of the accused in the matter of the execution of the work but suspicion, however strong, could not be a sub stitute for proof. And it was not permissible to place the burden of proof of innocence on the person accused of a criminal charge. (Paras 14, 15)
57. In the said view of the discussion, although the prescribed procedures were not adhered to and supplies were taken on ledge charge while physical delivery had not been made till 28.04.2000, I am unable to persuade myself to hold that A1 and A2 had en tered into a criminal conspiracy to do a an illegal act or an act that was legal in an unlawful manner; nor I find that they entertained any "dishonest intention" or fraudulent intention to cheat the de partment. It is difficult to discern that A1 and A2 deceived any State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.28/33 29 body or that they induced anyone thereby causing any loss to the department. The delivery of 23 vials that were found short on 28.04.2000 was effected later on and there was no loss to the de partment as such. PW21 Major General B. M. Shastri did not utter even a single word in his testimony that A1 had any intention to cheat or play any deception upon the Department.
58. As regards "criminal misconduct" within the meaning of Section 13 (1) (d) of P.C.Act, all that can be said is that it cannot be held that A1 used any corrupt or illegal means and thereby ob tained any pecuniary benefit for himself or that he abused his offi cial position as a public servant and obtained any valuable thing or pecuniary advantage for himself. There appears to be no intention or malice in the entire operation. A1 was a senior officer in the project of AFMRC and he probably acted in best interest of the de partment ensuring that no undue loss is caused due to shorter life of the medicine which action had the approval of the Comman dant. If A1 was acting as per the dictates of his Commandant, he can not be fastened with any liability.
59. Before parting with this case, I must reflect here as to how the document Ex.PW15/DJ came to be in the custody of A1. The defence is able to show here that at the time of search on 28.04.2000, one Radio Isotope Record Register was also seized by PW2 Inspector Vivek Dhir vide item no.2 in Ex. PW2/A that reads State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.29/33 30 "Radio Isotope Record Register opened on 01.02.1999 containing 1 to 48 pages containing receipt/consumption/disposal of medicine."This register got misplaced during the investigation and was not filed along with the charge sheet. While the version of PW2 Inspector Vivek Dhir is that this register had been handed over to PW16, Inspector Tej Parkash, on 12.10.2001, PW16 was not able to explain the whereabouts of such register. PW2 Inspector Vivek Dhir, however, during cross examination admitted that he had tak en photo copies of various documents including the Radio Isotope Record Register but even the photo sets were not file with the charge sheet nor produced during the trial. The most shocking as pect of this case is that while the raid was conducted on 28.04.2000, the FIR was registered on 03.10.2001 and thereafter it took the prosecution more than four years to complete the investi gation and file the charge sheet in the court i.e. on 01.07.2005. It is very surprising that this document was seized and was in posses sion of two Inspectors and both failed to satisfactorily account for the said register. The defence to their credit gave ample suggestion to the prosecution witnesses that it was this register that incorpo rated details of receipt of medicines and consumption whereby de viations were made from the prescribed procedure with the ap proval of the Commandant.
State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.30/33 31
60. What also comes as admitted fact during the course of argu ments is that A1 has never been proceeded departmentally during all this time and he was also promoted as Colonal in January 2001 and honorably retired from the services except for withholding of his pension for the pendency of this criminal case. The Board proceedings which are Ex.PW12/H did not censure or warned A1 in any manner , which would further go to suggest that deviations from the prescribed procedure had the approval of the Comman dant. It is an unfortunate case where A1 has suffered tremendous loss of reputation and personal stigma due to this unfounded case against him.
61. How or in what manner, document Ex.PW15/DJ had been left with A1 is shrouded in mystery. Nonetheless, the conduct of the prosecution must be deprecated in the strongest possible terms. If this register was the one that allowed the deviation, its concealment has perpetuated grave injustice upon the accused persons particularly A1 who has suffered the ignominy of this trial ruining his life and liberty with unimaginable mental trauma and harassment.
62. I must also reflect my total displeasure to the manner the en tire case was investigated. It is very surprising that PW2 Inspec tor Vivek Dhir in his cross examination conceded that despite the fact that documents were seized by him on 28.04.2000 and re State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.31/33 32 mained in his possession for more than 11/2 years, he did not ex amine the documents particularly the Radio Isotope Record Regis ter. So much so, he did not even interrogated A1 or for that matter PW2 Lt. Col. Uma Raju nor he examined Commandant Maj.Genl. BN Shahi. PW16 Inspector Tej Parkash too conceded in his cross examination that he did not inquire from Lt. Col. Uma Raju or for that matter Maj. Genl. BN Shahi about the deviations in the proce dure of procurement of Ceretac. Even the coworkers who were working with A1 were not interrogated. PW16 Inspector Parkash had the audacity to admit that the seized documents remained with him for more than 3 years and he could not tally the delivery of Ceretac with TC 99m and its consumption pattern in the hospi tal as well as under the project of AFMRC.
63. Further, PW16 Inspector Tej Parkash was utterly at loss to ex plain the whereabouts of Radio Isotope Record Register. He in his cross examination by ld. Defence counsel for A1 stated that he could not put the said register to A1 during interrogation since it was not traceable. He did not make any entry in the case diary re garding the factum of loss of the said register. The defence put the suggestion that such register was shown to A1 during his interro gation besides Maj. Genl. BN Shashi, who confirmed that Ex.P W15/DJ was having his approval allowing departure or deviations from the prescribed procedure and it was thereafter that the Radio State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.32/33 33 Isotope Record Register went missing. I wonder whether there was a deliberate attempt to save some higher ups in the DGAFMS and for that A1 was made the scapegoat to silence the media. I, therefore, direct that a copy of this judgment be sent to the Direc tor CBI for his consideration and to take appropriate actions against the erring officials.
64. In the said view of the discussion, I find that prosecution has failed to prove its case against both the accused persons. be yond reasonable doubt. Both the accused persons namely Lt. Col. JK Bhagat and Gagan Khanna are hereby acquitted. Since the accused persons have been regularly appearing during the trial and unlikely to abscond away, I do not find imperative to have re course to provisions of Section 437A of Cr.P.C. They are on bail and their bail bonds and surety bonds are hereby cancelled.
65. File be consigned to the record room.
ANNOUNCED IN THE OPEN COURT TODAY: ON 21.07.2012.
(DHARMESH SHARMA) SPECIAL JUDGE 03 (CBI) NEW DELHI DISCTRICT.
State (CBI) v. Lt.Col. JK Bhagat & Anr. Page no.33/33