Delhi District Court
Cbi vs . 1 Dr. Jai Raj Sharma, on 5 July, 2013
IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
CC No. 48/2011
RC 30(A)/2008/ACB/CBI/ND
U/s 120-B r/w 409 IPC&13(2)r/w13(1)(d) &13(1)(c) of PC Act.
CBI Vs. 1 Dr. Jai Raj Sharma,
Son of late Sh. Jyoti Prasad,
Resident of 8/3, 1st Floor, Roop Nagar,
Delhi-110007.
2 Dr. Ved Prakash Kannoji,
Son of late Sh. Baboo Lal,
Resident of D-II/2, MCD Flats,
Naniwala Bagh, Azadpur,
Delhi-33.
Permanent Address: Village- Lashkar,
P. O. Lashkar, District Gwalior,
Madhya Pradesh.
3 Dr. Mohan Lal Khatri,
Son of Late Sh. Chandra Bhan Khatri,
Resident of 6/4, MCD Colony,
Model Town-III,
Delhi-9.
Date of Institution : 08.12.2009
Date of framing of charge : 07.07.2011
Date on which case was received on
Transfer by this Court : 22.11.2011
Date of conclusion of arguments : 05.07.2013
Date of Judgment : 05.07.2013
Memo of Appearance
Sh. Jagbir Singh and Sh. U.C. Saxena, Learned SPPs for CBI
Sh. T. N. Puri, Learned Counsel for Accused Dr. Jai Raj Sharma
Sh. A. Q. Butt, Learned Counsel for Accused Dr. Ved Prakash Kannoji
Sh. Harsh K. Sharma, Learned Counsel for Accused Dr. Mohan Lal Khatri
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 1 of 71
JUDGMENT
PROSECUTION STORY 1.0 A Diabetic Centre was set up in Aryapura, Delhi in terms of MCD Resolution No.17 dated 07.04.2003 (Mark PW17/C (D19)). Accused Dr. Jai Raj Sharma was posted as CMO/Incharge of said Ayurvedic Diabetic Centre (ADC) and was given responsibility to make all kinds of arrangements including establishment of testing lab etc vide order No. 631/DHO/ISM dated 27.01.2003 (D32).
1.1 Accused Dr. Ved Prakash Kannoji was Deputy Health Officer (Indian System of Medicine) during the relevant period. Dr. Jai Raj Sharma and Dr. Ved Prakash Kannoji entered into a criminal conspiracy and in furtherance of such conspiracy, Dr. Kannoji, in contravention of said Resolution No.17, issued another circular No.41/DHO(ISM) dated 26.4.2005 (Mark PW17/D (D29)) whereby ADC, Aryapura was declared as referral laboratory for conducting various blood tests and all the medical officers/in charges of MCD Dispensaries were directed to refer patients to ADC, Aryapura for said purpose. Dr. Jai Raj Sharma placed demands of various medical kits with intention to misappropriate those. Approval for purchase of such medical kits was given by Dr. Kannoji 1.2 Dr. J.R. Sharma was also having a private clinic being run under the name and style of "Sharma Clinic, Medical and Maternity Centre", Gurmandi, Delhi-7. No facility for any medical test was, however, available in such private clinic. Dr. J.R. Sharma started sending blood samples, of his private patients examined at his such private clinic, to ADC, Aryapura for testing in unauthorized and illegal manner. Thus the medical test kits, which had been provided to ADC, Aryapura for its own patients, were used for testing samples of private patients of Dr. J.R.Sharma.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 2 of 711.3 Dr. J.R. Sharma also hired services of one Ms. Lissa Paul who used to conduct such tests at ADC, Aryapura. She used to be paid salary by Dr. J.R.Sharma from his own pocket.
1.4 Medical test kits, which had been supplied to ADC, Aryapura, were required to be kept at ideal storage condition of 2 degree to 8 degree Celsius but there was no refrigeration facility to keep such medical test kits under such ideal storage condition which resulted in unnecessary and enormous loss.
1.5 In terms of order no. 561/DHA/2005 dated 30.03.2005 (Mark PW17/H (D17)) Dr. J.R.Sharma was given / charge of Ayurvedic Panchkarma Hospital, Rajender Nagar, Delhi in addition to his existing duties at ADC, Aryapura.
1.6 On 05.10.2005, Dr. Meenu Mahinder joined as medical officer at ADC, Aryapura. Her posting was on contract basis and was initially for a period of six months as per office order Ex.PW9/D2 (D16). Even after joining of Dr. Meenu Mahinder as Medical Officer (Ayurveda) at ADC, Aryapura, Dr. J.R. Sharma, being CMO/incharge ADC, Aryapura kept on supervising day-to-day functioning of ADC, Aryapura and various medical kits were got indented through Dr. Meenu Mahinder. Approval for such purchase was given by accused Dr. Ved Prakash Kannoji and later on by accused Dr. Mohan Lal Khatri in the capacity of DHO (ISM).
1.7 Medical test kits worth Rs.49,00,000/- approximately were indented and supplied to ADC, Aryapura during the period November, 2005 till July, 2007. Kits worth Rs. 38,00,000/- were misappropriated by Dr. J.R. Sharma and remaining kits worth Rs.11,00,000/- were though found lying in the store of ADC, Aryapura which too were of no use as these had already expired.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 3 of 711.8 On the basis of a reliable information regarding misappropriation of test kits, a joint surprise check was conducted at said centre by CBI along with the vigilance officers of MCD. Various lab test registers, OPD registers and stock registers were seized. Perusal of stock registers did not indicate or suggest as to how such medical kits had been actually used. Lab test registers indicated that large number of tests had been shown conducted in respect of one and the same patients and the entries appearing in OPD registers and lab test registers were not in consonance with each other and thus the entries recorded in lab test registers were found to be fake/forged. These were evidently made in order to falsely justify the utilization of substantial kits and accordingly on the basis of complaint of SI Manoj Kumar of CBI, FIR was registered on 30.06.2008.
1.9 It would be also important to mention that such FIR was directed against accused Dr. J.R. Sharma, Dr. Meenu Mahinder and Ms. Lissa Paul.
1.10 Comprehensive investigation was carried out and statement of Dr. Meenu Mahinder was got recorded u/s 164 Cr. PC in which she revealed Lissa Paul had been kept privately by Dr. J.R. Sharma at ADC, Aryapura as lab technician. She also divulged that blood samples used to be brought from the private clinic of Dr. J.R. Sharma and used to be tested by Lissa Paul in ADC, Aryapura and names of such patients also used to be mentioned in lab test register and instead of mentioning OPD No. against such patients, Lissa Paul used to mention word "new" in lab test register. She also disclosed that Dr. J.R. Sharma had got filled various indents for medical kits from her and medical kits, so issued, were kept by him and that she herself had no control or interference in the functioning of Diabetic Centre and she merely carried out the instructions of Dr. J.R. Sharma. She also revealed that Lissa Paul, who was staying at the private clinic of Dr. Sharma, had been taking out the medical test kits from the store of ADC, Aryapura as per the instructions of Dr. J.R. Sharma. She also disclosed that even Dr. Ved Prakash Kannoji was in touch with Lissa CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 4 of 71 Paul and knew that she used to come to ADC, Aryapura.
1.11 Sanction for prosecution of Dr. J.R. Sharma and Dr. M.L. Khatri was obtained from Sh. K.S. Mehra, the then Commissioner, MCD, Delhi. No sanction for prosecution of Dr. V.P. Kannoji was obtained as he had already retired by then.
CHARGESHEET AND COGNIZANCE 2.0 After thorough investigation, charge sheet was filed and accused Dr. J.R. Sharma, Dr. V.P. Kannoji and Dr. M.L. Khatri were sent up to face trial.
2.1 Dr. Meenu Mahinder and Ms. Lissa Paul were not charge sheeted and their names were kept in column no.12 of the charge sheet and they were cited as prosecution witnesses claiming that there was no evidence against them.
2.2 Charge sheet was filed on 08.12.2009 and cognizance was taken by the court on 16.01.2000 and summons were issued to all the three accused persons.
2.3 Vide order dated 26.04.2011, all the three accused were directed to be charged u/s 120B r/w 409 IPC and Section 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act, 1988 and accused Dr. J.R. Sharma was also directed to be charged for substantive offences u/s 409 IPC and 13 (1) (d) r/w 13 (2) PC Act and other two accused(s) were also separately charged with substantive offence u/s 13 (1) (d) r/w 13 (2) PC Act.
2.4 All the accused pleaded not guilty to said charges and claimed trial.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 5 of 71PROSECUTION EVIDENCE 3.0 Prosecution was directed to adduce evidence and has examined 22 witnesses. Witnesses can be classified as under:-
Witnesses in relation to functioning of ADC, Aryapura and OIPS
(i) PW9 Dr. Meenu Mahinder.
(ii) PW10 Ms. Lissa Paul.
(iii) PW13 Ms. Radha Pyari.
(iv) PW14 Smt. Suman Bala Sharma.
(v) PW15 Sh. Madan Singh Negi.
(vi) PW17 Dr. Vidhya Sagar Sharma.
(vii) PW18 Dr. Ashok Kumar Garg.
(viii) PW19 Sh. Shiva Nand Harit.
Private suppliers of medical kits
(i) PW2 Sh. Neeraj Bali.
(ii) PW3 Sh. Mukesh Kapoor.
(iii) PW4 Sh. Sudesh Chander Khanna.
(iv) PW5 Sh. Shyam Sunder Arora.
(v) PW11 Sh. Mahesh Kumar.
Other witnesses
(i) PW1 Sh. K.S. Mehra, Commissioner, MCD, Delhi. (Sanctioning
authority)
(ii) PW6 Sh. Om Prakash Sharma.
(iii) PW7 Sh. Rakesh Jain.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 6 of 71
(iv) PW20 Dr. Kusum Gupta.
Private patients
(i) PW8 Mrs. Kusum Jain.
(ii) PW12 Dr. Rajesh Sharma.
(iii) PW16 Sh. Pradeep Kumar.
Investigating officers
(i) PW21 Inspector Anand Sarup.
(ii) PW22 Inspector Manoj Kumar.
STATEMENTS OF ACCUSED AND DEFENCE EVIDENCE
4.0 All the three accused in their respective statements pleaded innocence
and claimed that they had been falsely implicated. Initially they desired to lead evidence in defence but fact remains that they did not lead any such evidence and make statements accordingly.
