Delhi District Court
Cbi vs Dr. O.P. Jain Ors on 7 June, 2024
Page No.1 of 85
IN THE COURT OF SH. BHUPINDER SINGH
SPL. JUDGE, CBI (PC ACT)-06, ROUSE AVENUE
DISTRICT COURTS NEW DELHI.
CC No.178/2019
RC No.3(A)/97/CBI/ACU-III/N.DELHI
CNR NO. DLCT-11-000843-2019
CENTRAL BUREAU OF INVESTIGATION
...... COMPLAINANT
VERSUS
1. Dr. O. P. Jain
S/o Late Sh. Hoshiyar Singh,
R/o Flat No.6, Swasthya Vihar,
Delhi-110092. (Proceedings Abated)
2. Sh. Sunil Aggarwal
S/o Sh. Jugal Kishore Aggarwal,
Director M/s B. L. Mktg. Pvt. Ltd.,
161J Gautam Nagar, New Delhi.
R/o W-39, G.K. Part-II,
New Delhi.
3. M/s B. L. Marketing Services Pvt. Ltd..
161-J, Gautam Nagar, New Delhi.
...... ACCUSED PERSONS
Date of institution : 29.11.1999
Date of reservation : 18.05.2024
Date of decision : 07.06.2024
Decision : Accused No.2/Sh. Sunil
Aggarwal and Accused No.3/M/s
B.L. Marketing Services Pvt.
Ltd. stand acquitted.
J U D G M E N T:
BRIEF FACTS OF THE CASE:
1. As per the charge-sheet, the present case was registered against Dr. O. P. Jain, Medical Superintendent G.B. Pant Hospital, CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.Page No.2 of 85
Delhi and Sh. P. K. Bannerjee, Store Officer of G.B. Pant Hospital, Delhi, M/s B. L. Marketing Services Pvt. Ltd, its Directors namely Sh. J. K. Aggarwal and Sh. Sunil Aggarwal on the basis of 'source information'. It is stated that Dr. O. P. Jain, M.S., GB Pant Hospital and Sh. P.K. Bannerjee, Store Officer, GB Pant Hospital during the period 1988 to 1990, entered into a criminal conspiracy with Sh. J. K. Aggarwal and Sh. Sunil Aggarwal, Directors of M/s B. L. Marketing Service (P) Ltd., G.B. Pant Hospital, New Delhi to cheat the hospital. It is stated that in furtherance of their criminal conspiracy, 32 indents were placed on DGS&D without there being any agreement to purchase medical equipment, from various suppliers of which, M/s B. L. Marketing Services (P) Ltd., G.B. Pant Hospital, New Delhi was the Indian agent.
2. In the charge sheet it is stated that such purchases were made at exorbitant rates, that too without there being any requirement and for such purpose false Proprietary Article Certificates (PACs) were issued just to avoid the open tender process. It is stated that accused/Dr. O. P. Jain, Medical Superintendent also sent a misleading letter justifying the issuance of PAC to DGS&D. It is stated that the accused persons cheated G.B. Pant Hospital to the tune of Rs. 6,82,39,580/- and also paid commission to the tune of Rs. 62,00,800/- to accused no.3 M/s B. L. Marketing Services Pvt. Ltd. In later paras of the charge-sheet it is mentioned that in all 38 Indents were placed were placed by CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.3 of 85the accused Dr. O. P. Jain and Sh. P. K. Bannerjee with DGS&D out of which one got cancelled due to financial repercussions. It is stated that a sum of Rs. 8,11,70,512/- was paid to the foreign suppliers by the Chief Controller of Accounts, Department of Supply through letter of credit and the Indian agent i.e Accused No. 3/M/s B. L. Marketing Services Pvt. Ltd received Rs. 58,50,778/-. It is stated that the office copy of purchase files of the said 38 items were not maintained by Accused Dr. O. P. Jain and Sh. P. K Bannerjee. It is stated that Sh. P. K. Bannerjee expired during investigations.
3. After the charge sheet was filed before the Court on 29-11- 1999, cognizance of the offences was taken by the ld. Predecessor vide Order dated 14/12/1999 and accused persons, namely, Dr. O. P. Jain, Sh. Sunil Aggarwal and M/s B. L. Marketing Services Pvt. Ltd. (represented through Sh.Sunil Aggarwal) were summoned for facing the trial.
4. After hearing the arguments on the point of charge, a detailed order on the same was passed on 30/4/2010 and formal charges were served upon the accused persons on 8-7-2010. In the meanwhile, an application was moved on behalf of accused no.1/Dr. O. P. Jain seeking further investigation or in alternate to take cognizance against Dr. M. Khalilullah for having committed various offences for which the applicant was falsely implicated.
CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.4 of 85The same was disposed of as dismissed vide Order dated 30/4/2010.
PROSECUTION EVIDENCE
5. The prosecution examined 46 witnesses for proving its case which can be broadly classified in SEVEN categories. The brief deposition/role of the PWs is being mentioned hereinafter. The detailed deposition of the witnesses shall be adverted to while discussing the necessary ingredients of the offence with which the accused persons have been charges vis-a-vis the rival contentions advanced by the Ld/PP/CBI as well as the Defense Counsel. 5.1 Concerned Doctors of GB Pant Hospital
(a) PW1 is Dr. Devesh Gupta. He was holding the additional charge of store of medical equipment since 30/11/1994. He deposed about the maintenance of 'Stock Register' qua purchase of new medical equipment by the hospital and also deposed that the current balance of the medical equipment lying in the store as on date is also reflected in the 'Stock Register'. He had identified the handwriting and signatures of both Sh. Hari Om Gupta and Sh. Yashpal Batra on the relevant records shown to him regarding receipt of various medical equipment. He also identified the signatures of Sh. Rajender Singh and Dr. S. K. Khanna for the purpose of receipt of medical equipment which was received by the concerned department directly.
(b) PW12 is Dr. U.A. Kaul, retired Director / Professor, GB Pant Hospital. Her testimony was never concluded.
CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.5 of 85(c) PW13 is Dr. M. Khalilullah, retired Professor, Head of Cardiology and Director of GB Pant Hospital. He deposed about his role and duties as a Director of GB Pant Hospital and the role of medical Superintendent of the hospital, who as per him was authorized Purchase Officer, GB Pant Hospital. He deposed that Sh. P. K. Bannerjee was the Store Officer at that time and used to assist Medical Superintendent in purchasing work. He also deposed that only Medical Superintendent was authorized to sign indents and Sh. P. K. Bannerjee was not authorized to do so. He further deposed that it was the Medical Superintendent, who was responsible for the maintenance of the files, who was equally senior officer. He deposed that the need for reconstruction of purchase files arose when it came to the knowledge that certain medical equipment have been purchased and still to be cleared from the customs and on none of a committee by the then Chief Secretary, Government of NCT of Delhi. He deposed that the files related to purchase and equipment etc. were found in bundles of papers, which after sorting by the purchase department, staff were put in individual files and the relevant documents were collected from various agencies like DGS&D, customs authorities and from Delhi Government. He deposed that during search, reconstruction process, certain indents sent to DGS&D were found to be signed by Sh. P. K. Bannerjee under the stamp of Medical Superintendent without any authority.
(d) PW15 is Dr. D.K. Srivastava, Medical Superintendent, GB Pant Hospital in March, 1997. He deposed about the CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.6 of 85correspondences undertaken by him with Director CBI regarding the present case. However, his testimony was never concluded.
(e) PW24 is Dr. R.C. Aranya, who has deposed that he was HOD, Gastro Intestinal Surgery, GB Pant Hospital, New Delhi during 1988 - 1990. He deposed that being HOD, Gastro Intestinal Surgery, he never intended the items mentioned in AT 34, AT 119 and AT 121. He further deposed that however the items mentioned in AT 34 were received in his department from the store of the hospital. Further, he deposed that the items mentioned at AT 119 and AT 121 were not used by his department and that he never signed any Proprietary Articles Certificate (PAC) already Ex.PW2/4, Ex.PW2/40 and Ex.PW2/46.
(f) PW25 is Dr. G.C. Munjal, HOD, Psychiatry Department in GB Pant Hospital. On being shown PAC Ex.PW2/29, he deposed that it does not bear his signatures.
(g) PW27 is Dr. Meena Gupta. She deposed that she served as Associate Professor of Neurology and HOD (Neurology) at GB Pant Hospital between 1988 - 1990. She deposed that she does not know if being HOD she raised demand of any equipment during her tenure.
(h) PW29 is Dr. Sushil Kumar. He deposed that he served as Professor and Director, Professor in Neurosurgery Department at GB Pant Hospital between 1987 to 1992. He deposed about the intends issued by HOD, Neurosurgery Department of GB Pant Hospital qua two respirators required by them. He deposed about the procedure adopted to procure such articles as per the intends.
CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.7 of 85(i) PW34 is Dr. Daljeet Kaur Singh Gambhir. She served as HOD of Anesthesia Department w.e.f. 1997-2001. She deposed that at he relevant time i.e. between 1988-1990, she was the Incharge of all the OTs covering repairs, maintenance of equipment installed there. She deposed about the process of procurement of material/equipment required in the department.
(j) PW35 is Dr. Sudarshan Kumar Khanna. He served as HOD of CTVS in May, 1989, GB Pant Hospital. He was shown AT Nos. 34, 38, 40, 108, 119, 127, 165, 205 and 210. He identified the signatures of Sh. P. K. Bannerjee, Store Officer of Dr. O. P. Jain, the then Medical Superintendent on different letters to the indent written to DGS&D. He deposed that during the relevant period, there were other manufacturers available, who could make the above-mentioned equipment.
(k) PW36 is Dr. Deepak Tempe. He deposed that he was working as Associate Professor in GB Pant Hospital between 1988
- 1990. On being shown AT no.123, PAC having been issued in favor of M/s Spectramed Medical Products mentioning Indian Agent B. L. Marketing Services Pvt. Ltd., he deposed that he cannot confirm whether such product was manufactured by other firm with similar specifications. Similarly, on being shown AT no.299 in favor of M/s Marquest Medical Products Inc., Indian Agent, M/s. B.L. Marketing Services Pvt. Ltd., he deposed that the request mentioned only pertains to ventilator circuit. On being shown AT no.155, he deposed that it is not necessary that the main equipment, monitor and other attachments should be of same CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.8 of 85make. He was also shown AT no.282, he deposed that the reasons mentioned in the PAC Ex.PW2/171 are correct.
(l) PW37 is Dr. Mary Abraham. She deposed that she joined GB Pant Hospital on 1-1-1988 as Assistant Professor, Anesthesia and in the year 2004, she had taken voluntary retirement. She was shown various Proprietary Article certificate (PAC) in respect of different ATs. She deposed that she does not know anything about the reasons mentioned in the PAC stating that she was the junior most in the Anesthesia department and never dealt with the files shown to her that day.
(m) PW39 is Dr. Mrs. Ramesh Arora. She deposed that during the year 1988-90, she was working as Professor, Cardiology Department, GB Pant Hospital. She deposed about the annual indent of the year 1989-90 pertaining to consumer items of the concerned department issued by Dr. K. K. Sethi, HOD. She was shown different ATs and PACs. She did not comment upon the reasons mentioned therein.
(n) PW42 is Dr. N. G. L. Joseph. She deposed that she joined hospital in 1983 and remained posted there till 1994. She was shown various ATs and PACs. She deposed that the reasons mentioned in the PACs are incorrect as the indent articles, who were not a proprietary article and were available in the open market. Further that they were manufactured by many medical equipment manufacturers.
CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.9 of 855.2 Staff members of GB Pant Hospital
(a) PW-3/Sh. N. P. S Bali, Store Officer, GB Pant Hospital, who worked there between 1991-1993 in his cross-examination by Ld. SPP/CBI deposed that Mansa Ramani Committee physically verified the store, received through DGS&D and most of the stores was found. On being cross-examined by Ld. Counsel for the accused, he deposed that physical verification by the members of Mansa Ramani Committee, whom he assisted was not carried out as per the ledgers but as per Accepted Tenders (ATs) by DGS&D and most of the articles were available.
(b) PW4 is Sh. Ravinder Nath Sharma. He deposed that he remained posted as Head Clerk in the GB Pant Hospital from January, 1983 to July, 1991 in the Purchase Section. He deposed that all the purchase work relating to import of goods were being looked after by Mr. P. K. Bannerjee, Purchase Officer-cum-Store Officer and none helped him in this regard except getting some typing work etc. from the junior staff including himself.
(c) PW5 is Sh. R. P. Goel, who worked as Pay & Accounts Officer in LNJP Hospital from 1995 to 1997. He deposed that his department was concerned for making payment of DGS&D as per the procedure laid down in Civil Accounts Manual. His testimony was never concluded.
(d) PW6 is Sh. Salim Hussain. He deposed that he was working as Store Officer at GB Pant Hospital in 1993 where he remained posted till 1998. He deposed about the procedure for receipt and CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.10 of 85issue of articles, surgical consumable items / equipment in the store of GB Pant Hospital.
(e) PW7 is Sh. Rajender Singh, who was working as Technical Officer, Cardio Thoracic Surgery, GB Pant Hospital in 1996-97. His testimony was never concluded.
(f) PW8 is Sh. Ravinder Kumar. He worked as Purchase Officer in GB Pant Hospital from April, 1993 to April, 1994. He deposed about the job required to be done by a Purchase Officer and the subsequent procedure adopted to procure an item / store, demand of which was placed by the HOD of the user department.
