Madras High Court
Dr. Nagarajan vs State Rep. By The on 5 February, 2010
Author: C.T.Selvam
Bench: C.T.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/02/2010 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.A.(MD) No.104 of 2009 1. Dr. Nagarajan 2. Dr. Muralidharan ...Appellants/Accused vs. State rep. by the The Public Prosecutor Nagercoil. ...Respondent/Complainant Prayer This Criminal Appeal is filed under Section 374 of Cr.P.C. praying to set aside the Judgment and conviction of the appellants/ accused passed by the Chief Judicial Magistrate-cum-Special Judge, Nagercoil in C.C.No.38 of 1991 dated 31.01.2002. !For Appellants ... Sri.S. Ashok Kumar, Sr. Counsel for M/s.S. Palanivelayutham ^For Respondent ... Sri.P. Rajendran, GA (Crl.side) :JUDGMENT
This appeal arise against the judgment passed by the Chief Judicial Magistrate-cum-Special Judge, Nagercoil in C.C.No.38 of 1991 on 31.01.2002. The first accused was charged for offences under section 120(b), 420, 471 r/w 467 [32 counts] and the second accused stood charged for offences u/s.120(b) and 420 r/w 109 IPC. The lower court has entered a finding of conviction for the said offences and sentenced the accused as follows :-
Accused Charges Sl.No. A-1 120(b)- to undergo 2 years Rigorous Imprisonment and to pay a fine of Rs.1000/- in default to undergo 6 months RI;
420 - to undergo 2 years Rigorous Imprisonment and to pay a fine of Rs.1000/- in default to undergo 6 months RI; and 471 r/w 467 [32 counts]- to undergo 2 years Rigorous Imprisonment and to pay a fine of Rs.500/- for each count and in default to undergo 6 months RI;
A-2 120(b)- to undergo 2 years Rigorous Imprisonment and to pay a fine of Rs.1000/- in default to undergo 6 months RI; and 420 r/w 109 IPC - to undergo 2 years Rigorous Imprisonment and to pay a fine of Rs.1000/- in default to undergo 6 months RI;
This appeal is against the said finding.
2. The case of the prosecution is as follows :
The first accused S. Nagarajan was a Medical Practioner, in-charge of the private Rajan Hospital at Nagercoil and the second accused was his Assistant therein. Between February and March 1980, the accused entered into a conspiracy and with criminal intent created false records of the conduct of family planning operations at Rajan Hospital, whereby the first accused was enabled to fraudulently receive government funds of a sum of Rs.5225/- with the complicity of the other accused. The accused are said to have put up false records of having performed family planning operations for 32 persons, false certificates have been issued in respect thereof and thumb impressions have falsely been affixed on receipts towards receipts of monies. Accordingly, the accused have been charged for offences under section 120(b), 420, 471 r/w 467 IPC. The First Information Report in the case was registered in 1983. The charge sheet was filed in 1991 i.e. About 12 years after the alleged occurrence. Shorn of unnecessary details, the case is that the Rajan Nursing Home is one of the Hospitals which have been approved for conducting family planning operations in the course of Government Family Planning drive. The person undergoing Tubectomy/Vasectomy operations were given Rs.85/- and Rs.75/- respectively. The motivator was paid Rs.10/-. A payment of Rs.15/- was made towards the cost of drugs and dressing and a fee of Rs.5/- was paid as doctor's fee for conduct of operation. A sum of Rs.5/- was also paid for transport charges to the person undergoing operation and Rs.20/- was give to such person towards diet charges. It is through manipulation of records in respect of the above, that monies are said to have been siphoned off by the first accused with the aid of the other accused.
3. The prosecution examined 50 witnesses and marked 205 exhibits. The defence marked as many as 24 exhibits. The occurrence is of the year 1980. PWs-1 to PW-23, PW-28, PW-42 to PW-45 were motivators under the family planning scheme who speak to having forwarded applications for conduct of sterilisation operations and payment of monies there towards to the accused. They speak to having affixed their signatures upon the instructions of the accused. They claim lack of knowledge as to persons who had undergone sterilisation operations. PWs-24 to PW-27, PWs-29 to PW-34, PWs-37 to PW-41 and PW-46 are the Village Administrative Officers, who have issued certificates as to the existence or non-existence of persons who were said to have undergone sterilisation operations in the hospital of the first accused. What the prosecution sought to establish is this: that the first and second accused after collecting monies towards conduct of operations did not do so but issued false receipts as if operations had been conducted in respect of non-existent persons, raised a claim there against and thereby committed offences under section 120(b), 420, 471 r/w 467 IPC.