RIVAL CONTENTIONS 5.0 Learned Prosecutors for CBI have contended that prosecution has been able to prove its case to the hilt. Strong emphasis has been laid upon the deposition made by Dr. Meenu Mahinder. It has been argued that she categorically deposed that various kits were indented as per the asking of Dr. J.R. who was having a private clinic from where blood samples used to be brought for testing at ADC Arya Pura and Ms. Lisa Paul used to conduct tests on such samples pertaining to private clinic of Dr. J.R. Sharma. These patients, who actually never visited ADC, Aryapura, were used to be described as new patients CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 7 of 71 and no separate OPD number used to be given to such patients. It has also been argued that though the indents were signed by Dr. Meenu Mahinder and even articles were received under the signatures of Dr. Meenu Mahinder but in fact all such stock always remained under the control of Dr. Sharma and was eventually misappropriated by him alone.
5.1 Sh. Singh and Sh. Saxena have also claimed that Dr. Kannoji was also very much involved as he has visited ADC, Aryapura and even talked to Ms. Lisa Paul and he also very well knew that Lisa Paul was not on the rolls of MCD and her salary used to be borne by Dr. Sharma. It has also been argued that though Lisa Paul has not fully supported the case of prosecution yet fact remains that she has, to some extent, raised an accusing finger towards accused Dr. J.R. Sharma as she used to stay at the house of his father and there was obvious connection between the two and to that extent her testimony can be relied on and merely because she has not wholeheartedly supported the case of prosecution, her entire testimony is not liable to be rejected. It has also been argued that since she came up with truth during the investigation, she was made a prosecution witness instead in order to lend requisite support and corroboration to the case of prosecution and there was nothing wrong in citing her as a prosecution witness. It has also been argued kits worth Rs. 38 lacs approximately were misappropriated and kits worth Rs. 11 lacs were not at all used and ultimately these became junk being beyond expiry date. According to Sh. Singh and Sh. Saxena, in terms of criminal conspiracy only, circular was got issued through Dr. Kannoji and thereafter approvals for purchase of medical kits were given by Kannoji as well as Dr. Khatri and these kits were fiddled as these were never actually used for the genuine patients.
5.2 It has also been argued that kits were indented from time to time by Dr. J.R. Sharma himself and at later stage by Dr. J.R. Sharma through Dr. Meenu Mahinder knowing fully well that there was no ideal storage condition in ADC, CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 8 of 71 Arya Pura and kits so procured were also either misappropriated or resulted in waste due to improper storage condition. According to CBI, other two co-accused were fully aware about the pathetic storage condition at ADC, Aryapura and despite that, they gave administrative approval for purchase of kits.
5.3 Sh. T.N. Puri has defended alleged prime accused DR. Sharma. He has argued that investigation is defective, biased and motivated and accused has been implicated with ulterior motive. According to him, Dr. Meenu and Dr. Ashok Garg were the real culprits and they had actually misappropriated the stock and Dr. Meenu found an easy way to blame Dr. Sharma claiming that she had signed at his instance. There was no reason for her to have acted under his influence and after 05.10.05, she remained posted as In-charge of ADC, Aryapura and Dr. Sharma had no connection whatsoever with said Centre. Dr. Sharma was holding dual charge only as a stop-gap arrangement till anyone joined as Incharge and after joining of Dr. Meenu, Dr. Sharma was left with no association with ADC, Aryapura. Sh. Puri has claimed that various resolutions of MCD have been misconstrued and vital documents were not deliberately seized and produced before the court to prejudice the mind of the court.
5.4 It has also been asserted that Dr. Sharma was instrumental in creation of laboratory and he made best efforts to create infrastructure and also impressed upon authorities to post lab technician. This all was as per Resolution No. 17. Earlier, he himself was doing sugar test with Handy machine and some other tests like SGOT, SGPT, Hb, TLC, DLC,ESR etc with help of microscope and for that he did not require any technician. He raised demand of chemicals only after receiving machine and then got the receipt of chemicals deferred as technician had not been posted and supply of chemicals dated 24.10.2005 was in fact after his tenure.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 9 of 715.5 Sh. Puri has also exclaimed that even as per charge-sheet and charges, Dr. Sharma has been held responsible for alleged bungling during November 2005 till July 2007 and he had no connection with any stock received during said period. There is no allegation of any bungling or misappropriation prior to that period and no bill or indent of prior period has been placed on record or proved which may show that he had received any chemical or kit before 24.10.2005.
5.6 ADC, Aryapura was getting mammoth inflow of patients and since Dr. Sharma was holding dual charge, it was not possible for him to devote much time. Moreover, as a doctor, it was not his duty to fill and maintain lab register or OPD Register. He used to issue prescriptions on prescribed OPD cards/slips.
5.7 According to Mr. Puri, large-scale bungling was done during the tenure of Dr. Meenu and Dr. Ashok Garg and instead of making them accused, they have been shown undue indulgence and have been cited as witness to depose against D. Sharma. It has also been asserted that in apparently illegal manner, Dr. Meenu was made prime witness whereas fact remains that she was the real culprit.
5.8 Sh. A.Q. Butt counsel for A2 Dr. V.P. Kannoji has vehemently defended Sh. Kannoji. According to him, Sh. Kannoji has been unnecessarily and baselessly implicated in the present matter and there is no incriminating material appearing on record showing his involvement or for that matter his participation in the alleged conspiracy. He, admittedly, remained DHO (ISM) from 2003 till 16.6.2006 and he retired in February 2007. Sh. Bhatt has argued that ADC Aryapura was established in terms of Resolution No.17 dated 7.4.2003 which has been proved on record as Mark PW17/C (D19) and later on, Sh. Kannoji had issued one circular dated 26.4.2005 i.e. Mark PW17/D (D29) whereby he merely informed that blood test facility was available in ADC, CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 10 of 71 Aryapura and medical officers/ in charges may refer their patients to ADC, Aryapura for availing such facility.
5.9 According to Sh. Butt, there was no irregularity in issuing such circular which was evidently in fulfillment of MCD's Resolution. According to him, ADC, Aryapura was established primarily because of its strategic location as it was located in the heart of city and, therefore, it was very easy and convenient for other dispensaries/centers of MCD to refer their patients to ADC, Aryapura for specialized treatment and also for blood test.
5.10 According to him, even if there was no circular to that effect, the other MOICs of other dispensaries/centers of MCD could have, of their own, referred the patients to ADC, Aryapura for blood test. Sh. Butt has also argued that as per the stock register (D52) of OIPS, all the lab equipments necessary and essential for tests as mentioned in circular Mark PW17/D were made available at ADC, Aryapura on 30.3.2005 and, therefore also, it could not be alleged that there was any sort of conspiracy between Dr. V.P. Kannoji and Dr. J.R. Sharma.
5.11 It has also been argued that some indents were received in the office of OIPS i.e. office of Officer Incharge (Pharmacy & Stores) but since the concerned OIPS Hari Nath Gupta was unwell, Sh. Kannoji, being DHO (ISM), was officiating as OIPS and in that capacity he had no option but to consider such indents and to deal with the same in appropriate manner. It has also been argued that even otherwise, as officiating OIPS, he was not the final authority for the purposes of approval of such purchase orders/indents and such task was to be finally adjudicated by A.O. (Finance) who never ever found any sort of irregularity in any of such purchase order or indent.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 11 of 715.12 According to Sh. Butt, Lisa Paul has not whispered even a single word against Dr. Kannoji as she has not even identified him and moreover at the relevant point of time Sh. Kannoji used to sit in office situated at Mor Sarai and never ever sat in Town Hall office during those days. It has also been claimed that the stand of Dr. Meenu Mahinder is very ambiguous and prosecution has left so many gaps which clearly indicate the hollowness in the case of prosecution.
5.13 Sh. Butt has also contended that there was already an order regarding the posting of lab technician for ADC, Aryapura but no one, at any point of time whatsoever, brought it to the notice of OIPS or officiating DHO (ISM) that no lab technician had actually joined ADC, Aryapura.
5.14 Sh. Harsh K. Sharma, learned defence counsel has defended Dr. Khatri. His contentions can be summarized as under:-
(i) Order on charge is defective and by no stretch of imagination, Dr. Khatri can be said to be part of any criminal conspiracy which had allegedly been hatched somewhere in 2005. Dr. Khatri joined DHO (ISM) on 26.06.2006 and much before that, there was a Resolution of MCD by virtue of which laboratory was established at ADC Arya Pura and there was already an order of appointment of a lab technician and on various previous occasions, kits were indented and purchased.
(ii) At no point of time, DHO (ISM) was ever informed by anyone including Dr. Sharma that there was no lab technician at ADC Arya Pura or that there was no ideal storage condition at ADC Arya Pura.
(iii) Shiva Nand Harit (official of OIPS whom prepared all proposals) and Dr. Hari Nath Gupta, OIPS were in better position to explain about the justification behind preparing all such proposals and Dr. Khatri simply, after joining as DHO (ISM) on 26.06.2006, dealt with prospective purchase indents, raised queries and got reply from OIPS/CMO and Finance Section of CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 12 of 71 MCD (Health) before giving administrative approval for such purchases. Had his intention been malafide or if he was part of any conspiracy, he would not have raised any query from any corner and would have rather blindly given the administrative approval. Queries were raised from OIPS as well as from MO (Dr. Meenu Mahinder) and if at all Dr. Khatri was to be made an accused then OIPS and said Medical Officer besides Account Officer should have also been roped in the alleged conspiracy, if at all there was any illegality in granting approval.
(iv) Queries raised by Dr. Khatri itself indicate that he had taken his job very seriously and sincerely and the contents of queries would reveal that he did not accept the proposals on their face value and only gave approval after satisfying himself i.e. after receiving the answers to the queries raised.
(v) Conspiracy theory stands demolished in view of the deposition made by PW17 Dr. Vidhya Sagar Sharma, PW18 Dr. Ashok Kumar Garg, PW19 Sh. Shiva Nand Harit and PW21 Insp. Anand Sarup, IO. As per CBI, there was total misappropriation of kits worth Rs. 38 lacs but fact remains that as DHO (ISM), Dr. Khatri had cleared indents for lesser amount and he could not have been, by any stretch of imagination, made accountable for the approval given by his predecessor particularly when there was never any meeting of mind amongst the accused. No prosecution witness has been able to portray any sort of complicity of accused Dr. Khatri in any manner whatsoever.