(g) PW11 is Smt. Nora B. Singh, retired as Dy. Nursing Superintendent, GB Pant Hospital. She deposed about the procedure followed for issuance of items from stores regarding consumable / non - consumable items.
(h) PW14 is Sh. Sohan Lal Verma, who deposed that he joined GB Pant Hospital as UDC in Administrative Branch in November, 1997. He deposed that he was given the charge of the seat relating to procurement of equipment costing more than Rs.50,000/-. He deposed that there were 220 files in all which were reconstructed and involved total nine members. He deposed that the relevant papers were summoned from the DGS&D and some were available in the office itself. He was shown files D-79 to D-116 whom he identified the signatures of Dr. M. Khalilullah, who certified the said documents to be true copies and also of Dr. O. P. Jain on various documents. He also identified the signatures of Sh. P. K. CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.11 of 85Bannerjee, the then Purchase Officer on few documents but deposed that he cannot do so with hundred percent accuracy.
(i) PW16-A is Sh. Ashok Kumar Nathani, who deposed that in January, 1997, he was posted in GB Pant Hospital as Senior Accounts Officer. He deposed about the documents seized by the CBI which were handed over to them by him.
(j) PW18 is Sh. Ajay Kumar, who was posted as Surgical Store Keeper in GB Pant Hospital in the year 1997. He also deposed about handing over certain documents to the IO vide seizure memo dated 8/9/1997.
(k) PW28 is Smt. Kamlesh Trehan. She deposed that she remained posted as sister nurse in GB Pant Hospital during 1992 to 1998. She deposed about the procedure for receiving equipment, medicines and other articles from the store of GB Pant Hospital and proved the seizure memo Ex.PW28/A vide which she handed over voucher no.25 and voucher no.11 to the CBI.
(l) PW30 is Sh. Mukesh Kumar, Pharmacist, who assisted Sh. Hari Om Prakash Gupta, the then Storekeeper Surgical Equipment Store, GB Pant Hospital, Delhi in the year 1990. He deposed that on the instructions of Sh. Hari Om Prakash Gupta, the items/materials belonging to M/s B. L. Marketing Services Pvt. Ltd. were got unloaded at MRD Block LNJP at 5th and 6th floor in veranda outside the surgical store. He deposed that items were unloaded in two trucks and the unloading completed in the late evening. He deposed that it was not possible for them to count those articles on the same day and no challan / packing list were CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.12 of 85produced by the supplier or its staff, who brought the material. He further deposed that the material remained uncounted and he was not aware whether its entry was made in the stock register or not. He identified the handing over/taking over register already Ex.PW18/B vide which he had taken some of the item's consumables. He deposed that he took other items/equipment from Sh. H O P Gupta on verbal instructions of Sh. O P Miglani and Sh. N P S Bali that the said material was lying inside the store located at MRD Block, 5th Floor, LNJP Hospital.
(m) PW31 is Ms. Pansy Chauhan, posted as Nursing Sister, OT- II at GB Pant Hospital in the year 1990. She deposed that when she was promoted as Nurse Sister, she took over the charge of some equipment/articles vide voucher no.77 of stock book register.
(n) PW32 is Sh. Nishi Kant Sardana. He deposed that in July, 1993, he joined as Clerk in GB Pant Hospital and was posted in purchase branch. He deposed that he along with other officials reconstructed certain files pertaining to the year 1988 to 1990.
(o) PW33 is Sh. Hari Om Prakash Gupta, the then Pharmacist- cum-Storekeeper (Surgical) in GB Pant Hospital. He deposed about the procedure adopted to prepare annual intends, their basis and maintenance of the records. He deposed that every year, the store records were audited and the physical verification of the stocks were shown to be done by the two officials appointed by Medical Superintendent of the hospital. He deposed that in August, 1990 surgical equipment/materials were delivered at GB Pant Hospital which he directed to be delivered at the store to LNJP CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.13 of 85building. He deposed that no delivery challans of the same were given by the representatives of M/s BL Marketing Services Pvt. Ltd., who also did not turn up for segregating and checking the goods till more than three months period. He was shown various delivery challans/packing list and deposed that he and Sh. P. K. Bannerjee received material mentioned therein as a storekeeper of GB Pant Hospital. On being shown files Ex.PW13/D-62 (D-62), Ex.PW13/D-63 (D-63), Ex.PW13/D-65 (D-65), Ex.PW13/D-66 (D-66), Ex.PW33/G, Ex.PW33/F, he deposed that he received the materials from different companies in respect of corresponding challans of relevant AT numbers.
5.3 Officers of DGS&D:
(a) PW2 is Sh. D. S. N. Murthy, who at the relevant time was posted as Asstt. Director of Supplies in E-1 Directorate of DGS&D wherein he was a Purchase Officer. He deposed about the process adopted by all Central/State Government indenters for procuring stores for their requirements. He deposed that the GB Pant Hospital is an indenter as far as DGS&D is concerned and at that time EI-2 Section was handling the purchase of medical equipment. He was shown files from D-43 to D-78 vide which indents of various dates were received from GB Pant Hospital for purchase of the items mentioned therein. He deposed about the steps taken, thereafter for floating and acceptance of tenders on the basis of approval granted by the competent authority.
(b) PW10 is Sh. O.S. Bhadoria. He deposed that in the year 1998, he was posted in the office of the Chief Controller of CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.Page No.14 of 85
Accounts (Supply), New Delhi and vide seizure memo dated 9-3- 1999 Ex.PW10/A, he handed over six documents to the Inspector CBI.
(c) PW20 is Sh. Sanjay Pandey, Director, who was Assistant Controller of Accounts, Department of Supplies in the year 1997. He deposed that in view of the letters received by him from the investigating agencies, he supplied the statement showing the amount of payment made to foreign suppliers and commission of Indian Agent in respect of M/s B. L. Marketing Services Pvt. Ltd. and also forwarded 29 files in original containing the correspondence between the GB Pant Hospital, DGS&D, Bank and the Indian Agents along with original ATs.
(d) PW22 is Mrs. Shakuntala (Retired), who worked as Sr. Accounts Officer, CCS Department of Supply in May, 1997. On being shown documents D-119 and D-120, she deposed that the same pertains to the statements showing the amount of payment made to Foreign Supplier and Indian Agent M/s B. L. Marketing Services Pvt. Ltd. from their office and proved the relevant documents.
5.4 Officers of Directorate of Revenue of Intelligence
(a) PW9 is Sh. Lal Singh Bisht, who at the relevant time i.e. 1998 was posted as Senior Intelligence Officer, Directorate of Revenue Intelligence, Delhi Zonal Unit, CGO Complex, Lodhi Road, New Delhi. He deposed about the documents given by him to the CBI which were received by him from his senior officer CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.15 of 85which related to seizure made in the month of September, 1990 by the DRI from M/s B. L. Marketing Services, New Delhi.
(b) PW21 is Sh. Ved Prakash Sharma, Intelligence Officer, O/o Directorate of Revenue Intelligence, (CI Section), 7 th Floor, D- Block, IP Bhawan, IP Estate, New Delhi. He deposed about the search conducted on 19/9/1990 in the office premises of M/s B. L. Marketing Services Pvt. Ltd., Yusuf Sarai, New Delhi and seizure of various documents therefrom.
(c) PW44 is Sh. Shailender Sharma. He deposed that in the year 1990, he was working as Assistant Director in Directorate of Revenue Intelligence (DRI), Delhi Zonal Unit, New Delhi. He deposed that he was the In-charge of the investigation in the present case which was being investigated by DRI. He deposed that he recorded the statements of some of the witnesses and also guided the various investigators under him in respect of the investigation, which included overseas inquiries. He deposed about the part of investigation as was conducted by DRI which included the preparation of chart Ex.PW44/1 on the basis of documents seized from accused M/s B. L. Marketing Services Pvt. Ltd. and documents recovered from GB Pant Hospital.
5.5 Concerned Officers of Ministry of Health
(a) PW16 is Sh. R. Mohan Kumar, Under Secretary in the Ministry of Health and Family Welfare at the relevant time. He proved the order accorded sanction for prosecution of Dr. O. P. Jain given by the Cabinet Minister of the Ministry of the Health CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.16 of 85and Family Welfare on behalf of the President of India as Ex.PW16/1.
(b) PW19 is Sh. O. P. Jain, Retired Pharmacist, Directorate of Health Services, Delhi. He deposed that vide seizure memo dated 8-9-1997 Ex.PW19/A, he handed over one register to the IO. He deposed that the register was with respect to handing over and taking over the stock between Sh. Hari Om Prakash Gupta and Sh. Yashpal Batra, Storekeepers for the relevant period.
(c) PW23 is Sh. Vinod Kumar Malhotra, the then Assistant Accounts Officer, Finance, Budget Department, Government of NCT Delhi. He deposed about handing over about the files mentioned in the seizure memo dated 30-12-1998 to the CBI from their office record which pertained to allocation of additional funds of GB Pant Hospital.
(d) PW38 is Sh. A.K. Mishra. He deposed that he was posted as Assistant in the Department of Health and Family Welfare, Government of NCT of Delhi in the year 1997. He deposed about the procedure that is adopted in purchase of medical equipment, not manufactured in India. He deposed that the same involves constitution of a Technical Approval Committee and deposed about its construing members as per office order Ex.PW38/A and Ex.PW38/B. 5.6 Officer from the Bank / E.D.
(a) PW17 is Sh. Surender Dutta, Manager, Canara Bank, Green Park Branch, New Delhi. He deposed that he had submitted CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.17 of 85various accounts statements of M/s B. L. Marketing Services (P) Ltd. to the CBI as sought by them.
(b) PW40 is Sh. A.S. Ahluwalia, who was enforcement officer/ED at the relevant time. He deposed about the handing over of photocopies of the note sheets and correspondence of the department mentioned therein to SP CBI by Sh. S.A. Ali, the then Assistant Director, ED.
5.7 Officers involved in Investigation
(a) PW26 is Sh. Balwan Singh, Retired Inspector, ACB, NCT, Delhi. He deposed that he was the IO of case file no.35 dated 20- 11-1990 of PS Anti-Corruption Branch, Delhi Administration, Tis Hazari, Delhi. He proved the seizure memo Ex.PW26/A vide which he seized photocopies of documents, handing over to him by Sh. Jugal Kishore Aggarwal, Managing Director of M/s B. L. Marketing Services Pvt. Ltd.
(b) PW41 is Sh. Bhagat Ram, Retired Inspector CBI. He deposed about the seizure of certain documents mentioned in seizure memo Ex.PW41/A from the office of Sh. P. K. Bannerjee, Store Officer at GB Pant Hospital.
(c) PW43 is Sh. Prahlad Kishore, DSP, CBI, ACB. He deposed that in the year 1997, he was serving as Inspector CBI, ACU-III, New Delhi. He proved the various seizure memos vide which documents were seized by different officers of the CBI which were part of the investigation team.
(d) PW44 is Sh. Om parkash, who was the concerned S.P. at the time of registration of the present FIR and the same was marked to CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.18 of 85IO/Inspector Deep Singh. He proved various seizure memos and letters written by him during the course of investigation which was conducted under his supervision.
Unfortunately, the I.O./Inspector Deep Singh expired before his testimony could be recorded.
STATEMENTS U/s 313 Cr.P.C
6. PE was closed on 8/1/2019 and statements U/s 313 Cr.PC of accused Dr. O. P. Jain and Sh. Sunil Aggarwal were recorded. 6.1 In his statement under Sec. 313 Cr.P.C. accused Dr. O. P. Jain denied having any knowledge regarding co-accused Sh. Sunil Aggarwal being one of the Directors of M/s B L Marketing Services Pvt. Ltd. He admitted that during the period 1988-1990, he was the Medical Suptdt. , Dr. M. Khalilullah was the Director and Sh. P. K. Bannerjee was the Store Officer of GB Pant Hospital, New Delhi. He denied having any knowledge regarding the testimony of PW2 in respect of the procedure adopted for floating and approval of tenders, making of payments for procurement of medical equipment. He denied having any knowledge regarding movement of file in respect of indents/tendering process taken by DGS&D. to the questions pertaining to the reconstructed files having been handed over to Dr. M. Khalilullah, identification of the handwriting and signatures of Sh. P. K. Bannerjee by PW4/Sh. Ravinder Nath Sharma, procedure for receipt and issue of articles by the Store Officer, procedure for procurement of articles in the hospital, he stated that CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.19 of 85the same are matter of record. He stated that the comparative chart Ex.PW21/A is incorrect and that the rates are always decided by DGS&D and the hospital authorities have absolutely no say in deciding the rates. He also stated that the sanction Ex.PW16/1 given by Sh. R. Mohan Kumar is bad in law. He denied having any knowledge of PW30/Sh. Mukesh, on instructions of Sh. Hari Om Parkash Gupta getting the equipment contained in two trucks from B L Marketing Services Pvt. Ltd., getting unloaded at MRD Block, LNJP. He denied having any knowledge regarding Sh. P. K. Bannerjee receiving the materials mentioned in Delivery Challans/Packing List Ex.PW33/A and Ex.PW33/B. on being asked regarding testimony of PW35, who identified his signatures on AT No.108, he deposed that the same is matter of record and he signed indents as per the requirements sent by the different departments after following the due process and rules prescribed and all purchases were made after due approvals of the Purchase Committee and approval of Technical Approval Committee of Delhi Administration. He denied having any knowledge about the files of ATs containing indents signed by Sh. P. K. Bannerjee, Store Officer. He denied the testimony of PW35 and PW42 to the effect that there were other manufacturers also of the items purchased through that AT. He denied having any knowledge regarding testimony of PW1 Dr. Devesh Gupta to the effect that 12 Rascel machines were not issued to the department. He deposed that this is a false case against him and none of the witnesses have deposed about conspiracy between him and other accused persons CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.20 of 85or regarding price differences of the equipment purchased. He stated that he had never authorized Sh. P. K. Bannerjee or any other person to use his stamp or make purchases on his behalf. He stated that he had also issued Office Order and forwarded to all the departments of the hospital and the then Director about the unauthorized use of his stamp and designation. He stated that all purchases made by him were in consonance with finance rules applicable to the hospital at that time and that the chart as alleged to have been prepared by PW21/Sh. Ved Parkash Sharma of DRI is without any basis.