4. The prosecution case would have to be rejected on the following considerations. PW-47 is the finger print expert who speaks on the documents that have been sent to him for comparison and opinion on finger prints reflected thereon. The person who has taken the finger print has not been examined. The Investigating Officer PW-48 informed that the Head Constable who had taken the finger print impressions had not been examined by him.
5. The Block Development Officer of the concerned Panchayat Union has been the person under whose signature payments have been passed i.e. payment of compensation to persons who undergo Vasectomy/ Tubectomy operations, payment of transport charges, payment of diet charges, payment to the paramedical staff/ anaesthetians, payment to motivators, as also the receipts evidencing, handing over of dhoti and towel to men and sarees to women who have undergone Vasectomy/ Tubectomy operations. That the disbursement of monies under the family planning scheme was made through the Block Development Officers, stands admitted by the Investigating Officer PW-48. On the one hand he claims to have examined Block Development Officers but that he had not recorded their statements since it was felt unnecessary, on the other hand he would say that he had not examined the Block Development Officers who were involved in the distribution of monies under the family planning schemes. PW-50, the other Investigating Officer who filed the charge sheet also admits that the Block Development Officers had not been examined. It has been contended by the defence and quite rightly so that the non-examination of the Block Development Officers who played a pivotal role in the family planning scheme, has caused the accused great prejudice. It was submitted that the examination of the Block Development Officers who would have enabled the accused to establish their innocence and it was only because the prosecution feared that the Block Development Officers would admit to the truth of the defence given their signatures contained in all the relevant prosecution exhibits that the prosecution has with-held such material witnesses.
6. The defence is that the Panchayat Union officers held the list of persons who had undergone Vasectomy/ Tubectomy operations. PW-48 admits that he had no received the entire documents in respect of the scheme from one of the Panchayat Unions since some records had gone missing and that he was informed that the same would be searched for and handed over to him but that the same had not been done. Thus, when records relating to persons who had undergone family planning operations were not complete in the hands of the Investigating Officer, it would be difficult to sustain a charge as the one alleged against the accused.
7. The Village Administrative Officers have issued certificates informing that the persons in whose names claims have been made by the accused were non-existent persons. None of the Village Administrative Officers were functioning in that place at the time of occurrence. While some of them claim to have perused the electoral roles and ration cards, in the issue of certificates others admit to not having done so. Uniformly, there is absolutely no reflection on the nature of the enquiry conducted by them or the persons examined by them. There is no evidence of the investigating officers of the manner in which the certificates issued by the Village Administrative Officer stands substantiated. A conclusion that a particular person was not available in a particular place cannot be arrived at, on the mere say so of a Village Administrative Officer.
8. The defence has pointed out that an enquiry was conducted by one Dr. Abbas Bai and that neither his report had been marked nor such person had been examined as a witness. The defence submission here again is that if the same had been done the innocence of the accused would have been established. PW-48, the Investigating Officer as also PW-49 an other Officer involved in the investigation, both admit to the report of Dr.Abbas Bai and both admit of not having examined him. The examination of Dr.Abbas Bai as also his report would have been material in the case and there is no explanation from the prosecution as to why he was not examined.
9. Towards proving the innocence, the accused had marked Exhibits D-1 to D-24 which are the sterilisation case cards issued post operation. They bear the counter signatures of DWs 1 to 18, 21 to 23 and 28. Placing reliance on the defence exhibits, it is urged by the defence that the motivators had falsely deposed against them in Court at the instance of the prosecution. In circumstances, where material witnesses have not been examined, where admittedly all relevant records are not held by the prosecution, where the certificates issued by the Village Administrative Officers of non-existence of the persons said to have undergone family planning operations is wanting and where the opinion of the finger print expert does not find favour for reasons aforestated, this Court is inclined to accept the appeal.
9. Accordingly, this appeal shall stand allowed. The fine amount paid by the appellants shall be refunded.
avr To
1. The District Chief Judicial Magistrate-cum-Special Judge, Nagercoil.
2. The Inspector of Police Vigilance and Anticorruption Nagercoil.
3. The Public Prosecutor Madurai Bench of Madras High Court Madurai.
4. The Section Officer Criminal Section, Madurai Bench of Madras High Court Madurai.