(vi) Sanction for prosecution qua Dr. Khatri is defective as Sh. K.S. Mehra, Commissioner, MCD was not competent to grant sanction of prosecution of Dr. Khatri as Dr. Khatri was a Class-I Officer and only Municipal Corporation of Delhi was competent to accord sanction in view of Section 2 (7), 59 (d), 92, 480 & 509 of DMC Act and also in view of judgment of G.S. Matharu Vs. CBI (2012) II AD Delhi Page 188.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 13 of 71EVALUATION OF EVIDENCE 6.0 I have given my thoughtful consideration to the rival contentions and scanned the entire record very carefully.
6.1 Let me weigh up the evidence.
CREATION OF ADC ARYAPURA 7.0 Decisions to open Ayurvedic Diabetic Centre at Aryapura was taken by Committee of MCD vide Resolution No. 17 in terms of meeting held on 07.04.2003.
7.1 Such Resolution has been proved as Mark PW17/C and even de- fence does not dispute the aforesaid fact and the contents of such Resolution.
7.2 As per said Resolution, there was need of establishing Ayurvedic Diabetic Centre as there was prevalence of diabetes particularly in urban areas. In terms of Action Plan 2002-2007, the proposal was considered and it was resolved to open Diabetic Centre at Aryapura keeping in mind the fact that Aryapura was situated in the centre of the city and in a thickly populated area where a large number of patients would prefer to come for treatment. It was also felt that the other dispensaries/centers of MCD could also opt to refer their patients to such proposed centre for specialized ayurvedic treatment. Provision was also incorporated for establishing a laboratory as well support technical staff. It would be important to mention that expenditure on the staff was estimated as Rs. 8 lacs per annum and the expenditure on medicines and laboratory was estimated as Rs. 15 lacs per annum. The proposal was accordingly ordered to be placed before the Standing Committee of the Corporation to endorse such CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 14 of 71 proposal of establishment of such centre and to sanction the posts.
7.3 In terms thereof, Dr. J.R. Sharma, who was at that time CMO/Incharge, Ayurvedic Dispensary, Hindu Rao Hospital, was directed to make all kinds of arrangements including establishing of testing lab with immediate effect so that centre could start functioning. Name of Dr. Sharma was mooted in advance and he, perhaps, seemed to be an obvious choice. Office order in this regard is contained in D-32. It is having no. 631/DHO/ISM dated 27.01.2003. Though such office order has not been proved by the prosecution yet fact remains that defence does not have any difference of opinion with respect to the said office order.
7.4 Accordingly, ADC Aryapura came into existence with Dr. J.R. Sharma at the helms of affairs. He was given task of establishing of centre as well as laboratory and Dr. J.R. Sharma accordingly joined ADC Aryapura w.e.f. March 2003. It is also not in dispute because even as per the status of salary drawn as contained in Ex. PW17/G (D-55), Dr. J.R. Sharma was drawing his salary from ADC Aryapura w.e.f. March 2003. It is also not in dispute that Dr. J.R. Sharma was also provided with support staff. PW13 Ms. Radha Pyari was posted as Compounder/Pharmacist, one Raj Kumari as Auxiliary Nursing Midwife (ANM), PW15 Sh. Madan Singh Negi as Peon and Sh. Ratan as Part-time Sweeper.
PERIOD OF ASSOCIATION OF DR. SHARMA WITH ADC, ARYAPURA 8.0 It is now required to be seen as to till what time Dr. J.R. Sharma remained CMO/Incharge of ADC Aryapura. According to prosecution, though he had been given additional charge of Resident Medical Superintendent (RMS) of Rajiv Gandhi Ayurvedic Panch Karma Hospital, Rajender Nagar (hereinafter referred to as Panch Karma Hospital) yet he was having absolute control and CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 15 of 71 supervision over ADC Aryapura. According to learned SPP, though there was an order to the effect that he was being given additional responsibility to act as RMS of Panch Karma Hospital yet he continued to manage, monitor and supervise all the administrative and financial activities of ADC Aryapura.
8.1 Let me come to such order now. Such order has been proved as Mark PW17/H (D-17) and as per such order no. 561/DHO/2005 dated 30.03.2005 issued by MCD, Dr. J.R. Sharma was directed to look after Panch Karma Hospital in addition to his own duties with immediate effect. Such order was passed with prior approval of Commissioner and even Dr. J.R. Sharma does not dispute the contents of such order.
8.2 Stand of Dr. J.R. Sharma is very simple and plain. He claims that said order dated 30.03.2005 was provisional, stop-gap and limited in nature and the moment there was full-fledged appointment of Dr. Meenu Mahinder as Medical Officer/In-charge at ADC Aryapura, he ceased to have any sort of involvement with ADC Aryapura and from then on, he merely had exclusive charge as RMS of Panch Karma Hospital i.e. w.e.f. 06.10.2005.
8.3 Let me now come to the posting order of Dr. Meenu Mahinder. Such order has been proved as Ex. PW9/D2 (D-16). As per said order dated 30.10.2005, Dr. Meenu Mahinder was appointed as Ayurvedic Vaid on contract basis and was posted at ADC Aryapura and was directed to report to DHO (ISM) for further duties by 07.10.2005. Formal office order in this regard is Ex. PW9/D-3 and there is no dispute that Dr. Meenu Mahinder joined ADC Aryapura on 05.10.2005.
8.4 PW9 Dr. Meenu Mahinder is a key character in the present case.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 16 of 718.5 She has deposed that she joined her duties as Medical Officer at ADC Aryapura on 05.10.2005 and remained posted there till July 2007. She deposed that accused Dr. J.R. Sharma was also posted as CMO in said centre when she joined. According to her, he was looking after the work of both the centers i.e. ADC, Aryapura and Panch Karma. In her examination-in-chief, she declared that Dr. J.R. Sharma was very much involved with the affairs of ADC Aryapura even after she had joined ADC Aryapura.
8.6 This crucial aspect of the case requires a very minute and deeper scrutiny. It is crucial as huge chunk of alleged irregularities, illegalities and misappropriation is during the tenure of Dr. Meenu Mahinder as well.
8.7 I have gone through the entire record very carefully and I have also seen the various documents proved by the prosecution and placed on record by the defence. I have scanned the testimony of relevant prosecution witnesses on this score. Unamusing to the prosecution, I have not been able to come across any document which may even remotely suggest that Dr. J.R. Sharma was having any concern with the functioning of ADC Aryapura after joining of Dr. Meenu Mahinder.
8.8 So much so, some of the prosecution's own and important witnesses have not supported the version of CBI on this critical aspect.
8.9 PW13 Ms. Radha Pyari was posted as Compounder in ADC Aryapura and in her cross-examination, she categorically claimed that Dr. J.R. Sharma was promoted as RMS and was transferred to Panch Karma Hospital and between 20.03.2005 and 05.10.2005, he was looking after both the centers but after the joining of Dr. Meenu, entire work as In-charge of ADC Aryapura used to be looked after by Dr. Meenu Mahinder after 05.10.2005.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 17 of 718.10 PW14 Smt. Suman Bala has also admitted in cross-examination that Dr. Sharma had no contact with ADC Aryapura after the joining of Dr. Meenu Mahinder on 05.10.2005. She merely claimed that Dr. Sharma visited ADC Aryapura only once or twice. Be that as it may, coming to ADC Aryapura on stray one or two occasions would not mean and indicate that Dr. Sharma was having any concern with the functioning of ADC Aryapura after 05.10.2005.
8.11 PW15 Sh. Madan Singh Negi has also demolished the stand of CBI on this score by claiming that after 05.10.2005, Dr. Sharma joined Panch Karma Hospital exclusively and was not having any link whatsoever with the working and internal affairs of ADC Aryapura after 05.10.2005.
8.12 These all three are important witnesses as they were posted at ADC, Aryapura at that time.
8.13 Learned SPP has, however, stated that testimony of Dr. Meenu Mahinder as well as PW18 Dr. Ashok Garg and PW19 Shiva Nand Harit do indicate that Dr. Sharma was still involved with the day-to-day affairs of ADC Aryapura. I have seen their testimony as well and I am not able to hold so.
8.14 PW18 Dr. Ashok Garg joined ADC Aryapura only in July 2007. He replaced Dr. Meenu Mahinder. It is not expected that he would be in the thick of the things as to what was happening in ADC Aryapura before his joining. He was not, definitely, in any position to comment as to who was sitting there and controlling the administration as he was not posted there during that period. Whatsoever he wants to convey must be based on his self-styled inferences and hearsay. His testimony, being hearsay and inferential in nature, is not of much credence. In his cross-examination, he categorically admitted that he had succeeded Dr. Meenu on 07.07.2007. It would also be important to mention that Dr. Ashok Garg came up with a new fact in his examination-in-chief itself and CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 18 of 71 claimed that Dr. Sharma was having simultaneous duties at Panch Karma Hospital and he was performing his twin duties on alternate day basis. Nobody knows as to from where such inference has been drawn by Dr. Garg. Admittedly, there is no order to such effect at all.
8.15 PW19 Sh. Shiva Nand Harit was pharmacist in the office of OIPS. He was not the one who was keeping any tab over the doctors controlling ADC Aryapura on day-to-day basis. He was, unquestionably, not in any position to comment whether Dr. Sharma kept on supervising the functioning of ADC Aryapura even after 05.10.2005. In his deposition, he did claim that Dr. J.R. Sharma kept on visiting ADC Aryapura till Dr. Meenu Mahinder remained there but I do not know as to from where he has derived such knowledge. It must be, again, in the nature of hearsay only because he was posted in the office of OIPS which is situated at a distance from ADC Aryapura.
8.16 Reverting back to the testimony of PW9 Dr. Meenu Mahinder, crux of her deposition is to the effect that Dr. Sharma was supervising the affairs of ADC Aryapura all along. She has also claimed that he was holding both the charges and was dictating her everything. She claimed that she had sent indents at his asking only.