6.2 In his statement U/s 313 Cr.P.C., accused Sh.Sunil Aggarwal admitted that he was one of the Directors of M/s B. L. Marketing Services Pvt. Ltd. He admitted that search of his office was conducted by the DRI, but stated that he do not remember as to which all documents were seized by them. He stated that the statement given by PW21 Sh. Ved Prakash regarding the preparation of comparative chart was not correct. He stated that the said witness in his statement had admitted that the invoices do not contain terms and conditions with regard to installation, guarantee, warranty and after sale services and it contains only the cost price of the equipment or of disposal items were quoted, keeping in view three years warranty instead of one year warranty, installation charges and after sale service including the replacement and supply of accessories. He stated that these facts were not taken into account by PW-21 while preparing the comparative chart. He stated that the equipment and consumable were supplied by M/s B. CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.21 of 85L. Marketing Services Pvt. Ltd. to GB Pant Hospital but he was not aware as to where the same were got stored by the person concerned from the said hospital. He stated that the equipment and consumable items were supplied to GB Pant Hospital as per the order placed by DGS&D to them. He stated that he was not aware as to who received the aforesaid equipment or who signed the receipts.
He stated that PW35 did not state the name of any source or manufacturer in India or abroad or any documentary evidence to indicate that the items mentioned in the concerned ATs were available during the relevant time. He stated that all the supply orders in the present case were issued by DGS&D in favour of M/s BL Marketing Services Pvt. Ltd. and the surgical items mentioned in the supply orders were not been manufactured in India during 1988 to 1990 and had to be imported from foreign countries. He stated that the consumable/disposable items used in the surgical items had to be of the same company as the consumable/disposable items of any other company were not compatible for the proper functioning of the surgical items. He further stated that the items in question were supplied by two foreign funds, namely, Spactramed and Sun Health of Singapore, Kimura of Japan and Sensor Medics and Marequest of USA, M/s B. L. Marketing was a sole Indian Agent on their behalf in this country. He stated that the bills were submitted directly by the foreign suppliers named above and payment was made to them out of the LCs opened in India. He stated that the bills on behalf of M/s B. L. Marketing were CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.22 of 85submitted in respect of the commission to Chief Controller of Accounts, Department of Supply, who used to make payments of the commission to M/s B. L. Marketing, GB Pant Hospital was not concerned for making of the payment. He stated that 80% of the commission was to be made on proof of dispatch and remaining after installation and proper functioning of the equipment on the basis of the commission M/s B. L. Marketing of rupees eight lac to rupees ten lac were still outstanding. He stated that neither he nor any person on his behalf had any direction interaction with co- accused Dr. O. P. Jain.
He stated that the statement given by PW21 Sh. Ved Prakash Sharma of DRI was baseless as he had admitted that he could not trace documents in the file A to G (except file F) on the basis of which he had stated to have prepared the comparative chart (Ex.PW21/A). He further stated that moreover, neither PW- 21 nor any other PW had stated that the rates on which the equipment were supplied by the foreign supplier through the Indian Agent i.e M/s B. L. Marketing Services Pvt. Ltd. was higher or exorbitant in comparison to the sale price to any other hospital. He stated that PW-21 had stated that he had simply compared the cost of import and had not analyzed the reasons for the difference in the cost of the import or equipment by M/s B. L. Marketing Services Pvt. Ltd., New Delhi for its own consumption, for the supply of other hospitals and supply to the G.B. Pant Hospital. He further stated that he or his firm M/s B. L. Marketing had not entered into any conspiracy with co-accused/O. P. Jain or CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.23 of 85with any other person. He stated that he had not committed any offence of fraud or cheated as charged. He further stated that there was no oral or documentary evidence to establish the charge of conspiracy or cheating or of any other offence. He further stated that the price of the equipment supplied to GB Pant Hospital including extended warranty of 36 months, after sale, service and replacement. He further stated that he is innocent and has been falsely implicated in the present case.
For most of the other questions, the accused stated that their matter on records and pleading ignorance about the identification of signatures of the officials concerns.
DEFENCE EVIDENCE
7. After recording of statements of the accused persons under Sec. 313 Cr.P.C., matter was listed for Defense arguments wherein two witnesses were examined on behalf of accused No. 2/Sh. Sunil Aggarwal.
7.1 D2W1 is Sh. Anuj Sharma, Asstt. Commissioner Customs, who filed a certified copy of the order dated 22.11.1996 of Gold (Control) Appellate Tribunal and the same was exhibited as Ex. D2W1/1.
7.2 D2W2 (inadvertently mentioned as D2W1 only) is Sh. Manmohan Singh Sahni. He deposed that he retired as Collector (Customs) Delhi and identified his signatures on Mark PW44/B and proved the same as Ex. D2W1/A. CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.24 of 858. Thereafter matter was listed for final arguments. Before the final arguments were advanced, accused No.1 /Dr. O. P. Jain unfortunately expired and proceedings qua him got abated vide order dated 02/11/2020.
8.1 Arguments advanced by Ld. P.P./CBI:
Ms. Bindu, Ld. P.P./CBI who after a lot of research and efforts, keeping in view the voluminous documents that had to be looked into filed written submissions. She along with Sh. Surender Singh, Ld.P.P/CBI argued that proprietary articles certificates favoring a particular foreign supplier of which accused No.3/M/s. B. L. Marketing Services Pvt Ltd. was the Indian agent and accused No.2 was the Director, were issued by accused No.1/Dr. O. P. Jain and deceased accused/Sh. P. K. Bannerjee, as has come in the evidences of various witnesses. It was argued that the fact that Sh. P. K. Bannerjee/deceased accused was not authorized to sign the indents and was merely a store officer. It was argued that as per testimonies of PWs 1,6,21,24,25,29,30,35,36,39,42 and 44, the amount quoted to the hospital by accused No.3/M/s. B. L. Marketing was much higher than the actual price and that in fact there was no requirement of the equipment that were purchased. It was stated that PW21 and PW44A proved the exorbitant rates quoted by accused No.3/M/s. B. L. Marketing Services Pvt. Ltd. and while relying upon the judgment of Kher Singh Vs. State, AIR 1988 SC 1883, argued that the same proves the conspiracy amongst the accused persons. It was argued that PWs 5,10,16A,17,20 & 22 proved the payment to the accused persons CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.Page No.25 of 85
and as such they were pecuniary benefited. It was further argued that the case rests on circumstantial evidence since conspiracy is always hatched behind closed doors and most of the time, no data evidence is available. It was argued that accused persons namely Dr. O. P. Jain and Sh. P. K. Bannerjee misused their official position and without there any requirement issued false proprietary article certificates without concurrence or approval of the Head of the User Department with intention to show undue favor to accused No.1/M/s B. L. Marketing Services Pvt. Ltd. it was further argued that Sh. P. K. Bannjeree unauthorizedly signed indents that bear false statement that Head of the Department concurred in the proposal. It was further argued that accused No.1 Dr. O. P. Jain dishonestly placed indents under his signatures without requirement and falsely wrote that he had taken approval from the Purchase Committee and the Technical Approval Committee. He also mentioned in the Proprietary Article Certificate that financial advisor and Head of the Department had concurred to the proposal whereas no such approval was taken. It was argued that the prosecution, on the basis of the testimonies of the witnesses examined by it, and the corresponding documents that have been proved during evidence, has been successfully able to prove its case beyond any doubt. It was argued that the evidence so led by the prosecution is sufficient to bring home the guilt of the accused persons facing trial. It was prayed that the accused persons be accordingly convicted for the charges under which they have been charged.
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8.2 Arguments advanced by Sh. Ravi Bassi, Ld. Defence Counsel:
It was argued by Ld. Defence Counsel that prosecution has miserably failed to prove the charges against the accused persons. It was argued that the files that have been produced during evidence are not the original ones but reconstructed and their authenticity is questionable. It was argued that the defense had raised objections during the testimonies of the witnesses that were examined to prove these files, which are yet to be decided by the Court. It was argued that the allegations of prosecution that the PACs were issued without any indent have not been proved through any evidence. It was argued that the prices of the equipment, machineries and accessories was not exorbitant. It was argued that none of the witnesses could prove the same. It was argued that the prosecution for such purpose has relied upon a 'chart', Ex.PW44/1, which was prepared by the team of PW-44 Sh. Shailendra Sharma on the basis of documents seized from accused No.3 M/s B. L. Marketing Services Pvt. Ltd. and from GB Pant Hospital. It was argued that original of Ex.PW44/A was never produced before the Court. It was argued that it is worth noting that the price quoted by M/s B. L. Marketing Services Pvt. Ltd. also included the extended warranty of three years and maintenance during the period, as has been deposed by PW13 Dr. M. Khalilullah. It was argued that there is neither any oral or documentary evidence or circumstance on record that accused No.2 and accused No.3 have abetted the commission of criminal CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.Page No.27 of 85
misconduct by offering any pecuniary advantage to Dr. O. P. Jain or Sh. P. K. Bannerjee in order to get the supply orders in question. It was further argued that there is no evidence on record that equipment and articles regarding 37 ATs in question were not received in the GB Pant Hospital. It was further argued that there is no evidence to show that DGS&D was ever induced by accused No.2 or accused No.3 for getting the supply orders in question since none of the relevant witnesses i.e. PW2, 10, 20, & 22 have deposed anything about the same. It was argued that as such there is no question of the Govt. of India having been cheated by accused No.2 and accused No.3 and no loss can be attributed to the government of India since the equipment against the ATs were indeed supplied. It was submitted that as such the prosecution could not substantiate its allegations against the accused persons as mentioned in the charge-sheet. It was prayed that the accused persons be acquitted.
Written submissions were filed by both sides.
9. Considered.
10. It is worth noting that accused No. 1/Dr. O.P Jain unfortunately expired during the trial and as such the proceedings continued only against accused No. 3/M/S B. L. Marketing Services Pvt Ltd and its Director accused No.2 /Sh. Sunil Aggarwal. As such the evidence is being analyzed only qua CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.28 of 85charges against accused accused No. 2/Sh. Sunil Aggarwal and accused No.3/M/s B. L. Marketing Services Pvt. Ltd.
11. Before adverting to appreciation of the evidence, as led by either side, it would be appropriate to take a glance at the provisions of law, for alleged violation/commission of which the accused persons have been put to trial. The accused persons facing trial, have been charged for commission of offence punishable under Sec.120-B r/w Sec.420 IPC and Sec.13(2) r/w Sec.13(1)(d) of the PC Act, 1988 and substantive offence under Sec.420 IPC, individually.
The relevant provisions are reproduced as under:
Section 120-A of the Indian Penal Code reads as under: -
Definition of criminal conspiracy- when two or more persons agree to do, or cause to be done: -
(1) An illegal act, or (2) An act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation: - it is immaterial whether the illegal act is the ultimate object of such agreement, or it merely incidental to that object."
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Section 10 of the Indian Evidence Act reads as under:
"10. Things said or done by conspirator in reference to common design:-where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of showing that any such person was a party to it."
Section 420 of the Indian Penal Code reads as under:
"420. Cheating and dishonestly inducing delivery of property. - Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Section 13 of PC Act is as follows:
13. Criminal misconduct by a public servant.-(1) A public servant is said to commit the offence of criminal misconduct,-
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or regard such as is mentioned in Section 7; or CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.Page No.30 of 85
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be or to be likely to be concerned in any proceedings or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person who he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person to do so, or
(d) if he,-
(i) by corrupt or illegal means obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself of for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
12. After mentioning the provisions of law, the necessary ingredients constituting them that are required to be CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.31 of 85satisfied/proved by the prosecution also needs to have a glance at. It would be useful while appreciating the evidence brought on record i.e if the evidence available to the court is sufficient to hold that ingredients of all or any of the offences the accused persons have been charged for, stands satisfied or not.
13. The offence of cheating requires essential element of deception as well as fraudulent or dishonest inducement by the accused. Guilty intention is gist of offence of cheating. In order to constitute offence punishable under Sec. 420 IPC, the intention to receive should be in existence at the time when inducement was offered. Dishonestly as defined in Sec. 24 IPC, demands doing of anything with the intention of causing wrongful gain to one person or wrongful loss to another person. Similarly, the word fraudulently as noted in Section 25 IPC, states that a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.
14. Further, in order to come within the mischief of Section 13(1) (d) of the PC Act, the abuse of the position must be dishonest and it must be proved affirmatively that by corrupt or illegal means or by abusing his position, the accused obtained any pecuniary advantage for himself or for some other person.
15. Also, Conspiracy requires an act i.e. actus reas and an accompanying mental state i.e. mens rea. From the definition of conspiracy in Sec.120-A IPC, it is evident that the agreement CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.32 of 85constitutes the act and the intention to achieve unlawful object constitutes the mental state. For a person to conspire with another, he must have knowledge but the law requires something more i.e. physical manifestation of the agreement. The law does not require that the act of agreement take any particular form and that the fact of agreement may be communicated by words or conduct. The relative acts or conduct of the parties must be conscientious and clear to mark their occurrence as to what should be done. The concurrence cannot be inferred by a group of irrelevant facts artfully and arranged so as to give an appearance of coherence, the innocuous, innocent or inadvertent events and incidents cannot be allowed to enter the judicial verdict.
16. The Court is in consonance with submissions of Ld. PP/CBI that in most of the matters there is no direct evidence available for conspiracy since they are hatched in secrecy and it has to be inferred from the circumstances.
17. The Law on Circumstantial Evidence was settled in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 16, the bench of S. Murtaza Fazal Ali, A. Varadarjan and Sabyasachi Mukherjee, JJ laid down the principles i.e. the Panchsheel of the proof of a case based on circumstantial evidence:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
There is not only a grammatical but a legal distinction between "must be or should be proved". It is a primary principle that the accused must be and CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.33 of 85not merely may be guilty before a court can convict and the mental distance 'must be' is long and divides vague conjectures from sure conclusions.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis of accused is guilty.
(3) the circumstances should be of conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show probability the act must have been done by the accused."
APPRECIATION OF EVIDENCE
18. For drawing the inference as Ld. PP/CBI intends this court to do, the prosecution had to prove that the Indents were placed without there being any requirement of any equipment/article and false and fraudulent Proprietary Article Certificates (PACs) were issued so that only Single Tender Inquiry (STI) is resorted to and those equipment/articles also were procured at exorbitant price which ultimately benefited the accused persons even though there is no direct evidence of the accused persons receiving kickbacks.
19. It is well known that GB Pant Hospital is a super specialty hospital and during the relevant period as has come in the testimony of PW-13/Dr. M. Khalilullah it was the only super specialty hospital apart from AIIMS. So, keeping in view the volume of the patients that must be coming for their treatments, the CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.34 of 85quantum of purchases that had to be undertaken can be very well imagined.
PROCEDURES ADOPTED BY GB PANT HOSPITAL FOR PROCUREMENT OF STORES
20. As such in order to understand the case better it would be appropriate to be aware of the procedure that was adopted by the GB Pant Hospital for procuring the articles/equipment for its use.
PW-13 Dr. M. Khalilullah, who served as Director of the GB Pant Hospital between 1988-1995 including the relevant period of 1988-1990, in his cross examination deposed about the procedure and the same is considered vis-à-vis the contents of the chargesheet regarding the same. The procedure is quite clear. One general indent was prepared by the purchase department on the basis of total requirement of the hospital of the previous year regarding the disposables and equipment and also keeping in view the likely increase in the consumption. Apart from this, whatever disposables or equipment were required by any particular department, they were raised by the respective departments by raising separate indents. The requirement of Medical Stores / Equipment was placed by the respective Head of the Departments to the Medical Superintendent / Director of GB Pant Hospital. All such requirements that were received from various departments were consolidated and a Purchase Committee was formed. The Purchase Committee consisted of the Director of the hospital being its Head and the Head of the Departments being its members. After CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.35 of 85the stores / equipment requisitioned by the respective Head of the Departments, GB Pant Hospital were approved by the Purchase Committee and it any unit costed above Rs.50,000/-, the same were sent to the Technical Approval Committee (TAC). The Technical Approval Committee was headed by the Health Secretary, being its chairman and all the Heads of the various hospitals as its members. The Technical Approval Committee used to assess the requirement, department-wise and approve the required items, hospital-wise. For the items / cost more than rupees one lac, the order had to be placed with DGS&D by the hospital. The indents were sent by the Medical Superintendent of the hospital to the DGS&D. Before that the accounts department of the hospital was to certify the availability of the funds for purchasing the approved material.
ROLE OF DGS&D AND THE PROCEDURE ADOPTED BY IT FOR THE PURCHASE OF THE ITEMS
21. PW2/ Sh. D. S. N Murthy deposed that DGS&D is a Central Purchaser Organization under the Government of India whose main purpose to conclude rate contracts and in case of non-rate contracts to procure the items through STI/ATI/LTI. The witness deposed about the mode of purchases being STI/LTI/ATI. He deposed that in respect of indents with PAC single tender enquiry is usually planned. Further that in respect of indents where suppliers are limited, a limited tender inquiry to those known supplier is issued and in respect of stores of general nature where CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.36 of 85there can be many bidders an advertised tender inquiry is issued. He further went on to say that where the stores are to be procured globally, a global tender inquiry is resorted to.
22. He deposed that purchase of any items of value above rupees two crores, the competent authority was Department of Supplies. Before making any single tender enquiry or limited tender enquiry, the DGS&D is to examine whether the firm is registered with the DGS&D or not. He deposed that in case of foreign product / foreign equipment, the foreign principals have to be registered with DGS&D together with the Indian Agent. He deposed that when the tenders are received, the DGS&D examines the acceptability of the price or otherwise in reference to proforma invoice. He deposed that since DGS&D does not have any clearing agency at Delhi, no responsibility of getting cleared then imported goods reaching Delhi is taken by DGS&D. He deposed that at the ultimate destination, the responsibility of clearance and receipt lines with the consignee.
23. As has come in evidence, in particular the testimony of PW2 Sh. D.S.N. Murthy, Retired Assistant Director of Supplies DGS&D, on receipt of the indents from GB Pant Hospital the same were scrutinized through the Central Indent Section and allocates the indent to the concerned for Purchase Section, EI-2 Section being in the present case just meant for hospital equipment. The indents were scrutinized after receipt from Central Indent Section CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.37 of 85and thereafter put before the competent authorities for coverage and on decision of mode of purchase. For the same, either a single tender enquiry (STI) or limited tender enquiry (LTI) or an advertised tender enquiry (ATI) was issued thereafter the tenders were scrutinized and put up before the competent authority for further actions and in case any correspondence or documents were required. Thereafter, the Purchase Section puts the indent incorporating the items, scheduled etc in the case of 'Single Tender' i.e. the indents accompanied by Proprietary Article Certificate (PAC) by issuing 'Single Tender Inquiry' for the foreign supplier and also to his Indian Agents. Thereafter, on receipt of the tender, documents from the foreign suppliers and its Indian Agents, the same were submitted to the competent authority for approval and concurrence from the integrated finance wing of the DGS&D was also sought and in case any correspondence or documents were required, the same were obtained either from the tenderer or the indenter for fulfilling the shortcomings. Thereafter, the price aspect vis-a-vis the invoice of the company was checked with reference to the estimate and once the tenders were found technically and commercially acceptable, then the same were put up before the competent authority for decision and approval ad on receipt of approval, formal acceptance of a tender i.e. AT was issued to the firm.
24. There is no dispute qua the deposition of PW-13/Dr. M. Khalilullah and PW-2/Sh. D. S. N. Murthy either by the CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.38 of 85prosecution or the defence regarding the afore mentioned procedure adopted by the GB Pant Hospital and subsequently DGS&D for ordering and procuring the requisite articles/equipment.
METHOD OF RECONSTRUCTION OF FILES
25. The relevant portion of the testimonies of PWs who were related to the reconstruction of the files needs to be highlighted to gain knowledge about the manner in which the files were reconstructed.
25.1 PW-32/Mr. Nishikant Sardana who in July, 1993 joined as Head Clerk in GB Pant Hospital and was posted in the Purchase Branch deposed that he along with other officials on the instructions of Sh. Ravinder Kumar, the then Purchase Officer and In charge of the Branch, sorted out the papers pertaining to the medical equipment and other store items procured through DGS&D which were lying in the hall. He deposed that the file and the papers which were sorted by him and his staff mostly pertained to the year 1988 to 1990. In his cross examination he deposed that neither he nor anyone else i.e. the staff members who had assisted him, had signed any paper. He also stated that no inventory was prepared by them of the papers which were dumped on the floor and kept in the almirah untagged and loose. He stated that the papers were old and some of them were torn and damaged. 25.2 PW-3/Sh. N. P. S. Bali, who in addition to his duties in technical recruitment cell, Maulana Azad Medical College was CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.39 of 85assigned the work of store officer at GB Pant Hospital between 1991-1993, after being transferred, he was called to search the papers to reconstruct the files pertaining to the purchases of GB Pant Hospital by A.K.Gupta Committee. He deposed that he took help of some persons for the same and the reconstructed files were handed over to Sh. Khalilullah, the then Director, GB Pant Hospital. In his cross-examination, he admitted that all the reconstructed files were kept in the almirah in the room of Dr. Khalilullah under his lock and key. He deposed that he did not remember the number of files so reconstructed by him and how many pages they contained. He deposed that he had neither paginated nor put his initials on those files. He admitted that when he saw those files again, while assisting Gupta Committee, he found those files paginated and indexed. He also admitted that he had noticed some papers attached with those reconstructed files that were got signed from the Head of the department. He deposed that he had not summoned any original file from DGS&D for reconstructing the missing files in question. He deposed that he did not call for any copy of indent from the User Section. 25.3 PW-10 Sh. O.S. Bhadoria proved various documents as Ex.PW10/A to PW10/S and Ex.PW10/P-1, Ex.PW10/U1, Ex.PW10/U2 and Ex.PW10/V-1 to V-3. None of the documents were original. All were the carbon copies and the witness identified his signatures over them. However, in his cross- examination, he volunteered to say that the originals of AT-237 and 240 were lying at the department of supply. He also stated that CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.40 of 85the original record containing the payment are available in the office and he had not handed over those original registers showing the payment to the IO and volunteered to say that the originals registers are very big documents.
25.4 PW-13/Dr. M. Khalilullah deposed that the files related to purchase of equipment etc. were found in bundle of papers, sorted by the purchase department staff and they were put together in individual files, relevant documents were collected from various agencies like DGS&D, customs and Delhi government. Further, that all heads of department were involved in putting the papers together in proper files pertaining to their departments. He identified his signatures and that of other doctors involved in the process of reconstruction of files in files pertaining to different ATs in question. In his cross-examination, he deposed that the documents that were shown to him (of files of different ATs) in his examination in chief, were shown to him by the IO as well. He admitted that the said documents and ATs were shown to him for the first time in the Court. He deposed that he did not remember who had collected the documents of aforesaid files from which place or office. He stated that he cannot say whether the originals of the photocopies in the abovesaid files are available with the concerned department or not.
25.5 If the prosecution story is to be considered as true then this was perhaps one of the high-profile cases of the relevant time as it involved an amount of more than Rs. 8 Crores in 1990s. Still the manner in which the records were collected shows the nature of CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.41 of 85callousness on part of all concerned. Ordinarily every department /institution has a set of rules and procedure which has to be followed in such cases. The prosecution has failed to place on record anything on record weather such rules/guidelines were found out to be in existence or not. Even if there were no such guidelines, they should have been framed before the process of collecting documents for reconstructing the missing files was started. The documents are stated to have been procured from various agencies like DGS&D, customs, Delhi Govt. etc but no letters of inter se correspondences, handing/taking over of documents, their authentication have been produced in evidence. The investigating Officer should have summoned the file containing Indents placed from each under department which, if in order could have proved that such indents were not issued from that department. Nothing has been brought on record as to who was responsible for maintaining all such records. In fact keeping the records in such a manner and no one actually looking after it may create a breeding ground for such kind of acts. There is no record as to who collected what and from where. No document has been authenticated by its maker or source. No list of persons actually involved in the process of recreation of records has been proced by the prosecution. I am not in consonance with submissions of Ld.PP/CBI that original files were not available as they were not prepared by the accused persons. For that the prosecution had to show any office order that the accused persons i.e Dr. O. P. Jain and Sh. P. K. Bannerjee were only responsible for CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.42 of 85maintaining the files. Assumingly that they were even then it cannot be that no copy of such files was required to be maintained by any other department like in the User Department or the Purchase Department. In fact, it has not come in evidence as to who was the actual custodian of the files that were found missing and needed reconstruction. Further the files reconstructed which have not been certified to be complete as they have not been tallied with what can be called a complete one so as to bring on record the nature of 'missing 'documents. Most importantly, no 'noting' have been found to be existing on either of the files. A file is not just a bunch of papers tagged together but must contain the particulars as to who all dealt with it during its course of formation and disposal. On what basis Dr. M. Khalilullah 'certified' the photocopies of the documents given to him remains unanswered. I am in consonance with submissions of Ld.Defence counsel that the authenticity of the reconstructed files of GB Pant Hospital is questionable.
Thus in the opinion of this court the objections taken by the Ld.Defence counsels as to their mode of proof was valid and the same cannot be held to have been proved as per law.
26. Now the appreciation of evidence shall be regarding the aspects of Over pricing, necessity of procurement, use of equipment/articles over which either side have supported their own versions which disputing other's.
CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.43 of 85EXORBITANT PRICES OF THE MEDICAL EQUIPMENT
27. The main focus during the final arguments was upon the prices on which the equipment/articles were procured through ATs in question.