8.17 In her cross examination, she admitted that there was no document of any nature whatsoever bearing signatures of Dr. J.R. Sharma after 05.10.2005. She admitted that Dr. Sharma never sanctioned any sort of leave to any staff after 05.10.2005. She also tried to avoid the answer by claiming that she was not aware as to who recorded ACRs of lower staff of ADC after 05.10.2005. She does not know as to who had forwarded the ACRs of such lower staff of ADC Aryapura. She does not remember whether she herself had sanctioned or forwarded the leaves of lower staff after 05.10.2005. She also failed to pinpoint any document after 05.10.2005 having signatures of Dr. CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 19 of 71 Sharma as In-charge of ADC Aryapura. When she was asked about the attendance register, she again came up with evasive reply and deposed that she could not say whether attendance register was reflecting the name of Dr. Sharma after 05.10.2005. She was confronted with attendance register Ex. PW9/D-29 and she admitted that such register was containing her presence but the attendance of Dr. J.R. Sharma was not there. This attendance register is important. I have seen this register very carefully and admittedly, signatures of Dr. J.R. Sharma are not there w.e.f. October 2005. So much so, even the name of Dr. J.R. Sharma is not found mentioned in the attendance register for the subsequent period and name of Dr. Meenu Mahinder appears in the top. Had Dr. J.R. Sharma been holding additional charge, he would have been under some of sort of constraint to at least mark his attendance in the attendance register maintained at ADC Aryapura. On the contrary, attendance register of Panch Karma Hospital which has been proved as Mark PW9/D-31 bears signatures of Dr. J.R. Sharma w.e.f. April 2005. When Dr. Meenu Mahinder was confronted with aforesaid attendance register, she again ducked the answer by claiming that she was not in a position to comment about the same. Thereafter various other bunch of documents were shown to PW9 Dr. Meenu Mahinder by Dr. J.R. Sharma in her cross-examination and all these documents did indicate that Dr. J.R. Sharma was having charge of Panch Karma Hospital but again Dr. Meenu Mahinder came up with evasive reply. Various such documents clearly indicate that Dr. Sharma was at the helms of affairs of Panch Karma Hospital after October 2005 and admittedly there is no document to show that he was having any concern with ADC Aryapura once Dr. Meenu Mahinder joined as Medical Officer at ADC Aryapura.
8.18 Interestingly, as per Dr. Ashok Garg and as per CBI, there was specific order to the effect that Dr. Sharma was holding additional charge of Panch Karma Hospital and since thereafter there was no withdrawal of such order, it has to be necessarily assumed that he continued to hold the charge of CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 20 of 71 ADC Aryapura since it was not specifically withdrawn.
8.19 I find this argument too fanciful to be believed.
8.20 If I buy such argument then even today it has to be assumed that Dr. Sharma is holding the charge of ADC Aryapura as there is no order till date specifically mentioning that the charge of ADC Aryapura has been withdrawn from Dr. Sharma. As per order Ex. PW17/DB dated 13.07.2007, Dr. Sharma was transferred from Panch Karma Hospital to Balli Maran. This order does not portray anything about his holding any additional charge of ADC Aryapura. If Dr. Sharma was holding the dual charge then such order Ex. PW17/DB would have also certainly reflected so. It becomes very much apparent from the testimony on record and various documents available on record that Dr. J.R. Sharma was not having any direct or indirect control over the affairs of ADC Aryapura once Dr. Meenu Mahinder joined ADC Aryapura.
8.21 It will also be important to mention that CBI had sought some queries from MCD and such queries were answered which are contained in D-60. This document has been proved as Ex. PW17/DA as well as Mark PW9/D-4. Interestingly, the relieving orders of Dr. J.R. Sharma were not traceable in the department as per the reply given by MCD. Dr. J.R. Sharma joined ADC Aryapura w.e.f. May 2003 and joined as RMS at Panch Karma Hospital on 31.03.2005. As per reply, joining of Dr. Meenu and relieving of Dr. J.R. Sharma were not traceable in the office. I do not want to comment whether such relieving reports have been deliberately held back or whether these are genuinely untraceable but fact remains that my foregoing discussion would clearly go on to show that there is nothing on record which may imply that Dr. J.R. Sharma was supervising the affairs of ADC Aryapura even after joining of Dr. Meenu Mahinder. Rather, if he was holding charge of ADC, Aryapura even after her joining, he could have very easily signed various papers and documents.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 21 of 71Naturally, as per CBI, if he was having twin charge, he could have signed as CMO, ADC, Aryapura as well but there is not even a single piece of letter or document, official or otherwise, to that effect. It rather compels me to believe that he had evidently no control over ADC, Aryapura after joining of Dr. Meenu Mahinder. Interestingly, Dr. Garg himself also admitted in his cross examination dated 23.08.2012 that Dr. Meenu was Incharge of ADC, Aryapura. Moreover even as per the Resolution, with which CBI has no qualm, there was only one post of doctor sanctioned for said Centre. There is nothing to show that there was provision or budget allocation for two doctors at ADC, Aryapura. Dr. Meenu never reported to Dr. Sharma and had complete and exclusive control over ADC Aryapura as she had been signing all the documents.
8.22 As per CBI, a doctor hired on contract basis could not have been made Incharge of any dispensary or Centre and, therefore, Dr. Sharma continued to hold charge of ADC, Aryapura even when he was having additional charge of Panchkarma. Reliance has been placed on deposition of PW17 Dr. Vidhya Sagar. Undoubtedly, pursuant to a court question, he did claim that but it seems to be more of his personal opinion. There is no rule or guideline to that effect. Moreover, in his cross-examination, he did admit that even in his tenure such contract-doctors were made In-charge of dispensaries. He also came up with evasive answer as is apparent from his deposition. Following question, put to him, and corresponding reply would demonstrate the same:-
Q I put it to you that after 05.10.2005 Dr. J.R. Sharma was having exclusive charge of Rajiv Gandhi Panch Karma Hospital, Rajendra Nagar and had no connection with ADC Arya Pura?
Ans. From the record, we could not find out his relieving from ADC Arya Pura.
8.23 Thus, his answer is based on the fact that he had not seen the relieving order and, therefore, Dr. Sharma must be construed as having dual charge. Such inference is not probable one particularly in view of the fact that CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 22 of 71 CBI has not been able to show even a single document signed by him after joining of Dr. Meenu.
8.24 Similarly, PW 18 Dr. Ashok Garg also tried to claim about dual charge by inferring the same on the basis of order. He is only trying to interpret the order. Fact remains that there is no document bearing signatures of Dr. Sharma after the joining of Dr. Meenu which itself is indicative of the fact that he had no concern with ADC, Aryapura thereafter.
WHETHER DR. MEENU MAHINDER ACTED UNDER THE INFLUENCE AND DIRECTION OF DR. J.R. SHARMA 9.0 Such allegation holds the key to all the issues as whole case of CBI revolves around said imputation.
9.1 Dr. Meenu Mahinder has claimed that whatever she did, after her joining ADC Aryapura on 05.10.2005, was at the asking of Dr. J.R. Sharma. In her deposition, she claimed that she had sent indents for various medical kits as per direction of Dr. Sharma. She also claimed that she had signed the indents and had acknowledged the receipt of the articles indented but she did not know whether these medical kits were actually received or not as she had merely signed at the instance of Dr. Sharma. She claimed that entries were made in the stock register at the instance of Dr. Sharma. She also reflected issuance of kits at his instance only.
9.2 I have already noted above that there is no document suggesting Dr. Sharma having any sort of supervision or command over ADC Aryapura after 05.10.2005. Naturally, even CBI was sensing so and, therefore, the involvement in the affairs of ADC Aryapura even after 05.10.2005 is being emphasized and asserted through the verbal testimony of Dr. Meenu Mahinder.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 23 of 719.3 It, therefore, becomes obligatory to find out the reason as to why, if at all, Dr. Meenu Mahinder succumbed to the pressure and influence of Dr. J.R. Sharma.
9.4 Unfortunately, learned SPP has not been able to throw any light over this material aspect. No reason has been assigned as to why Dr. Meenu Mahinder kept on signing such indents and stock registers at the instance of Dr. J.R. Sharma. If at all, she was working under the direction of Dr. Sharma and if she had been sending incorrect indents and issuing the kits illegally or unauthorizedly then there can be three possibilities. Firstly, she was an active participant and associate of Dr. Sharma. Secondly, she was such an imprudent and careless doctor who could have signed anywhere without any rhyme or reason. And, thirdly, she herself is responsible for such entries to the exclusion of all others.
9.5 I am unable to digest that she would keep on signing on all the indents merely on the asking of Dr. Sharma being her senior. She was not an illiterate lady. She was rather a qualified Ayurvedic doctor. She is well-educated. Her husband is also an advocate and if at all she felt that she was being pressurized to commit any wrong or to place order for medical kits which were to be misappropriated later on under her nose and her signatures, she would have immediately reacted and would not have permitted any such activity. Most importantly, she has merely claimed that she signed at his instance but did not specify any reason behind her such act.
9.6 I have not been made aware about any reason which might have compelled Dr. Meenu Mahinder to bow to the pressure of Dr. Sharma. There is no reason which might have given Dr. J.R. Sharma any opportunity to exploit Dr. Meenu Mahinder.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 24 of 71MEENU MAHINDER- ACCUSED OR ACCOMPLICE OR WITNESS 10.0 At this stage, I would also like to remind myself that Dr. Meenu was named as an accused in the FIR. However, during investigation, some inexplicable development took place and it was decided that her statement be got recorded u/s 164 Cr.P.C. Section 164 Cr.P.C. comes into play in two eventualities. It may be used when any confessional statement of any accused is to be got recorded and it can be pressed into service when statement of any witness is to be got recorded u/s 164 Cr.P.C.
10.1 Let me now consider this aspect.
10.2 Her statement u/s 164 Cr.P.C. is contained in D-68. It has been proved as Ex. PW9/A. D-68 happens to be the original statement made by PW9 Dr. Meenu Mahinder before Sh. J.P. Nahar, learned MM, New Delhi on 12.10.2008. A bare perusal of such statement would show that her statement was recorded as if she was a witness. Oath was also administered to her. Whenever confessional statement of accused is recorded u/s 164 Cr.P.C., it is never ever on oath and moreover before getting such statement recorded, any such accused is also required to be warned about the consequences of his/her making any such confessional statement. It needs no discerning eyes to find out that she deposed as a witness when she was examined u/s 164 Cr.P.C.
10.3 It was, therefore, all the more important to see as to what type of application was moved in this regard and whether it was moved by Dr. Meenu Mahinder herself or whether such application had come from the side of CBI?
10.4 PW21 Insp. Anand Sarup was IO at the relevant time and he was the one who had identified Dr. Meenu Mahinder before learned MM. I have seen the testimony of PW21 Insp. Anand Sarup. It was asked from him whether he CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 25 of 71 had told concerned MM that Dr. Meenu Mahinder was named as accused and her name figured in the FIR as an accused. He, however, came up with evasive answer and stated that it was mentioned in the application that her statement was to be recorded as witness and he did not supply any further information to the learned MM. When asked about the application moved in this regard, Ld. SPP could not show the original application. Nobody knows as to where is that original application. Fact, however, remains that copy of such application was shown to the IO by the defence and PW21 Insp. Anand Sarup admitted such copy. Such copy has been proved as Ex. PW21/DA and in such application, it has been very clearly mentioned that statement of Dr. Meenu was to be recorded as witness. It was also mentioned in the application that during the investigation it was revealed that Dr. Meenu Mahinder had not committed any act or omission involved in the matter.
10.5 I take a little pause here.
10.6 I do feel that CBI adopted improper and incorrect strategy on this important score. Dr. Meenu Mahinder had admittedly signed various indents and stock registers etc. even after 05.10.2005. According to her, she had done so at the instance of Dr. J.R. Sharma. In such a situation, she was also involved in such acts or omissions and the proper course would have been to get her confessional statement recorded u/s 164 Cr.P.C. and then if required, she could have been made approver and she could have been granted pardon.
10.7 Undoubtedly, investigating agency is not bound to charge-sheet each and every accused mentioned in the FIR. Only the comprehensive investigation can indicate whether any particular individual has committed any wrong or not. However, as already discussed above, prosecution has not been able to throw any light as to why Dr. Meenu Mahinder kept on signing number of documents merely at the asking of Dr. J.R. Sharma when admittedly Dr. J.R. CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 26 of 71 Sharma had no control over the affairs of ADC Aryapura. Without at least ascertaining the reason of her signing at the instance of Dr. Sharma, it was not appropriate on the part of CBI to have exonerated her all by itself and to get her statement recorded u/s 164 Cr.P.C and to cite her as prime witness.
10.8 I am not able to fathom any reason as to why she kept on signing at the instance of Dr. Sharma. I am not able to find out any reason as to why she did not revolt or react. After all Dr. Sharma was not goonda or muscle-man and there was no reason to have signed under his influence. Dr. Meenu Mahinder has chosen to blame Dr. J.R. Sharma for each and every act of her and she has not bothered to assign any reason as to why she had been doing that. Either she was partner-in-crime or lone wrongdoer. In such typical situation, it would be impracticable to hold that whatever she has deposed is a gospel truth.
WHETHER DR. SHARMA WAS HAVING A PRIVATE CLINIC 11.0 As per the case of CBI, accused Dr. J.R.Sharma was having a private clinic situated in Gur Mandi, Delhi and he used to attend his private patients in such private clinic and there was no facility of laboratory/testing in such private clinic and, therefore, Dr. Sharma used to send samples to ADC, Aryapura for testing and the medical kits were misused and misappropriated for testing of samples of such private patients.
11.1 Ld. SPP for CBI has contended that it stands proved on record that Dr. Sharma was having a private clinic and samples used to be brought to ADC Aryapura for testing in unauthorized and illegal manner.
11.2 Let me scrutinize such fact.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 27 of 7111.3 PW9 Dr. Meenu Mahinder has claimed in her deposition that Dr. J.R. Sharma was having a private clinic at Gur Mandi, Delhi from where one boy known as Chhotu @ Raju used to bring blood samples and used to hand over the same to Lisa Paul for testing. She also claimed that entries with respect to such patients of private clinic used to be recorded in lab test register as "new" patients and no OPD No. used to be given to such patients. According to her, even Lisa Paul used to stay at such private clinic of Dr. J.R. Sharma. However, her such assertion is hearsay in nature as such fact was revealed to her by Lisa Paul only. In her cross examination, she admitted that she did not know the exact address of such clinic. She failed to reveal the address of the same. So much so, she claimed that she never visited such clinic. She asserted she was mentioning about the existence of such private clinic as such fact was told to her by Dr. Sharma himself. She does not know residential address of Dr. J.R. Sharma. She had never been to the house of Dr. J.R. Sharma either. She claimed that one Raj Kumar @ Chhotu used to come to ADC, Aryapura but supplemented that she had only seen him but never met him. She had deposed that she had seen that boy used to hand over samples to Lisa Paul but she herself had never seen those sample vials and did not read the details on any such vial. She also claimed that she could not say as to what used to be contained in the packets brought by that boy. According to her, Lisa Paul had told her that boy used to come from the clinic of Dr. Sharma. She also claimed that she never saw any report prepared by Lisa relating to those samples. She does not know who used to sign those reports as doctor. She also never objected to any such testing. Thus her testimony is primarily hearsay in nature and she does not have any personal knowledge about any such private clinic of Dr. J.R. Sharma.
11.4 As per PW13 Radha Pyari, samples used to be brought from private clinic of Dr. J.R. Sharma and Lisa Paul conducted tests with respect to such samples but she also does not know as to where such private clinic of Dr. CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 28 of 71 J.R. Sharma was situated. She herself did not ask Raj Kumar @ Chhotu as to why he used to bring samples there. She did not make any complaint to Dr. Meenu Mahinder. She also does not know whether Dr. Meenu Mahinder had herself made any complaint anywhere in this regard or not. Surprisingly, in her further cross examination, she claimed that she did not know as to what used to be done with such samples.
11.5 PW14 Suman Bala, ANM, ADC, Aryapura has given some twist as according to her such clinic was of brother of Dr. J.R. Sharma. Her testimony is, further, of no avail as she had admitted in her cross examination that she had never seen anyone bringing anything from such clinic of brother of Dr. Sharma. Interestingly, she claimed that she learnt such fact of private clinic merely one or two months before her deposition. Curiously, her deposition was recorded on 06.06.2012.
11.6 PW21 Inspector Anand Swaroop and PW22 SI Manoj have graced the witness box but have not whispered even a single word in their examination- in-chief with respect to ever raiding such private clinic of Dr. J.R. Sharma.
11.7 After all, as per the case of prosecution, Dr. J.R. Sharma was having a private clinic at Gur Mandi. He himself was running such private clinic. Samples used to be brought from there and used to be tested at ADC, Aryapura and as per the prosecution story there was no laboratory at such private clinic. These are crucial allegations but fact remains that prosecution has not been able to prove the same in the desired manner.
11.8 Interestingly, on careful perusal of the record, I came across search-cum-seizure memo which indicates that such alleged private clinic of Dr. Sharma was raided on 10.07.08. Such raid was with the permission of the court as the search warrants had been issued by the court vide order dated CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 29 of 71 08.07.2008.
11.9 Search Memo is found to be signed by Inspector A. Satya Moorthy and SI Manoj Kumar of CBI besides others. Inspector A. Satya Moorthy has not graced the witness box and as already noticed above SI Manoj Kumar has also not whispered even a single word regarding such search dated 10.07.2008 in his examination-in-chief. As per such search memo, Dr. Shivani Kapil (daughter of Dr. Sharma) reached the hospital at 07.15 AM and she was shown the search warrants and she acknowledged the receipt of search warrants and also told that Dr. Shalu Kapil, BDS used to operate the affairs of Dr. Sharma's clinic. Such memo is found to be signed by Dr. Shivani Kapil and various registers were also seized during such search operation. These included registers containing details of In-patients of Dr. Sharma's clinic.
11.10 I do not know as to why these registers have been held back. These registers including OPD registers would have certainly indicated as to who was running that private clinic. It would also have reflected names of the patients being treated there. It would have also reflected whether any such patient ever gave any sample for blood test. It would have also reflected as to what fee was paid by such patients and what the result of such samples was? The manner in which registers have been held back and have not been made part of the relied upon documents only indicate that these were not supporting the prosecution theory and were rather flattening and knocking down the same.
11.11 PW10 Lisa Paul, whose testimony I would refer to in detail in later part of my judgment, has claimed that such private clinic was of Dr. Jyoti Prasad (father of Dr. J.R. Sharma). She also claimed that accused J.R. Sharma was not residing with his father.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 30 of 7111.12 Admittedly, as per the search memo also, accused Dr. J.R. Sharma was neither found residing at such private clinic nor was found involved with the affairs of such private clinic.
11.13 Thus CBI is coming up with various contradicting versions. It is not clear as to where such clinic was situated. It is not clear as to who used to run such clinic - whether Dr. Jyoti Prasad (father of accused Dr. J.R. Sharma) or whether brother of Dr. J.R. Sharma or whether daughters of Dr. J.R. Sharma or whether Dr. J.R. Sharma himself. Merely because his relatives were running such clinic, it cannot be automatically inferred that Dr. J.R. Sharma was himself also actively involved with the affairs of such private clinic.
11.14 Moreover, there is no material whatsoever to indicate that there was no laboratory in such private clinic. SI Manoj Kumar who was admittedly part of the search team should have very specifically said something in this regard but his testimony is conspicuously silent on this score. As per the specific case of CBI, there was no private laboratory/testing facility in such private clinic and it was, therefore, obligatory on the part of the CBI to have proved so. Fact remains that such fact has also not been proved at all.
11.15 It is intriguing to find out as to how CBI was able to lay its hands upon some patients who allegedly took treatment from such private clinic.
11.16 I have seen testimony of PW8 Kusum Jain and also PW16 Pradeep. PW8 Kusum Jain has deposed that she used to take treatment from Dr. Sharma at his private clinic. She also claimed that Dr. Sharma also used to conduct test at his residence as well as at his private clinic and used to charge for such testes. Her testimony rather goes on to show that there was some testing facility at such private clinic which fact runs contrary to the case of prosecution. Be that as it may, I am not able to figure out as to how CBI was CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 31 of 71 able to track such patients. CBI has not been able to throw any light over said aspect and I cannot be oblivious of the fact that PW8 Kusum Jain knows Dr. Meenu Mahinder from a very closed quarter. She knows about her in-laws also. She knows about her parents also. To that extent, she cannot be said to be a totally neutral and independent witness. PW16 Pradeep has also been labeled as a private patient who used to take treatment from Dr. Sharma from his private clinic. This witness did not wholeheartedly support the case of prosecution but fact remains that he, in no uncertain words, admitted that he was related to Dr. Meenu Mahinder. His testimony, therefore, also does not lend any real credence to the theory of there being a private clinic being run and managed by Dr. J.R. Sharma alone.
11.17 Similarly, testimony of PW12 Dr. Rajesh Sharma has also demolished CBI version as he has not supported the CBI case and denied that Dr. Sharma was running any private clinic at 95/A, Rajpura, Gur Mandi, Delhi. During investigation, he had revealed that there was such private clinic where he also used to go as a visiting doctor but in his deposition made before the court he has out rightly disowned such theory. He was confronted with various parts of his previous statement Ex.PW12/A but he denied having made any such statement.