27.1 Ld. PP/CBI has argued that the equipment/articles were purchased at exorbitant rates. However, no witness examined by the prosecution could throw light as to how the prosecution came to the conclusion that the equipment/articles were purchased at higher prices. There is nothing on record to suggest that these equipment/articles were available anywhere at a lesser price. The prosecution rests its case regarding the prices of the equipment/articles being exorbitant on the testimony of PW21/Sh. Ved Prakash Sharma, Intelligence Officer, DRI and PW44/Sh. Shailender Sharma, Asstt. Director, DRI who in turn relied upon the 'comparative chart' Ex. PW-21/A prepared by them during investigation. As per testimony of PW21/Sh. Ved Prakash Sharma, he prepared the said chart showing the difference in prices of similar items imported by accused No.3/M/s B. L. Marketing Services Pvt. Ltd. for GB Pant Hospital and the items imported by M/s B. L. Marketing Services Pvt. Ltd., for self-consumption and for selling to other hospitals. It is worth mentioning that its mode of proof was objected to as it was not signed by anyone. 27.2 The witness i.e. PW21 did not mention the name of any of the other hospitals/institutions for whose consumption similar equipment/articles were imported by the accused No.3/M/s B. L. Marketing Services Pvt. Ltd. in his cross examination, PW21 CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.44 of 85deposed that he had compared prices of item mentioned at sl. No.1
(a) of Ex.PW21/A on the basis of page No.94 of D-186, Ex.PW21/D-1 and page No.77/78 of D-43, Ex.PW21/D-2. In his cross examination, PW-21 admitted that the invoice of M/s Spectramed, Singapore, at page No.94 of Ex.PW21/D-1, does not contain terms and conditions with regard to the installation, guarantee, warranty and after sales services and reflected only the cost price of the equipment that was paid by accused No.3/M/s BL Marketing Services Pvt. Ltd. to M/s Spectramed, Singapore. He also admitted that the corresponding equipment having particulars at page No.73 to 80 in Ex.PW21/D-2 includes the installation, guarantee for 36 months, warranty, after sales service and air freight. He also admitted that he did not analyze the reasons for different prices of the equipment to GB Pant Hospital and other hospitals. He volunteered to say that the officers who conducted the investigation are in a better position to explain. He also deposed that his only task was to prepare the comparative chart on the basis of the figures mentioned in the documents. 27.3 PW-44 Sh. Shailender Sharma while working as Asstt. Director, DRI, in 1990 was in charge of the investigation of DRI in the present matter. He deposed that the chart Ex.PW44/1 was prepared on the basis of the documents seized from accused No.3/M/s B. L. Marketing Services Pvt. Ltd. and from GB Pant Hospital. In his cross examination, he deposed that the chart Ex.PW44/1 pertains to the items regarding which difference was found in the invoice price and the actual quotation recovered from CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.45 of 85the residence/ office of the accused persons. He also deposed that the chart pertaining to the other items was sent along with the show cause notice. He also deposed in his cross examination that the documents on the basis of which the chart Ex.PW44/1 was prepared were mentioned on the top of the chart and that he does not remember if the documents pertaining to the price list at point A in Ex.PW44/1 were given to the CBI. No supporting documents on the basis of which such 'comparative chat was prepared has been brought on record. He admitted in his cross examination that all the articles/equipment in the present case were supplied by the foreign based firms/companies and that he made enquiries about the prices quoted by these foreign based firms/companies regarding the said articles/equipment. He went on to depose that he did not give any document to the CBI mentioning about the persons from whom he made the enquiries, regarding the prices quoted by the foreign suppliers. He also admitted in his cross- examination that he had not been shown the price list on the basis of which, the chart Ex.PW44/1 was prepared by him and that the same was prepared by the investigating team, the name of the members constituting it, he did not remember. He also admitted that the chart Ex.PW44/1 does not bear signatures of any person who prepared it.
27.4 PW-35/Dr. Sudarshan Kumar Khanna who retired as Director, GB Pant Hospital in 1997 and was HOD, CTVS during 1989 in his Cross examination on being shown AT-38, 34, 40, 108, 119, 127, 165, 205 & 210 deposed that he cannot comment on the CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.46 of 85price of the equipment supplied through these ATs i.e. if they were more or less than the market price.
27.5 PW-37/Dr. Marry Abraham who was posted as Assistant Professor, Anaesthesia in the year 1998 at GB Pant Hospital, in her cross examination deposed that she had no idea about the cost of items/equipment/accessories as mentioned in AT-34, 147, 97, 264, 121, 165, 181, 237, 299 and 925. PW-39/Dr. Mrs. Ramesh Arora, in her cross-examination stated that she had no idea about the cost of the equipment/accessories mentioned in AT-119, 224 and 404 that were put to her in examination in chief.
27.6 PW-13/Dr. M. Khalilullah, in his cross-examination, admitted that normally warranty of one year is sought in respect of the medical equipment, supplied to the hospital, however, the medical equipment supplied by M/s B L Marketing in the year 1989, were to be maintained for over three years and also included installation. He also deposed that the price/value quoted by the supplier like M/s B. L. Marketing Services Pvt. Ltd. may be at a higher side, as apart from the cost of the equipment/material, it also included the extended warranty of three years and the maintenance during the period. Further, that M/s B. L. Marketing Services Pvt. Ltd. may have installed equipment supplied by the firm in the various departments of GB Pant Hospital. 27.7 PW-2 Sh. DSN Murthy has deposed that, as regards commercial terms and conditions, the foreign principal / Indian Agents usually accepts DGS&D standard terms and conditions and if not then it is prevailed upon them to accept their terms and CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.47 of 85conditions. He deposed that when the tenders are received, the DGS&D examines the acceptability of the price or otherwise in reference to proforma invoice. So, it is possible that the reference point i.e the proforma invoice, itself contains a higher price for the particular equipment/article then the attempt/efforts for negotiations by the DGS&D shall be restricted. DGS&D may receive such a high price in the proforma invoice itself that despite best of his negotiations, the agreed price might be much higher than the actual one. But as has come in evidence that the indents along with PAC and the proforma invoice travels through many hands and has to be scrutinized by purchase committee and the Technical Approval Committee, having representation from the Finance wing as well. The proforma invoice must have been seen while sanctioning the budget allocation. If the same was overvalued then where was the check point for assessing the same. If the article was a proprietary one then there was no option by the GB Pant hospital but to call the invoice from the Indian Agent of that particular manufacturer only, in this case being M/S B. L. Marketing Services Pvt. Ltd. That being the case there is no other option for the GB Pant Hospital but to accept the same and to send it further for approval by the Committees constituted for its examination until it reached DGS&D for the purpose of floating tender and negotiating upon the prices. It has not come in evidence if the prices given on the proforma invoice could also be negotiated. It was a procedure to call for proforma invoice for assessing the availability of funds for placing the orders.
CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.48 of 8527.8 If the prosecution wishes to convince the Court regarding prices of equipment being exorbitant then at least some yardstick with which the same can be ascertained should have been brought in evidence. Just giving a general statement that accused no. 3/M/s B. L. Marketing Pvt. Ltd was supplying same equipment to other institution /hospital at a lesser price would serve no purpose. If it was then the details of such hospital/institution should have been submitted and the concerned person with the relevant records should have been examined. It is not the case of the prosecution that such equipment had some MRP over the same. Even MRP of an article is negotiable. And the 'freebies 'like extended warranty, installation, demonstration etc that comes with a particular equipment also determines its final price. One may choose to sell a product at MRP with some freebies and at lesser price excluding those.
27.9 It is not in dispute that the equipment/articles that were supplied by accused No.3/ M/s. B. L. Marketing Services Pvt. Ltd., apart from given extended warranty of 36 months also included the following:
a) Demurrage charges paid by the firm
b) Free installation
c) Supply of free stabilizers
d) Pre-tender service and free training regarding use of equipment
e) Deportation of percussionist during surgical operation Thus, these additional services/features are bound to be at some additional costs and as such, cost of a particular CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.Page No.49 of 85
article/equipment for two different institutions who may choose to have or not to have such features/services, cannot be identical. 27.10 Its beyond understanding that how prosecution wishes this court to rely upon oral statements of witnesses which are vague and general on the aspect of pricing The allegations against the accused persons is that the equipment were either not required or if required then more than the required quantity was ordered. It means that the equipment/articles that have been procured through ATs in question were not used by the hospital for the first time. If that was the case it was easier for the IO to compare the prices of the equipment /articles with those that were procured earlier after taking into consideration the general inflation. No evidence has been led by the prosecution to show that the proforma invoice contained inflated figure which could have been done by obtaining previous invoices that were sent earlier and comparing them. But as the record speaks, it was left out. In essence there were various means and yardstick to prove the exorbitance in the prices but no efforts were done in that direction.
27.11 Moreover, in the document relied upon by the prosecution i.e. D-196/197, there is a noting dated 17.10.1993 of SDE(K), Enforcement Directorate which is worth consideration.
" M/s B.K.Marketing.
Ref: ADE's note, dated 22.09.1993 (Placed below).
(i) What is the evidence, if any, to suggest that the imported goods were overinvoiced (Include any evidence gathered by DRI).
CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.50 of 85COMMENTS Ingredients to establish over-pricing of exports are mostly on account of two sets of invoices or correspondence exchanged between importer and the foreign principle with specific instruction of over- pricing, but in this case, no such evidence regarding over-pricing of import of medical equipment was noticed by this office. The DRI has also not forwarded any such evidence which show that M/s. G.B.P. Hospital/DGS&D are engated in over-pricing of the said medical goods imported by them.
(ii) Is there anything to indicate that either the Hospital or DGS&D were aware of the overpricing. If yes, the nature of the evidence.
COMMENTS DGS&D did not look into the aspect of pricing of the goods very much in view of the fact that the goods imported were P.A.C. items (refer not on paged 7 to 12/NS). Hence there ppears to be no evidence available with DGS&D to show that there was any over pricing in their knowledge. As regards, GBPH, they also do not appears to have any evidence regarding overpricing of the goods in view of the fact that the goods are approved by the technical Committee. consisting of secretary (Medical) Jt. Secretary, Dy. Secretary, Finance Directors and Medical Supdt. refer note on page 7-12/NS).
(iii) What was the commission receivable and actually received by the various indenting agents when did CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.51 of 85commission payments become due and when were they received. Are any amount still outstanding indentwise. COMMENTS In this case, there is not written agreement between the Indian indenting Agent and his foreign pricnipal regarding the commisison/sales promotion expenses, which could indicate the percentage of the amount due from the foreign principal by the Indian Agent, indent wise, in the absence of any written agreement, it is difficult to come to any conslusion regarding the quantum of money due from the foreign supplier. However, during the course of interrogation, it ws revealed that an amount of Rs.33,90,991/- was receivable by the said company which was received by M/s. B. L. Marketing through banking channels, as Sale Promotion Expenses.
(iv) Is there, anything to indicate that commission in this case, were over invoiced/vis-a-vis the standard business and the difference COMMENTS In the absence of any written agreement between the indenting agent and foreign supplier, it is difficult to prove that the commission was inflated to the extent of commission / service charges / sales / promotion etc., due/received from the foreign supplier. However, the DRI FORWARDED SOME DOCMENTS OBTAINED BY THEM FROM U.S. Customs which show that the price of the medical equipments imported by M/s. GBP Hospital/DGS&D from USA was inflatedby the Indian indenting Agent which resulted in over-pricing the price CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.52 of 85of medical equipment, However M/s B.L.Marketing claimed that the sale promotional expenses received by them was on account of services provided by them to their foreign principals. "
27.12 Also, noting dated 24.02.1995 of Director of Enforcement/ED is also worth reproducing here:
"As I read this file, there has not been very much investigation in this case. We should address ourselves to the following aspects:
(i) The offence of over-invoicing can only be committed by the importer i.e.G.B.Hospital/ DGS&D. The Indian agent of the foreign supplier can,atmost, be an abettor to the substantive offence. Why has this investigation been carried out only against the Intenting Agent.
(ii) The way the notes read, one is required to believe that no one in India was responsible for checking the reasonableness of the price. While the Committee officials may be finally approving the purchases, this is on the basis of the proposal(covering technical and commercial aspects) submitted by the hospital. We should try and obtain copies of the proposals which were submitted to the Technical Committee of the Union Territory which approved the purchases.
(iii) If the imports were over invoiced, surely this was not done for the benefit of the Indenting Agent. It appears that the investigator has not at all investigated the beneficiaries.
CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.53 of 85(iv) The DRI is also investigating some aspects of these transactions. We should satisfy ourselves that we have all the evidence which is available on their files. What is the result of the DRI's investigation?
We should examine the aspects mentioned above." 27.13 In response thereto, further noting dated 08.03.1995 by the concerned Officer is reproduced as under:
(i) In this case, the enquiries were conducted by the Delhi Zonal Office as well as H.Qrs. Office against the Indenting Agents, but no prima facie case was established against them by Delhi Zonal Office as well as Hqrs. Office (closed files of Delhi Zonal Office against the Indenting Agents are placed below for perusal.)
(ii) As per records, it appears that enquiries with the DGSD/DRI were also made, but no evidence forth came from them also, which shows no violation of FERA had taken place regarding over-
invoicing of imports of medical equipment. (Main file of M/s. G.B. Pant Hospital is placed below for perusal pl.)
(iii) The photo copies of the documents received from DRI also do not whow that G.B.Pant Hospital in over- invoicing of medical equipments by them.
(iv) Correspondence exchange by DRI with G.B. Pant also do not produce any evidence which show FERA violation."
CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.54 of 8527.14 Hon'ble Punjab and Haryana High Court in the case Sardari Lal Vs. State of Punjab reported in 2003 Crl.L.J.383 has observed in para 8:
"Prosecution should have produced the proprietor of some firm to state that they were selling such tools in the year 1968-69 at a rate which was lower than the rate quoted by Sardari Lal and accepted by Sham Behari Lal. If that had been done, it could have been said that criminal intent might have been there in the mind of Sardari Lal".