11.18 Thus there is not enough clarity with respect to the fact that Dr. J.R. Sharma was having a private clinic much less its exact location or address and much less whether such private clinic was dehors the testing facility/lab.
MYSTERY SHROUDING LISA PAUL 12.0 According to CBI, accused had privately hired Lisa Paul who used to work as lab technician at ADC, Aryapura. She was working there without any CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 32 of 71 authorization or order from MCD and her services were utilized for misappropriation of medical kits.
12.1 Let me now come to the testimony of Lisa Paul.
12.2 PW10 Lisa Paul claimed that she was from Kerala and was working as lab technician for about 2-3 months in 2004 and she did not know Hindi and, therefore, she could not find any job. She, as suggested by her friend, took up a job of attending Jyoti Prasad, an old & sick person so that she could serve him and could also learn Hindi from him. She claimed that she was provided accommodation, food etc by Jyoti Prasad who was residing at upper floor and there was a clinic at ground floor but surprisingly she does not know as to who used to run that clinic. She does not know as to where Dr. J.R. Sharma (son of Jyoti Prasad) used to reside. She, however, claimed that he was not residing with his father. She further deposed that Jyoti Prasad died in October, 2005 and before his death i.e. somewhere in March, 2005 she had gone with Jyoti Prasad to Town Hall for the purposes of interview with one DHO where she was told that there was some vacancy in Aryapura and she was also asked by that officer to go to Aryapura dispensary for gaining experience without any remuneration and accordingly she started going there. She also admitted that Dr. Sharma also used to be there. She claimed that she was called for interview but she was not given any result and she kept on coming to Aryapura as before. She also admitted that she was making entries in the lab register and she used to write in English. Her testimony only indicates that she was employed by Jyoti Prasad. Her testimony also indicates that she was asked to go Aryapura as lab technician on charity basis and she finally left Delhi in 2007.
12.3 Since she was not found supporting the case of prosecution, she was declared hostile and was cross examined by prosecution at length but despite her exhaustive grilling, she did not come up with anything further in CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 33 of 71 favour of prosecution. She denied that Dr. J.R. Sharma had asked her to come to ADC Aryapura as lab technician and had offered her salary of Rs.3000/- per month. She also denied that Dr. Sharma was having private clinic. She rather admitted that she had been working in ADC Aryapura from 05.10.2005 till 06.07.2007 under the direction of Dr. Meenu Mahinder.
12.4 As already noticed above, case of the CBI was very pin-pointed. According to CBI Lisa Paul was privately hired by Dr. J.R.Sharma and Dr. Sharma used to pay to her from his own pocket. However, such fact has been out-rightly denied by Lisa Paul. According to PW9 Dr. Meenu Mahinder, Lisa Paul had been kept by him on private basis. Undoubtedly, Lisa Paul was working there as lab technician but no one ever objected to her such work. Fact, however, remains that it was obligatory on the part of the prosecution to have brought convincing material on record to show that Lisa Paul had been hired by Dr. J.R.Sharma.
12.5 Undoubtedly, there is some sort of connection between Dr. J.R.Sharma and Lisa Paul as Lisa Paul was serving his father but in any criminal trial, prosecution has to prove facts beyond reasonable doubt and decision on the basis of mere inferences is not appropriate. PW15 Madan Singh Negi is also important witness for prosecution and he rather claimed in his deposition that Lisa Paul came to ADC, Aryapura as temporary arrangement and that there was some order from higher ups for her arrangement in the centre. He also nowhere deposed that Lisa Paul had been privately hired by Dr. J.R.Sharma.
12.6 PW18 Dr. Garg joined ADC, Aryapura in July 2007. He finds one lab technician working there but removes her. He has, however, not given the date when he fired her. Surprisingly, in his examination-in-chief, he also fails to tell the name of such technician. Moreover, kits worth Rs. 4 lacs approximately were utilized during his tenure as well as per his own admission. It's not clear as CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 34 of 71 to in what manner he had used those kits as he had already removed that technician and he himself did not know how to use the laboratory equipments.
FUNDS ALLOCATION FOR ADC, ARYAPURA 13.0 I have already discussed above that ADC, Aryapura was established because of its strategic location and there was a sanction of Rs.15 lacs for the purposes of medicines and laboratory. Such expenditure sanction of Rs.15 lacs was further enhanced to Rs.25 lacs as even admitted by Ashok Garg.
13.1 Now, it would be hardly believable that laboratory at ADC, Aryapura which had been established with a budget of Rs.25 lacs was required to undertake testing of blood sugar with simple handy machine. It is not digestible that there would have been a sanctioned expenditure of Rs.25 lacs for establishing laboratory with an idea to test blood sugar with simple handy machine. Reserving and sanctioning a sum of Rs.25 lacs per annum for medicines and laboratory itself indicate that such laboratory was to be set up on a larger scale. As per CBI, laboratory was to be created only for the purposes of simple test with handy machine and Dr. J.R.Sharma, in collusion and conspiracy with his co accused, made it a full-fledged laboratory and it was converted into a referral laboratory with the idea to misappropriate the medical kits so allocated.
13.2 However, such contention is also liable to be discarded out-rightly. It was never the idea of MCD to allocate such big amount for a handy machine which can be procured by spending few bucks. Lab Technician is not required to be recruited for conducting test with such basic and handy glucometer which can be operated by any person in the modern age when rather Mobile equipment seems much more complicated.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 35 of 7113.3 Resolution Mark PW17/C (D19) clearly indicates that such proposed diabetic centre was to be utilized as specialized Ayurvedic Centre and other dispensaries of MCD could also refer the patients.
13.4 In terms thereof another circular Mark PW17/D (D29) was issued by Dr. V. P. Kannoji whereby all the medical officers of the department were informed about the establishment of ADC, Aryapura and were asked to refer the patients.
13.5 Ld. SPP says that such circular issued by Dr. Kannoji was not in consonance with circular Mark PW17/C and was rather against the spirit of resolution Mark PW17/C. 13.6 I am not able to understand as to on what basis such inference has been drawn.
13.7 Mark PW17/D is completely in synchronization with resolution Mark PW17/C. Primarily Dr. Kannoji has been roped into conspiracy because of his issuing such circular Mark PW17/D and an attempt has been made by CBI to show that such circular was brought in order to misappropriate the kits by making ADC, Aryapura a referral laboratory.
13.8 However, such interpretation of CBI is liable to fall flat as Resolution of MCD clearly indicates that ADC, Aryapura was to be treated as referral laboratory. Moreover, if there was any ill motive of misappropriation, would Dr. Kannoji have come out with circular Mark PW17/D? If Dr. J.R.Sharma and Dr. Kannoji wanted to misappropriate the medical kits, they would have rather been happy as it is and Dr. Kannoji would not have then issued any circular. Previous Resolution was very much implicit of the fact that ADC, Aryapura was to be CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 36 of 71 considered a referral centre. By issuing such circular to all the medical officers of MCD, rather Dr. Kannoji was making it public that there was a laboratory with all the related facilities and the other medical centers could refer their patients to such laboratory. This was going to increase the inflow of patients and thereby there would have been a lesser chance of misappropriation of medical kits, if I subscribe to the stand of CBI.
13.9 I am really unable to understand as to how anyone can infer any mal-intension behind such circular of Dr. Kannoji.
13.10 It would be also important to mention that Dr. Vidhya Sagar Gupta during investigation asserted before CBI that circular issued by Dr. Kannoji was not in the true spirit of resolution but when PW17 Dr. Vidhya Sagar Gupta graced the witness box, he took a complete somersault. He rather claimed that he had no personal knowledge about such circular issued by Dr. Kannoji and he also did not given his comment or interpretation with respect to such circular. Surprisingly, CBI felt satisfied with his such deposition and did not attempt to seek any permission from the court to re-examine him.
REQUIREMENT OF A LAB-TECHICIAN 14.0 Undoubtedly, when a full-fledged laboratory was proposed to be set up at ADC, Aryapura with a budget of Rs.15 lacs which was later on enhanced to Rs.25 lacs, there was also urgent need of there being a lab technician.
14.1 I have seen the testimony of various witnesses and it becomes very much evident that there was a great inflow of OPD patients in said ADC, Aryapura.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 37 of 7114.2 As per PW13 Radha Pyari, daily OPD of ADC, Aryapura used to even touch 300-350 patients out of which 75-80 OPD patients used to be referred to laboratory for tests. PW14 Suman Bala has also claimed that daily OPD was of more than 300 and 60-70 people out of same used to be tested for blood/urine on daily basis. Similarly, PW15 Madan Singh Negi has also claimed that daily OPD was of 300 patients. Even Dr. Meenu Mahinder has admitted in her cross examination that as per OPD registers i. e. Ex.PW9/D37 (D3) and Ex.PW9/D38 (D4), there used to be visit of more than 100 patients per day and approximately 30-65 persons used to undergo tests. She, however, volunteered that these were blood sugar tests but this does not seem to be the right answer.
14.3 Diabetes is an ailment which spreads further and affects various vital organs like heart, kidneys, eyes etc. Therefore, any laboratory set up and dedicated for diabetes would not be confined to the testing of glucose level in blood stream through simple gluco-meter which anyone can use even at home. Even PW18 Dr. Ashok Kumar Garg has admitted that ADC, Aryapura was meant for specialized treatment of diabetic patients and tests of LFT, KFT, Glycosylated, Hb, Pancreatic (serum amylase) also related to diabetic. He also admitted that all the important vital organs like heart, kidneys, lever, nerve were related to diabetes and depending upon the condition of the patients, said tests related to said organs can also be said to be related to diabetes as specialized diabetic treatment.
14.4 Naturally, therefore, there was an urgent requirement of lab technician. With the effort of Dr. J.R.Sharma, there was an office order to that effect. Such office order dated 17.05.2005 has been proved as Ex.PW6/A (D18) whereby one Sh. Surender Sharma was ordered to be posted at ADC, Aryapura for alternate days. Fact, however, remains that such official Sh. Surender Sharma was already posted as lab technician, Hindu Rao Hospital and could not be relieved because of shortage of staff and thus ADC, Aryapura could not have CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 38 of 71 any lab technician.
14.5 As per deposition of Dr. Garg, he came to know that S.K. Sharma was posted as Lab Technician on 17.05.2005 in ADC Arya Pura and that he did not join. He, however, failed to assign any reason as to why said technician did not join and came up with evasive reply as under:-
Q Did you come to know when you joined as to who worked as Lab Technician when S.K. Sharma did not join?
Ans. I did not come to know anything in this regard.
14.6 I also feel that to a very large extent, Dr Garg is responsible for waste of medical kits as he let those allowed to expire. He did not make use of kits lying in the store for whatever his own fanciful reasons. He should have at least informed his superiors about non-availability of lab-technician and alleged expiry of kits immediately when he joined ADC, Aryapura but his first communication is virtually after one year of his joining.
14.7 To some extent, the concerned higher authorities of MCD are liable for instant mess. Infrastructure was created and even funds were allocated.
Sanctioning a sum of Rs.15 lacs per annum way back in 2003 was not a small amount and health department of MCD should have also ensured that there was a lab technician for handling all the sophisticated equipments and properly utilize the medical kits meant for such specialized treatment. I rather feel that in such a situation even if it is assumed that Lisa Paul was asked by Dr. J.R.Sharma to come to ADC, Aryapura and to conduct tests even on charity basis, it would not by itself amount to any criminal misconduct. Let me convert this proposition in a simple manner. Let me assume that a government official is given and provided an official vehicle for office work but is not provided with any driver. In such a situation if such government servant hires any private driver for CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 39 of 71 putting in to use such official vehicle, can it be said that such official has committed any criminal misconduct? Answer has to be in emphatic "no". If MCD had provided the infrastructure, it should have also provided the man- power. Infrastructure had been provided and the laboratory equipments including semi auto analyzer were provided and if in such a situation the concerned doctor at ADC, Aryapura chooses to wait, for indefinite period, for any authorized and officially appointed lab technician then these medical kits would have rather gone to drain and would have expired. Instead of letting those expire, even if some lab technician was asked to come there even on charity basis it was rather for the benefit of the health department and not to the detriment of the health department. Though ideally, Dr. Meenu Mahinder, during whose tenure demand worth Rs. 49 lacs was raised, should not have raised any indent and should have rather informed OIPS and DHO(ISM) that there was no authorized lab-technician. She kept on sending request after request for kits and chemicals and seeks her exoneration on the ground that she did that at the behest of Dr. Sharma. Her such stand does not seem to be palatable. Demand raised during the tenure of Dr. Sharma is of very less value as compared to Dr. Meenu's tenure.
14.8 Indents of the tenure of Dr. Meenu i.e. post 05.11.2005 have been proved as Ex.PW9/B1 to PW9/B1. These are contained in D-41 to D-51. Admittedly, demands contained in indents D-41, 43-45 are of the tenure of Dr. Sharma but the articles under such demands were also received by Dr. Meenu in Nov'05 and Dec'05 when Dr. Sharma was not in picture. As per case of CBI, the alleged misappropriation is of the period Nov'05 to July'07. It will be also important to mention here that formal request is called demand and when such demand is processed and proposal is prepared and approval is received, such articles are purchased and supply is made and then concerned CMO sends requests for arranging such articles and appends acknowledgment on same paper. Such request is labelled as indent. Demands are contained in Ex.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 40 of 71PW9/D and Ex. PW9/16 to Ex. PW9/18. Though demands were made by Dr. Sharma yet he is not signatory to any indents i.e. D-41 to D-51.
14.9 Dr. Sharma evidently seems instrumental in creation of laboratory and he made created infrastructure virtually single-handedly and also impressed upon authorities to post lab technician. This all was as per Resolution No. 17. Earlier, he himself was doing glucose test with Handy machine and some other petty i.e uncomplicated tests like SGOT, SGPT, Hb, TLC, DLC,ESR etc with help of microscope and for that he did not require any technician. He raised demand of chemicals only after receiving machines. Supply related to chemicals was deferred by OIPS. Supply of chemicals was only on 24.10.2005 i.e. after the tenure of Dr. Sharma.
14.10 CBI has no issue with either any purchase or any misappropriation of the period prior to November 2005 and stock worth Rs. 49 lacs approximately was purchased during the tenure of Dr. Meenu and stock was received by her and ultimately used by her as well. Dr. Meenu was also happy and satisfied with Lisa Paul and permitted her to continue without raising any eyebrows and also permitted her to keep on sitting in laboratory, making entries in lab-test register and conducting tests there.
MYSTERY BEHIND WORD "NEW" IN LAB REGISTERS 15.0 One of the prime allegations against accused Dr. J.R. Sharma is to the effect that he was sending blood samples of his private patients to ADC Aryapura for testing and such patients were being described as 'new' patients in relevant registers maintained at ADC Aryapura.
15.1 Sh. Jagbir Singh, learned SPP has contended that such illegal act on the part of accused Dr. J.R. Sharma, which continued even during the tenure CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 41 of 71 of Dr. Meenu Mahinder, clearly reveals misappropriation of medical kits. According to him, such kits were meant for the patients who were coming to ADC Aryapura for specialized treatment but Dr. Sharma sent blood samples of his private patients and used official medical kits for testing their blood samples.
15.2 I have already discussed above that there is not enough clarity whether accused Dr. J.R. Sharma was having a private clinic and it is also not made clear by CBI whether such clinic was having any laboratory or not.
15.3 PW9 Dr. Meenu Mahinder has deposed that Dr. Sharma was having one private clinic at Gur Mandi and one Chhotu @ Raju used to bring samples there which used to be further handed over to Ms. Lisa Paul for testing and in the lab test register, entries used to be made regarding such private patients and such private patients used to be mentioned as new patients and no OPD number used to be given to such patients.
15.4 Before coming to the lab registers as such, let me see as to whether any other import of word "new" has been given by any other witness or not.
15.5 PW10 Ms. Lisa Paul, the most crucial witness has given a different meaning to word new.
15.6 According to her, she had mentioned word new against some of the entries as per the request of other staff officials and these patients were new patients. She further claimed that these indicated those patients who used to come only for tests and, therefore, there was no OPD number for such patients. It was suggested to her that word new referred to those patients who were referred for blood test by Dr. J.R. Sharma from his private clinic but she labelled such suggest as incorrect. Her deposition evidently runs contrary to case of CBI.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 42 of 71Her stand cannot be brushed aside casually. She was the one who was making entries in register kept at laboratory and carrying out test. She was the best person to have described the exact meaning of word new mentioned by her in English in lab registers.
15.7 PW15 Sh. Madan Singh Negi has given another meaning to word new. His testimony is important because he also used to make entries in stock registers at the request of Lisa Paul as there used to be huge rush of patients. Naturally, as a peon, he was not supposed to make any entry as this was not the job assigned to him. PW13 Ms. Radha Pyari was supposed to maintain the stock registers. It has, however, come on record that she was suffering from Parkinson disease and, therefore, Sh. Madan Singh Negi used to work on her behalf in ADC Aryapura. PW13 Ms. Radha Pyari also deposed that she was having dual charge i.e. charge of ADC Aryapura as well as of Parwati Devi Hospital situated in the same building and, therefore, Sh. Madan Singh Negi used to work on her behalf. It was also noticed that because of her said ailment, she was not able to affix her thumb impression on her testimony. Be that as it may, PW15 Sh. Madan Singh Negi has come up with another definition with respect to entries made by Lisa Paul in English and remaining entries made by him in Hindi in lab test registers. He claimed that word new used to be written in order to indicate those patients who used to enter ADC building by jumping the queue whenever there was huge rush of patients for testing.
15.8 PW18 Dr. Ashok Garg has, astonishingly, pleaded his ignorance as to what was meant by word new. He though expressed his surprise about the use of such word but fact remains that he could not give any reason behind mentioning the word new in the lab test registers. Moreover, he does not recall what he told about those lab registers. Following answers given by him would demonstrate the same:-
"....I cannot say whether anything regarding my answers CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 43 of 71 pertaining to lab test registers is mentioned in my statement or not. Lab test registers were of the period of Dr. J.R. Sharma as well as of Dr. Meenu Mahinder but I do not remember as to what were the queries and what were my replies with respect to those registers."
15.9 Following chart would describe such lab-registers:
S. No. Duration D Number Exhibit Number
1 16.04.2005 to 29.07.2005 D-10 PW13/A
2 30.07.2005 to 12.01.2005 D-11 PW10/B
3 16.04.2005 to 14.05.2005 D-12 PW13/B
4 14.01.2006 to 20.05.2006 D-20 PW9/D39
5 22.05.2006 to 15.09.2006 D-21 PW10/DA
6 16.09.2006 to 18.01.2007 D-22 PW9/D34
7 22.03.2007 to 23.04.2007 D-23 PW9/D4
8 24.04.2007 to 23.05.2007 D-24 PW9/D36
9 31.05.2007 to 09.07.2007 D-25 PW9/D41
15.10 It is noticed that duration of register D-10 is from 16.04.2005 to
29.07.2005 and duration of register D-12 is also a bit overlapping as it is from 16.04.2005 to 14.05.2005. I have not been able to ascertain as to why there were two registers for the same period. CBI has also not bothered to throw any reason behind there being two registers for the same duration. I have seen various entries appearing in such registers. In various entries word new has been mentioned and there is a tick mark ( ✓) against name of the test. I really do not understand as to what is meant by such tick mark in the lab test register. Undoubtedly, values as per test-results should have been mentioned so that if any patient requires a duplicate test report, same can be prepared on the basis of values mentioned in the lab test register. It seems that manner in which such registers were maintained at ADC Aryapura leaves much to be desired. Manner was evidently deplorable. In all the aforesaid registers, merely a tick mark has been put without bothering to mention the values.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 44 of 7115.11 As already discussed above, according to prosecution, entries in such lab registers as appearing in English were in the hand of Ms. Lisa Paul and other Hindi entries were in the hand of Sh. Madan Singh Negi.
15.12 PW10 Ms. Lisa Paul was shown only one register i.e. D-11 in her examination-in-chief. This register is for the period 30.07.2005 to 12.01.2006 and I am not able to comprehend as to why other registers were not shown to her. She was shown only few pages of such register D-11 i.e. page no. 102, 103 (of 05.10.2005), page no. 104 & 105 (of 06.01.2005), page no. 106 & 107 (of 07.10.2005), page no. 108 & 109 (of 08.10.2005), page no. 110 & 111 (of 10.10.2005) and page no. 112 (of 11.10.2005) and she admitted that word new was in her hand.
15.13 It is really baffling as to why other entries appearing in same register and entries appearing in other test registers were not shown to her.