27.15 Entire Payments were made by the Chief Controller of Accounts, Department of Supply to the foreign suppliers(For equipment/article) as well as the Indian agent(For Commission) directly. Difference in the price, in the form of kickbacks would have received by the Indian agent from the said foreign supplier but no such flow of amount has been proved in evidence. 27.16 Letter Rogatory as per Sec 166(A) Cr.P.C were got issued stating that foreign investigation is being conducted at USA, Singapore and Japan and it has been mentioned in the chargesheet that if any evidence comes then the same shall be filed before the court. An application dated 24.09.2009 was filed by Inspector Jale Singh, CBI for placing on record a set of documents received from US department of Justice Criminal Division, Office of International Affairs, 1301, New York, Avenue, NW Washington DC - 2005. Along with the letters, a certification of absence/nonexistence of business records has been annexed stating that the relevant records are not available. No other documents CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.55 of 85pertaining to letter rogatory has been filed on record despite keeping the investigation open. Nothing has been done subsequently to bring on record any document from the foreign manufacturers from where the equipment/articles were procured through accused No.3/M/s. B. L. Marketing Services Pvt. Ltd. highlighting the difference in the prices.
27.17 I am in consonance with the submissions of Ld. Defence Counsel that the exorbitance of the price was required to be proved as a fact on the basis of the person/documents concerned and that in this case no such person/original document have been produced or proved according to law.
27.18 Thus the prosecution failed to bring on record any evidence to conclude that the equipment/articles supplied to GB Pant Hospital by accused No.3/M/S B. L. Marketing were overpriced.
WEATHER EQUIPMENT WERE ACTUALLY SUPPLIED AND ULTIMATELY PUT TO USE
28. It is not the case of the prosecution that any of the articles for whom the indents were raised, PACs were issued and payments were made were not supplied.
28.1 As per the chargesheet, the following equipment were procured through the indents in question:
1 E1-2/215/166/1.12.88/BLMS/COAD/ Computer monitors and Accessories 034 dt. 6.4.89 CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.Page No.56 of 85
2 E1-2/215/12424/13.1.88/BLMS/ Rascal Raman Scattering Analysis Ana COAD/82/035 dt. 6.4.89 esthesia/Respiratory Gas Monitor 3 E1-2/215/165/1.12.88/BLMS/COAD/ Accessories of PFT System, Sensor Medics 038 dt. 6.4.89 Energy Measurement System with Pulmonary function capabilities 4 E1-2/215/133/27.10.88/BLMS/ Kimura Ventilators of different models COAD/82/040 dt. 6.4.89 5 E1-2/215/213/9.2.89/BLMS/COAD/ Respoi sunograph-Computerized Non-Invasive 82/085 dt. 6.7.89 Respiratory Monitor and Screening System for sleep disorders 6 E1-2/215/026/20.6.89/BLMS/COAD/ Computer Monitor and Accessories 82/108 dt. 3.8.89 7 E1-2/215/019/15.6.89/BLMS/COAD/ Accessories/Spares 1dt for cardiotomy line for 82/119 dt. 22.8.89 Main Heart Lung Machine through Oxygenator & Blood Gas Analyser to patient 8 E1-2/215/018/15.6.89/BLMS/COAD/ Accessories/spares 1dt for Blos Blood 82/121 dt. 22.8.89 Transfission pump and pressure device in CTVS procedure includes Lumen CVP Catheters Kits 9 E1-2/215/038/12.7.89/BLMS/COAD/ Spectramed Physiological Pressure 82/123 dt. 6.9.89 Transducers 10 E1-2/215/022/15.6.89/BLMS/COAD/ Accessories/spares of Gould Bedside 82/125 dt. 6.9.89 Monitors/mainframe for operation theater and intensive care units CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.Page No.57 of 85
11 E1-2/215/036/12.7.89/BLMS/CAOD/ Transcend II Gas Monitoring Station with 82/126 dt. 6.9.89 Recharge Base and Spare Galvimax battery pak 12 E1-2/215/039/12.7.89/BLMS/CAOD/ Spectramed Heart Lung Packs 82/127 dt. 6.9.89 13 E1-2/215/062/7.9.89/BLMS/CAOD/ Rascal Ramen Scattering Analysis 082/147 dt. 20.9.89 14 E1-2/215/061/30.8.89/BLMS/CAOD/ Accessory/spares for Bed Side Monitoring of 82/155 dt. 11.10.89 Invasive Pressure with Gould Monitors 15 E1-2/215/063/7.9.89/BLMS/CAOD/ Kimura KV-3 Lung Ventilator with KA-300 82/165 dt. 9.11.89 exclusive Air Compressor 16 E1-2/215/079/28.9.89/BLMS/CAOD/ Computer Monitor Main Frame and its other 82/181 dt. 8.12.89 Accessories 17 E1-2/215/088/9.10.89/BLMS/CAOD/ Rascal Ramen Scattering Analysis 82/187 dt. 20.12.89 Anaesthesia/Respiratory Gas Monitor 18 E1-2/215/121/16.11.89/GBP/BLMS/ Accessories for Ventilator/Respirator COAD/82/205 dt. 4.1.90 19 E1-2/215/122/16.11.89/GBPH/ Spectramed DTX transducer kit preassembled BLMS/CAOD/82/209 dt. 9.1.90 & sterile and Spectramed Pressure Monitoring Kit Preassembled & Sterile 20 E1-2/215/118/16.11.89/BLMS/ Spectramed Heart Lung Packs for use with CAOD/82/210 dt. 9.1.90 different oxygenators 21 E1-2/215/120/16.11.89/GBP/BLMS/ Spectramed Hemopro Hemodynamic Oximetry CAOD/82/224 dt. 17.1.90 Monitor along with other Accessories CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.Page No.58 of 85
22 E1-2/215/119/16.11.89/GBP/BLMS/ Spectramed CVP Catheter Kits CAOD/82/237 dt. 17.1.90 23 E1-2/215/124/16.11.89/GBP/BLMS/ Spectramed Physiological Pressure CAOD/82/240 dt.22.1.90 Transducers for use with different make of monitors 24 E1-2/215/125/16.11.89/GBP/BLMS/ Spectramed Diaphragm Domes for use with CAOD/82/254 dt. 31.1.90 different makes of Transducers and Spectramed Subciavian/Jugular Catheter 25 EI-2/215/197/24.11.89/GBP/BLMS/ Rascal-Raman Scattering Analysis Ana-
CAOD/82/264 dt.31.1.90 eesthesia Respiratory Gas Monitor with Accessories 26 EI-2/215/200/29.12.89/GBP/BLMS Spectramed DTX Pressure CAOD/279 dt. 7.2.90 Transducer Kit 27 EI-2/215/202/29.12.89/GBP/BLMS Accessories of Central Monitoring Station which includes /ories/COAD/82/280 dt.7.2.90 Bed Side Monitors Four Channels for Monitoring of ECG, Temp. Invasive Pressure and Non Invasive Blood Pressure. It also offers Oxygen Saturation 28 EI-2/215/201/29.12.89/GBP/BLMS Accessories of Bed side Monitors COAD/82/281 dt. 7.2.90 which includes Pressure Monitoring Kit-Custom Kit Dual Line Kit for use with spectramed model P23XL/ID CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.59 of 85 reusable Transducers 29 EI-2/215/199/29.12.89/GBP/BLMS Fastrac, Oxyshuttle Pulse Oximeter along COAD/82/282 dt. 7.2.90 with Sensors 30 EI-2/215/198/29.12.89/GBP/BLMS Accessories/spares for Ventilation CAOD/92/299 dt. 19.2.89 Respiratory Equipments 31 EI-2/215/253/5.2.90/GBPH/BLMS Spectramed Physiological Pressure CAOD/82/391 dt. 20.3.90 Transducers for use with different Monitors and Transducer Inter face cable 32 EI-2/215/245/1.2.90/GBP/BLMS Accessories of Existing Besdide Monitor COAD/82/392 dt. 20.3.90 for Post Operative Intensive Care 33 EI-2/215/252/5.2.90/BLMS Spectramed DTX Transducer Kit, CAOD/GBP/82/403 dt. 5.4.90 Spectramed Pressure Monitoring Kit & Spectramed Diaphragm Domes 34 EI-2/215/245/5.2.90/BLMS Kimura KV-3 Lung Ventilator with KA 300 CAOD/GBP/404 dt. 5.4.90 Exclusive Air Compressor 35 EI-2/207/414/17.3.87/BLMS One ECG, Two Pressure and one dual CAOD/82/925 dt. 24.6.88 temperature module each. 2 ECG leads and 2 temperature leads extra with each monitor, Transducers, Spectramed Pulse and Oxygen Saturation Monitor with Finger and Eariobe Probes Spectramed Hemopro Oxygen Oximeter and other accessories 36 EI-2/215/039/16.6.88/BLMS Heart Lung Pack for use with different CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi. Page No.60 of 85 CAOD/82/955 dt. 6.9.88 types of Oxygenators 37 EI-2/215/024/2.6.88/BLMS Transcend II Cutaneous Gas Monitoring COAD/82/962 dt. 20.9.88 Station along with other items
28.2 None of the witnesses examined by the prosecution has deposed that any of the aforementioned equipment/articles were not received by the GB Pant Hospital. None of the witnesses, so examined by the prosecution have deposed that aforesaid articles/equipment were not required. In fact, there are evidences to the contrary and PWs have stated that the equipment/articles were received, installed and were functional. The relevant testimonies are discussed hereinafter:
28.3 PW-30/Sh. Mukesh Kumar who in the year 1990 was posted as Pharmacist, to assist Sh. Hari Omparkash Gupta, the then Storekeeper, Surgical Equipment Store, GB Pant Hospital, Delhi deposed that he was asked by Sh. Hari Omparkash Gupta to get the items/material belonging to M/s B. L. Marketing Services Pvt. Ltd.
unloaded at M R D Blocks, LNJP at 5th and 6th floor in verandah outside the surgical store. He deposed that the said articles were brought in two trucks and were got unloaded. In his cross examination he stated that the space for storing articles/equipment in the main store of GB Pant Hospital was not sufficient. PW-3/Sh. MPS Bali, Store Officer, GB Pant Hospital, who worked there between 1991-1993 in his cross-examination by Ld. SPP/CBI deposed that Mansa Ramani Committee physically verified the store, received through DGS&D and most of the stores was found.
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Page No.61 of 85On being cross-examined by Ld. Counsel for the accused, he deposed that physical verification by the members of Mansa Ramani Committee, whom he assisted was not carried out as per the ledgers but as per Accepted Tenders (ATs) by DGS&D and most of the articles were available. It is worth mentioning that prosecution has not proved the copy of the report of the Mansa Ramani Committee 28.4 PW-24 Dr. R. C. Aranya in his examination in chief deposed that during 1998-1999, he was head of the department, Gastro Intestinal Surgery, GB Pant Hospital. He deposed that as HOD he did not indent the items mentioned in AT-34 (D-43), AT-119 (D-
49) and AT-121(D-50). He deposed that the items mentioned in AT-34 were received in his department from the store of the hospital but not the items mentioned at AT-119 and AT-121. He deposed that he never signed any PAC. In his cross-examination he admitted that he had used the items mentioned in AT-34 and denied having used items mentioned in AT-119 and AT-121. However, in his further cross-examination, he deposed that Cather Introduce Kits, Cather for Subclavian Cathers and Pressure Monitoring Lines as shown in AT-119 at page 17 and Cather Kits as shown in AT-121 at page 68 were used in the hospital. He lastly deposed that since the GI Department was a new department, there was no occasion for indenting the items and they used to get the items required from the store.
28.5 PW-25 Dr. G.C. Munjal denied his signatures over PAC Ex.PW2/29 (D-47). In his cross-examination, he deposed that one CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.62 of 85equipment Respio-monograph under AT-085 was issued to his department.
28.6 PW-27 Dr. Meena Gupta, who was Head of the Department, Neurology GB Pant Hospital during 1988-1990, after being shown file D-89, containing cyclostyled copy of AT at page No.27 to 33 (Ex.PW13/57) deposed that at page No.29, the items were supplied is Transend II Gas Monitoring Station with Recharge Base and a spare Galivimax Battery Pack 220 Volt/50 Hz with Transend Card with two each spare Gas Cylinder. She stated that the said items had been supplied by the firm while packing list Ex.PW14/DA, vide item no.1.
28.7 PW-29/ Dr. Sushil Kumar who worked as Professor and Director, Professor in Neurosurgery department of GB Pant Hospital between 1987-1992 deposed that the reasons given in the PAC Ex.PW4/A, signed by Sh. P. K. Bannerjee, Storekeeper, GB Pant Hospital are correct. He further deposed that many companies were manufacturing indented items mentioned in the PAC Ex.PW4/A. However, in his cross examination, he deposed that Kimura brand Ventilators are propriety items which are not manufactured by any other firm.
28.8 PW-31/Ms. Pansy Chauhan, who was Nursing Sister in the year 1990, OT-II, GB Pant Hospital, deposed that on promotion she had taken over the charge of some eqipmetns/articles i.e. Gold Monitor IM 1000, Care Monitor MB 5000, Computer Monitors Model No.5000, MH 1700 and MH 5000 vide voucher dated 20.04.1990, one Computer Monitor Model No.CMI BM 5000 vide CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.63 of 85voucher no.41 and one Spectramed Plus Oximeter Model 1470 Sl.No.1400002 vide voucher no.77. in her cross-examination, she deposed that this equipment was already in regular use in OT II before she joined and that this equipment are essential equipment during neurosurgery and were used to be received from the surgical equipment Store of the GB Pant Hospital. She also deposed that whatever equipment were installed in the neurosurgery department by the firm, were functioning properly. She also stated that there was other equipment beyond those stated by her in her examination in chief.
28.9 PW-36/Dr. Deepak Tempe, during his testimony was shown AT-123, 299, 155 and 282. In his cross-examination he admitted that the equipment/accessories procured through these ATs were used by Anaesthesia Department in GB Pant Hospital. 28.10 PW-37/Dr. Marry Abraham was posted as Assistant Professor, Anaesthesia in the year 1998 at GB Pant Hospital, in her cross examination, deposed that most of the equipment except gas monitor procured vide AT-34, 147, 97, 264, 121, 165, 181, 237, 299 and 925 were used in Anaesthesia department. Further that the gas monitor was installed for demonstration but was returned after two days due to malfunctioning.
28.11 PW-39/Dr. Mrs. Ramesh Arora deposed that the equipment i.e. Spectramed Hemopro Hemodynamic Oximeter procured vide AT-224 was used in their Cath Lab for monitoring cardiac output for research purposes.
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Page No.64 of 8528.12 PW-3/Sh. N. P. S. Bali, Store Officer, GB Pant Hospital, who worked there between 1991-1993 in his cross-examination by Ld. SPP/CBI deposed that Mansa Ramani Committee physically verified the store, received through DGS&D and most of the stores was found. On being cross-examined by Ld. Counsel for the accused, he deposed that physical verification by the members of Mansa Ramani Committee, whom he assisted was not carried out as per the ledgers but as per Accepted Tenders (ATs) by DGS&D and most of the articles were available.
28.13 PW-11/Smt. Noora B Singh, retired Nursing Superintendent GB Pant Hospital on being shown undated challans of M/s B L Marketing Services Pvt. Ltd. Ex.PW11/A-1 to A-3, delivery challan Ex.PW11/A-4 and undated slip Ex.PW11/B deposed that vide these, she received items mentioned in the challan which included Double Lumen CVP Catheter-800 and Tripple Lumen Catheter- 800. She, in her cross examination, went on to say that whatever items/equipment she received, all those items/equipment were required in the Operation Theatre. Further she deposed that all the equipment which were supplied by M/s B. L. Marketing Services Pvt. Ltd. were checked by doctor and only after satisfaction they were installed in the OT. She admitted that whatever items/ equipment were received by her, were checked for quality and quantity.
28.14 PW-13/Dr. M. Khalilullah, in his testimony deposed that the majority of the equipment purchased by the hospital, during that period were required, however, some purchases were made CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.65 of 85without any requirement and some of the quantity was more than requirement. Further, in his cross-examination he stated that he did not remember whether the abovesaid equipment/articles were used in the hospital. He again said that these articles might have been used in the hospital by various departments. He deposed that he was incharge of Cardiology department wherein various equipment were installed by M/s B. L. Marketing Services Pvt. Ltd. and they functioned appropriately.
28.15 PW-1 Dr. Devesh Gupta in his testimony deposed that 12 Rascel Machines were not issued in any department on the date of recording of his statement under Sec.161 Cr.P.C. Further that out of three medical instruments received from Hari Om Gupta, one instrument was issued to Gastro department in 1994 and balance two instruments were lying in the store till the date of recording of his statement under Sec. 161 Cr.P.C. Ld. P.P./CBI has laid emphasis on these statements of PW-1 Dr Devesh Gupta asserting that this proves that the equipment/article purchased through the ATs in question were not required. However, in his cross examination, the witness deposed that he did not remember the date on which his statement under Sec. 161 Cr.P.C. was recorded. The witness deposed that neither could he admit nor deny that after the raid of DRI, somewhere in 1990, the entire stock i.e. consumable and non-consumable items of medical equipment in the G B Pant Hospital was sealed and as such the said stock was not issued to any department. Further, there is no investigation on the aspect as to why this equipment were not issued to any CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.66 of 85department. Nothing has been brought on record as to where all i.e. in which department, the particular article/equipment that were received through the ATs in question were issued/used. The status of the equipment as mentioned in the charge-sheet has not been detailed therein. As such, just on the basis of statement of PW-1 Dr. Devesh Gupta that few articles/equipment were lying in the store till his statement under Sec. 161 Cr.P.C. was recorded, the Court cannot hold that this equipment was unnecessary for use by the GB Pant Hospital. Pursuant to recording of such statement, the IO should have investigated the reasons for the same, including whether subsequently also such equipment/machines were procured by the hospital.
28.16 Again a general statement by some witnesses including that of Dr. M. Khalilullah that "some purchases were made without any requirement and some quantity was more than requirement" serves no purpose in absence of the exact list of the equipment /articles that were NOT required or purchased beyond requirement. It cannot be expected that exact number of items/articles are ordered. Just because a couple of articles out of many ordered remained unused can be allowed to be seen as a criminal intent on the part of the purchaser department.
28.17 The contention of Ld. P.P./CBI regarding 'dumping' of medical equipment/items by accused No.3/M/s B. L. Marketing Services Pvt. Ltd. in the veranda outside the stores located at 5 th and 6th floor, LNJP Hospital, Delhi for the purpose of proving that the said articles were not required, is misconceived. In the Order CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.67 of 85dated 27.07.1994 of Custom, Excise and Gold (Control) Appellate Tribunal, New Delhi, which was proved as Ex.D2W-1/1, the reply of GB Pant Hospital has been discussed. As per the reply, it is stated that there is paucity of space on account of necessary expansion of services to the patients and as such, some of the items could not be taken within the hospital premises. The space crunch in the hospital premises is not disputed. As such, just because the equipment/articles were forced to be kept at a non-designated place, it cannot be said that those were not required/unwanted. No evidence has come on record that the articles for whom the PACs were issued, indents were raised and payments were made were not supplied.
The prosecution, thus, failed to prove its case in respect of the equipment/articles being excessively purchased and/or that the any of the purchased articles/equipment were not delivered/used.
ALTERNATE SUPPLIERS/MANUFACTURERS OF THE EQUIPMENT/ARTICLES PROCURED THROUGH ATs IN QUESTION
29. Another contention under consideration is whether the equipment/articles supplied by accused No.3/M/s B. L. Marketing Services Pvt. Ltd. were available through other manufacturers as well. In this aspect, the testimonies of the following witnesses are material. It will ultimately reflect upon the stand of the prosecution that the PACs were wrongly issued.
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Page No.68 of 8529.1 PW35/Dr. Sudarshan Kumar Khanna was HOD of Cardiothoracic and Vascular Surgery (CTVS) during the relevant period. On being shown AT-38, 34, 40, 108, 119, 127, 165, 205 & 210, he mentioned about the equipment purchased vide these ATs and deposed that during the relevant period, there were other manufacturers available who could make the said equipment. However, in his cross examination he took a U turn and stated that he had no knowledge if the said equipment/accessories were being manufactured by any Indian firm or not at the relevant time. He admitted that whenever proprietary articles/equipment were required to be purchased from a particular firm/company, then the same could be purchased from that particular firm/company and not from any other company, as the other would not be having the name and Make of the said company.
29.2 PW-42 Dr. N.G.L.Joseph worked at GB Pant Hospital between 1983 till 1994 in the Anaesthesia Department, on being shown AT-209, corresponding PAC Ex.PW13/23, AT-962, corresponding PAC Ex.PW42/1, AT-126, corresponding PAC Ex.PW2/66, AT-403, corresponding PAC Ex.PW2/188, AT-391, corresponding PAC Ex.PW14/110, AT-254, corresponding PAC Ex.PW42/4, AT-281, corresponding PAC Ex.PW2/165, deposed that reasons mentioned in the PACs are incorrect and vague. Further, that the indent article is not a proprietary article and is available in the open market and manufactured by many medical equipment manufacturers. However, in his cross-examination, he deposed that he cannot tell the name of any Indian Company which CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.69 of 85might be manufacturing these items and pleaded his ignorance on many of the items that did not pertain to his department. All the accessories/equipment purchased through aforesaid ATs were put to him in cross examination, and he could not tell the name of even a single Indian firm that used to manufacture any of those items. 29.3 Moreover, as discussed above that GB Pant Hospital, at the relevant time was the only super speciality Hospital after AIIMS, the purchases could not be made in secrecy, in particular of the equipment that were manufactured by foreign companies only. The tentative requirement either by running out their shelf life or by upgradation of the equipment, procurement of such equipment must be in knowledge of other competitors as well if there were any. No complaint is alleged to have been made by any such competitor company in any aspect. Further, if we refer to the statement of PW-21/Sh. Ved Prakash Sharma that the accused No. 2 supplied such equipment to other hospitals/institutions as well then it would have been prudent that those hospitals/institutions should have been contacted to know as to why they chose to place order through accused no.2 i.e. because of lesser price or if the said equipment was manufactured by none other. It was for the investigating agency to discover and prosecution to prove that there were other manufacturers of the same equipment available which they have failed to.
Thus, prosecution miserably failed to prove that the equipment/articles supplied by accused No. 3/M/s B.L. Marketing Services Pvt. Ltd. were manufactured by other manufacturers as CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.70 of 85well and as such the PACs issued with the indent cannot be said to be falsely given despite them being allegedly issued by an unauthorised person.
30. Now, after holding that the prosecution failed to establish that the equipment/articles supplied by Accused no. 3/M/S B. L. Marketing Services Pvt. Ltd were overpriced or were ordered without requirement, the same is analysed vis- a vis the essential ingredients that constitutes the offences for which the accused have been put to trial.
31. As per the prosecution case only, the cost of the Equipment/article supplied by the foreign supplier of which accused No. 3 was the Indian Agent was Rs. 8,11,70,512/- and the commission charged by the Indian Agent i.e Accused No. 3 was Rs. 58,50,728/-, totalling Rs. 8,70,21,240/- Since it has not been proved if any equipment/article for which ATs were issued in favour of accusedNo.3 /M/s B. L. Marketing Services Pvt. Ltd. were not delivered and were not overpriced, there arises no question of the Govt of India being cheated for the entire paid amount of Rs. 8,70,21,240/- since the equipment/articles were indeed delivered and commission was charged as per prevalent practice. No evidence has been brought on record that accused No. 3/M/s B.L. Marketing Services Pvt. Ltd. got the tenders without following rules and procedure and on any inducement on its behalf to the DGS&D for placing of orders. Single Tender Inquiry was CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.71 of 85resorted to and tenders were accepted as per norms and guidelines of the DGS&D and the payment against equipment/articles was made directly to the foreign suppliers by the Chief Controller of Accounts, Department of Supplies. It is also worth mentioning that PW-2/Sh. D.S.N Murthy who dealt with the relevant files in DGS&D in his cross examination deposed that he was not contacted by any person of accused No. 3/M/s B. L. Marketing Services Pvt. Ltd. during the processing of the files.
32. By failing to prove the exorbitance in the prices of such equipment/articles, the actual pecuniary loss, if at all to the Govt. of India and consequently the allegations of cheating, could not be established.
33. Overpricing of equipment/articles, their non requirement, issuance of false PACs were the only connecting link (as alleged by the prosecution) between Accused No. 2/Sh.Sunil Aggarwal and Accused No. 3/M/s B. L. Marketing Services Pvt. Ltd. on one side and Accused No.1/Dr.O.P Jain and Sh. P. K. Bannerjee on other which now stands broken.
In State (NCT of Delhi) vs. Navjot Sandhu , AIR 2005 SC 3820 it was observed as under:
"A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy."
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Page No.72 of 85In L.K. Advani Vs CBI reported in 1997 Cr.L.J 2559 in Para 91 which has quoted as under:-
"91. There is another aspect in the matter. The prosecution must prove the factum of the conspiracy by evidence other than the disputed evidence i.e. the diaries and the loose sheets which have been placed on the record of this Court. It has been observed above that there is no such evidence. The alleged entries relates to past facts. The alleged entries must have been made after the disbursement. Hence they cannot be said to have been made in execution of the common intention of the conspiracy."
34. The prosecution was also required to establish the meeting of minds of Accused No. 2/Sh. Sunil Aggarwal & Accused No. 3/M/S B.L Marketing Pvt. Ltd. with Accused no. 1/Dr.O.P Jain and Sh. P. K. Bannerjee, (since expired) for the purpose of getting offences of criminal misconduct and of the offence of cheating . The observation of Hon'ble Supreme Court in State (Govt. of NCT of Delhi v. Nitin Gunwant Shah (2016) 1 SCC 472 is relevant to be quoted here "17................This Court has time and again laid down the ingredients to be made out by the prosecution to prove criminal conspiracy. It is now, however, well settled that conspiracy ordinarily is hatched in secrecy. The court for the purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence."
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Page No.73 of 85However, while doing so, it must be borne in mind that meeting of mind is essential; mere knowledge or discussion would not be sufficient. Yet, the prosecution has failed to prove the evidence which establishes any prior meeting of minds of the accused.
"................Neither was any prior meeting of minds of the accused proved, nor was any action, individually or in concert, proved against any of the accused. Needless to say that the entire foundation of the prosecution story was never established."
In the judgment relied upon by the Ld. Defence Counsel, Hon'ble Supreme Court in the case Balkar Singh V. State of Haryana reported in (2015) 2 SCC 746 observed as under:
"31. It has been rightly noted by the trial court that while appreciating circumstantial evidence, the court must adopt a very cautious approach and record a conviction only if all the links in the chain of circumstances are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. It also noted that great care has to be taken in evaluating the circumstances and if the evidence relied upon is reasonable capable of two interferences, the one in favour of the accused must be accepted and the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of the guilt. Similarly, as regards the conspiracy, the trial court has rightly noted CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.Page No.74 of 85
that in order to prove the charge of conspiracy, it is necessary that the prosecution should prove the names of the place or places where it has hatched. We find that the abovesaid understanding of a case to be appreciated when it was based on circumstantial evidence clubbed with the allegation of conspiracy was perfectly noted by the trial court."
35. I am also in consonance with arguments of Ld.Defence Counsel that the prosecution was also required to lead any evidence or circumstance against the accused persons from which the 'physical manifestation' of the accused regarding conspiracy may be inferred. In Kehar Singh vs State, AIR 1998 SC 1883 , it was observed as under:
'272.... It is, however, essential that the offence of conspiracy required some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons in necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient......"
36. As argued by Ld. Defence Counsel, there is no direct/indirect evidence/circumstance from which it may be inferred that Accused No. 2/M/sB.L Marketing Pvt. Ltd and Accused No. 3/Sh.Sunil Aggarwal have abetted/ committed the offence punishable under Section 420 IPC r/w Sec. 13(2) r/w Sec.
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Page No.75 of 8513(1) (d) of the P C Act, 1988.The prosecution has again failed to show or indicate any such 'physical manifestation' on the part of A2 and A3 as required by law that they were members of the criminal conspiracy.
CONCLUSION
37. The investigation undertaken after registration of the present FIR was just superficial without aiming to reach at any just conclusion. Despite strenuous efforts by Ms.Bindu Ld. PP/CBI trying to convince the Court that the evidence against the accused persons are sufficient if not clinching on the basis of loads of documents contained in several trunks , which she dived into several times in the hope to get something for the prosecution. the prosecution seemed nowhere close to establish the chain of events on which it was relying to prove the offences against the acused persons on the basis of circumstantial evidence.No amount of reasoning could have overcome the inherent defects in the investigation.
38. Evidently the FIR was registered years after the alleged offences occurred, so possibility of getting any evidence like physical meeting of the accused persons was unlikely to be obtained. But other evidences like accused no. 3/M/S B. L. Marketing Services Pvt. Ltd., its sister companies or its directors obtaining kickbacks, if any from the foreign manufacturer and passing it to accused persons namely Dr. O. P. Jain and Sh. P. K. CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.76 of 85Bannerjee could have been investigated but there is no evidence on record to this effect.
39. The chargesheet reflected the opinion of the IO that 'They did it 'but the question that remains unanswered is 'How'? The sphere, within which investigation was conducted, was too limited and narrow. Role of many persons involved in the process was not investigated. The IO concluded that the offence was committed by the accused persons charge sheeted, but the chargesheet do not disclose as to how they were able to so it. How were they able to get those indents cleared from both the committees having high profile persons being their members. No questioning was done by the IO from director/Dr. M. Khalilullah who was the overall in charge of all the affairs pertaining to the GB Pant hospital, had regular correspondences with the DGS&D and was privy to both the committees.
40. As per the Chargesheet it is the Director who heads the purchase committee but as per testimony of Dr. M. Khalillullah, the Medical Superintendent i.e Dr. O. P. Jain was the given the additional task of Purchase Officer since that post was lying vacant for last many years. The prosecution did not place on record any such document which can be relied upon for the purpose of ascertaining as to who was heading the purchase committee. Besides that, the prosecution did not place on record any document regarding constitution of the purchase committee i.e who all were CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.77 of 85its members, agenda for consideration, minutes of any of such meetings etc.
41. As per the charge-sheet, M/s B. L. Marketing Services Pvt. Ltd. was incorporated during 1988, Directors being Sh. Jugal Kishore Aggarwal, Sh. Anil Aggarwal, Sh. Ajay Aggarwal and Sh. Anil Aggarwal. It is mentioned that Sh. Ajay Aggarwal and Sh. Anil Aggarwal resigned from the posts of Directors on 15.09.1990 and 15.04.1990 respectively and that all the policy decisions and other matters were actively decided and handled by Sh. Sunil Aggarwal and the remaining directors were sleeping partners. Apart from this, there is no evidence on record that except accused No.2/Sh. Sunil Aggarwal other were sleeping partners. Even certificate of incorporation of M/s B. L. Marketing Services Pvt. Ltd. has not been brought on record. Resignation of Sh. Anil Aggarwal and Sh. Ajay Aggarwal in the year 1990, makes no difference since the alleged transactions that were under investigation pertain to the period prior to the resignation. No reasons have been given as to why the prosecution was launched only against accused No.3/Sh. Sunil Aggarwal and roles of other Directors were not investigated.
42. It is not the case of the prosecution that Dr.O.P Jain and/or Sh. P.K. Bannerjee were having any mechanism that they could by pass the Purchase Committee and the Technical Approval Committee as well and straight away place indents before the CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.78 of 85DGS&D for the purchases. There is no evidence on record on the aspect as to how the Indents in question reached DGS&D for being processed. The mechanism of sending the Indents to DGS&D has not been brought on record. The file containing correspondences between DGS&D and GB Pant Hospital has not been brought on record. DGS&D must be having a mechanism to check the authenticity of the documents (indents here in) received by him for making purchases. It is neither the case of the prosecution that the indents received by the DGS&D for processing were not accompanied by the approval of TAC nor that the said approval of TAC was forged and fabricated. If the duo were in conspiracy, then Dr. O. P. Jain would have signed all the indents himself rather than letting majority of them being signed by Sh. P. K. Bannerjee as the same were prone of being identified by the committee why would Dr. O. P. Jain who as per Dr. M. Khalilullah was competent to sign the indents himself take the risk of letting Sh. P. K. Bannerjee sign them as all knew he was just a store officer and could have been caught?
43. PW-13/Dr. M. Khalilullah, who remained Director of GB Pant Hospital from 1988-1995 deposed that Dr. O. P. Jain was Medical Superintendent and was also designated as the Purchase Officer. Further, that only Purchase Officer was authorised to sign indents and not Sh. P. K. Bannerjee, store officer. If testimony Dr. M. Khalilullah is considered to this extent that accused/Dr.OP Jain was authorised to issue indents then there is no question of all the CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.79 of 85indents under consideration of being signed falsely and fraudulently. Interestingly, the prosecution has filed this case on the basis that PACs have been given dishonestly and falsely but the chargesheet has not been filed for commission of offence u/s 464 IPC. Moreover, the signatures of the accused persons were not even sent for their forensic examination and rather prosecution chose to rely upon the oral testimonies of Pws.
44. The Court fails to understand as to why the task of reconstructing the files was given to Dr. M. Khalilullah who was the Director of the GB Pant Hospital whose purchases were under scanner. Even if as per Dr. M. Khalilullah that Accused No. 1/Dr. O. P. Jain was the purchase officer, he admitted in his cross examination that the Director is responsible for overall financial/purchase policy of the hospital. He was the person who was a participant/member of both committees i.e the Purchase Committee as well as the technical approval Committee. As has come in evidence, all the documents that were collected for reconstruction of file were handed over to him for safe custody and were under his lock and almirah. There is no inventory of the papers handed over to him for reconstruction and the actual ones produced before the Court. The possibility of any document handed over to him and not produced in evidence cannot be ruled out, if at all documents were given to him.
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Page No.80 of 8545. The manner in which the Files were reconstructed and the manner in which the matter has been investigated, had itself sealed the fate of the case.
46. Prosecution has tried to prove this case on the basis of oral evidence rather than bothering to collect documentary evidence which was of much relevance in this case. If Dr. O. P. Jain and Sh. P. K. Bannerjee were the only persons responsible for placing indents of articles/equipment which as per the prosecution were not required then there would be no record of any such purchases having been recommended by the Purchase Committee and the Technical Approval Committee. The prosecution should have placed on record the details of all the meetings held by the Purchase committee and the Technical Approval committee including the agenda, say for a period upto preceding 3 years before the equipment/articles were supplied to GB Pant Hospital by accused No. 2. If story of the prosecution is to be believed then it would have proved that no such indents were placed before the committee for approval. And if the indents were placed before the committee for consideration, then it cannot be said that no one bothered to check as to what is being purchased. It is worth reiterating that the purchase committee consisted of all the Head of the departments who were member of the purchase committee. Even if the members may have forgotten to check the signatory of the indents but how could they skip the discussion over an equipment/article that pertained to their department only. Wouldn't CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.81 of 85it strike to them if they indeed placed any indent for procurement of that particular article/equipment? Let's assume that even that happened that the HODs left out seeing the signatory of the indents, left out hearing the discussion on the agenda in purchase committee but how could they not react when they indeed received that particular equipment/article for use. It should not be forgotten that the case was registered not on the complaint of any user department but years after when the equipment were supplied and were put to use. It is worth mentioning that Dr. M. Khalilullah, the then Director, GB Pant Hospital was part of purchase committee of GB Pant Hospital as well as that of Technical Approval Committee. If he could identify the signatures of Sh. P. K. Bannerjee on the PACs after 25 years, why could not he do that at the relevant time when the same were put before the committee for consideration. It must not be forgotten that it is not the case of the prosecution that the indents with PACs and proforma invoice were sent by the accused persons to the DGS&D directly.
47. PW-13/Dr. M. Khalilullah deposed that the need for purchase files and their reconstruction arose when it came to their knowledge that certain medical equipment had been purchased and still remained to be cleared from custom. He deposed that during the process of reconstruction of files, it was found that several indents were signed by Sh. P. K. Bannerjee under the stamp of Medical Superintendent without any authority. Still the present RC was registered on the basis of 'source information' and not at the CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.82 of 85instance of Dr. M. Khalilullah, the then Director of GB Pant Hospital.
48. Lastly, I also do not find any mischievousness, as alleged by the prosecution, in the letter Ex.PW2/217 purportedly written by Dr. O. P. Jain to Asstt. Director DGS&D in which request has been made to accept the indents on the PACs rendered to it. The said letter which otherwise has not been proved as per law is nothing but seems to be written in response of letter dated 21.03.1988 received from DGS&D. Interestingly, the date of issuance of the letter is 06.03.1988 in which reference of letter dated 21.03.1988 i.e. the date which is yet to come, has been given. Even otherwise, even if the same is assumed to be written by Dr. O.P. Jain, there seems nothing wrong in it if the same is written for expediting the process. Dr. M. Khalilulllah/PW-13 has also deposed that he also had been writing priority letters to the DGS&D. No question regarding the same was put to Dr. O. P Jain in his statement under Sec. 313 Cr.P.C. Moreover, it is not the case of the prosecution that just because of this letter, the DGS&D ignored all other aspects which was required to be looked into for the purpose of awarding Ats.
49. IO did not investigate the matter independently but only collected the documents already in the possession of the DRI/ED and put them together to file the chargesheet. Interestingly the reports of the DRI/ED in which the accused No. 2 and accused No. CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.
Page No.83 of 853 have been exonerated by DRI/ED have also been placed on record. If the chart Ex.PW-21/A prepared by officers of DRI could not benefit them i.e DRI, then how could IO place his whole case over that chart only rather venturing out to actually find the facts. As per the charge-sheet, it has been revealed in the investigation that in enquiry of DRI under FERA 1973 against Directors of accused No.3/M/s B. L. Marketing Services Pvt. Ltd. that the excess amount charged from GB Pant Hospital, Delhi on supplies made were brought back to India by different bank channels. No details of any such bank account in which the amount has been received by accused No.3/M/s B. L. Marketing Services Pvt. Ltd. has been brought on record and no further follow up seems to have been done subsequent to issuance of Letter Rogatory for detail foreign investigation. Also, the investigation abruptly ended after issuance of Letter Rogatory regarding receipt of difference of exorbitant amount by accused No.3/M/s B. L. Marketing Services Pvt. Ltd. from the foreign suppliers in its bank account. Again, no such bank transaction has been brought on record.
Be that what it may. In view of above discussion and the case laws relied upon, it is evident that the prosecution has failed to prove the conspiracy between the accused persons, the prices of the equipment/articles being exorbitant, thus cheating the Government of India, PACs being issued falsely and indents being placed without any requirement during the relevant period.
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Page No.84 of 8550. It is well settled in a catena of judgments that suspicion, however grave it may be cannot take the place of proof, and there is a large difference between something that "may be" proved and "will be proved". In criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for reason that mental distance between "may be" and "must be" is quite large and divides vague conjectures from sure conclusions. In a criminal case, court has duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and " must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied, in such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touch stone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well the quality and credibility of evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of the case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt but a fair doubt that is based upon reason and common sense.
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Page No.85 of 8551. In view of above, I am of the considered opinion that the prosecution has failed to prove any of the offences against the accused beyond reasonable doubt as the case of the prosecution suffers from various infirmities and loop holes, the benefit of which must go to the accused. They accordingly, stands acquitted of the charges in the matter. Accused No. 2/Sh.Sunil aggarwal is on bail in this case. His bail bond stands cancelled. Surety stands discharged. Endorsement, if any on the documents of accused or his surety be cancelled. The original documents of accused or his surety, if on record, be returned to them forthwith against proper acknowledgment and receipt.
Copy of the judgment be given free of cost, to the accused. Announced in the open Court today on this the 7th day of June, 2024.
(BHUPINDER SINGH) SPL. JUDGE (PC Act) (CBI) -06 RADC/ NEW DELHI/07.06.2024 CC No.178/2019 Bhupinder Singh,Spl.Judge,CBI CBI Vs. Dr. O. P. Jain & Ors. (PC Act)-06,RACC, New Delhi.