15.14 Let me see the testimony of PW9 Dr. Meenu Mahinder. Surprisingly, when she entered into witness box for the purpose of examination- in-chief, no lab register was shown to her.
15.15 With respect to conducting of test, it was asked from her whether she herself also used to conduct sugar test, urine test and pregnancy test. She claimed that she used to do those except for urine test. According to her, she used to conduct tests in the absence of Lisa Paul. When she was shown register D-22, she admitted that at page 79, there was list of 24 tests conducted on 05.01.2007 and all such tests were conducted by her. She also admitted some other entries appearing in the same register as well as in register D-24. In register D-24, she admitted that several entries were made by her and she had mentioned name and OPD number. She was also shown register D-11 which is very important because it is for the period 30.07.2005 to 12.02.2006 and when it CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 45 of 71 was asked from her whether it was not correct that there was no entry of new patients in such register from 14.12.2005 to 05.01.2006, she claimed that she could not answer as entries were not in her hand and she did not use to maintain the register. She also claimed that she could not say as to who had made those entries.
15.16 So much so, she also claimed that she could not say whether these entries were in the hand of Lisa Paul or not. She also admitted that there was no entry of new patients in register D-20 i.e. Ex. PW9/D39 from 14.01.2006 to 20.05.2006. She also claimed that she did not know whether Lisa Paul could write Hindi or not. She also claimed that she had never seen her signatures. Similarly, when she was confronted with register D-21 and was asked whether word new was mentioned anywhere in such register, she admitted that word new has not been mentioned in said register anywhere in English. Such register is for the period 22.05.2006 to 15.09.2006.
15.17 She also claimed that she did not sort out or prepare any list of the alleged private patients. Even PW22 Insp. Manoj Kumar admitted that no list was prepared showing any disagreement with respect to the entries of patients appearing in OPD register viz a viz lab test register. I feel that these was the important facet of the case and prosecution should have come up with specific table containing the names of those patients whose names though appeared in lab registers were not in agreement with the entries appearing in OPD registers.
15.18 Merely by vaguely claiming that there was disagreement in the entries, prosecution cannot be said to have discharge its onus. Such task cannot be left to the Court that too when the case is at the stage of judgment. Prosecution should have categorically proved such fact. Unfortunately, CBI has shown little bit lethargy on this score. PW10 Lisa Paul, who had made entries in English in lab test register, was shown only one register. Getting her handwriting CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 46 of 71 proved through other witnesses was not proper when the primary evidence was available at the elbow of CBI.
15.19 I have seen the OPD register as well as the corresponding lab test register. Usually, if any patient goes to any dispensary, he would first be examined by the doctor and his name would be entered in the OPD register and he would be accordingly allotted OPD No. If any patient is re-visiting the same dispensary then there is a possibility that he may be examined on the basis of his old OPD No. If any such patient, whose name has been recorded in the OPD register, is to undergo any test in laboratory then the prescription would indicate so. In lab register, his name would be entered at the time of giving sample etc. 15.20 I can easily understand that any old patient revisiting the dispensary and already possessing OPD card is not required to be issued any new OPD number and even if he wants to undergo any test, necessary prescription in this regard can be made by the doctor in the OPD card itself. Prosecution has not been able to make it clear whether in such a situation, there was any requirement of mentioning name of any such old patient in the OPD register as well.
15.21 Be that as it may, fact remains that essentially, name of the patient has to first figure in the OPD register and then in lab test register.
15.22 During the course of arguments, Sh. Puri came up with a novel situation and asserted that contention that if any patient comes for test alone then lab assistant can record his/her name in the lab test register directly and after obtaining test report, such patient can be examined by the doctor, if required and OPD number can be generated subsequently. Sh. Puri has, thus, contended that there is no hard and fast rule that name of patient has to be CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 47 of 71 first recorded in the OPD register and thereafter only in the lab test register.
15.23 Though, his contention cannot be rejected out-rightly but as already said above primarily and preferably, patient has to see the doctor first and it is for the doctor to decide whether such patient requires any test. Lab technician cannot usurp such powers. Exceptions, however, can always be there.
15.24 I have seen OPD register D4 (Ex. PW9/D8) and the corresponding lab test register i. e. D10 (Ex.PW13/A).
15.25 First entry in lab test register is of 16.04.2005 and names of 28 patients, who underwent various tests that day, are mentioned therein. OPD register for 16.04.2005 indicates that 85 patients reported for OPD. These included old as well as new patients. Said fact is being inferred because of the noting appearing in the last which mentions that there were 40 new patients and 45 old patients. OPD number allotted that particular day was from 5271 to 5310. As already noted, 28 patients were examined in laboratory that day and word "new" is mentioned against 11 names. OPD number is found mentioned against the names of remaining 17 patients. These 17 patients, thus, included new as well as old patients as is evident from the OPD numbers appearing against their names.
15.26 I have seen the various other entries of various other dates and same pattern is found to be there.
15.27 Since CBI did not attempt to make any chart to suggest that the entries in two registers were in disagreement, court had to embark on such arduous task all by itself. When various entries were tallied and re-tallied, it came to the light that some names ascribed to new, which according to CBI were forged entries and were not given any OPD number and pertained to private CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 48 of 71 patients of Dr. Sharma, were found mentioned in OPD register of corresponding date.
15.28 It will be daunting and taxing task to extract all such entries here. But, few sample dates were picked up and first ten or so entries of word New were tallied with OPD register and following chart would indicate that in fact there were OPD numbers to even some of such patients labelled as new:-
S. Patients against whom Word Whether Mentioned in
No. New Mentioned in D-10 Lab Corresponding OPD Re-
Test Register gister, if yes, at what
number
(Dated 19.04.2005)
1 Asha at serial no. 1 OPD No. 5311
2 Renu at serial no. 2 OPD No. 5312
3 Varun at serial no. 3 --
4 Manju at serial no. 4 OPD No. 5313
5 Harish at serial no. 5 OPD No. 5315
6 Ravi at serial no. 6 OPD No. 5358
7 Om Prakash at serial no.7 -
8 Deepti at serial no. 8 -
9 Mahadev at serial no. 9 OPD No. 5367
10 Prabha at serial no. 10 -
S. Patients against whom Word Whether Mentioned in
No. New Mentioned in D-10 Lab Corresponding OPD
Test Register Register, if yes, at what
number
(Dated 20.04.2005)
1 Karan Singh at S. No. 3 OPD No. 5374
2 Jagdish at S. No. 5 OPD No. 5375
3 Kanta at S. No. 6 -
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 49 of 71
4 Savita at S. No. 8 OPD No. 5447
5 Vinita at S. No. 9 -
6 Meena at S. No. 10 -
7 Raj Kumar at S. No. 13 OPD No. 5389
8 Rajender at S. No. 14 -
9 Poonam at S. No. 16 OPD No. 5426
10 Sohan Lal at S. No. 20 -
S. Patients against whom Word Whether Mentioned in
No New Mentioned in D-10 Lab Corresponding OPD
Test Register Register, if yes, at what
number
(Dated 21.04.2005)
1 Veena at S. No. 1 OPD No. 5451
2 Abdulla at S. No. 3 -
3 Sohan Lal at S. No. 4 OPD No. 5455
4 Ram Prakash at S. No. 6 -
5 Harish Chand at S. No. 8 OPD No. 5462
6 Girish at S. No. 12 -
7 Nain Singh at S. No. 15 -
8 Ankeet at S. No. 16 -
9 Laxman at S. No. 17 -
10 Krishna at S. No. 20 -
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 50 of 71
S. Patients against whom Word Whether Mentioned in
No. New Mentioned in D-10 Lab Corresponding OPD
Test Register Register, if yes, at what
number
(Dated 18.05.2005)
1 Sachin at S. No. 1 -
2 Bhagwan Devi at S. No. 2 -
3 Suman at S. No. 5 OPD No. 6782
4 Krishna Devi at S. No. 6 OPD No. 6760
5 Pushpa Kanta at S. No. 9 OPD No. 6792
6 Hitesh at S. No. 10 OPD No. 6765
7 Bimla at S. No. 11 -
8 Usha Rani at S. No. 12 OPD No. 6767
9 M.L. Gupta at S. No. 13 OPD No. 6771
10 Nirmala at S. No. 17 OPD No. 6779
S. Patients against whom Word Whether Mentioned in
No. New Mentioned in D-10 Lab Corresponding OPD
Test Register Register, if yes, at what
number
(Dated 24.05.2005)
1 Priyanka at S. No. 2 -
2 Rajender at S. No. 3 -
3 Mridhu at S. No. 4 -
4 Dheeraj at S. No. 6 OPD No. 6998
5 Ganga at S. No. 7 -
6 Imran at S. No. 8 OPD No. 7000
7 Mukesh at S. No. 9 -
8 Sarita at S. No. 10 -
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 51 of 71
9 Sangram at S. No. 12 -
10 Moti Lal at S. No. 14 -
11 Sunita at S. No. 15 OPD No. 7031
12 Kavita at S. No. 16 OPD No. 7030
13 Dharam Pal at S. No. 17 OPD No. 7024
14 Rajender at S. No. 18 -
15 Amit at S. No. 19 -
15.29 It would unmistakably demolish the case of CBI.
15.30 Consistent case of the CBI is to the effect that word "new" was
mentioned for those patients who are private patients of Dr. Sharma and on this score prosecution was heavily relying upon the outcome of testimony of Lisa Paul. Said chart will reveal that even some such patients were treated in OPD and thus the entries were not forged. Lisa Paul, as already noticed above, did not support the case of prosecution and was painstakingly grilled by the prosecution but despite that she did not come to rescue of prosecution.
15.31 It would be also important to mention that she does not know how to write in Hindi and, therefore, wherever word "new" is mentioned in Hindi, it was written by Madan Singh Negi but Madan Singh Negi has, as already referred above, come up with another fantastic explanation regarding word "new" as according to him, "new" meant those patients who used to jump the queue and who were not given any registration number of OPD. This version is coming from a very material prosecution witness and this puzzling explanation given by PW15 Madan Singh Negi has created some apprehension in the mind of the court.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 52 of 7115.30 A careful perusal of the OPD register would show that some strange number has been mentioned in the last column of Remarks (Tipni) as appearing in all OPD registers but fact remains that no prosecution witness has bothered to throw any light as to what is the import of these strange numbers mentioned in last column. Such numbers exist in the register maintained by Dr. Ashok Garg. Even he has not bothered to explain the same.
15.31 Dr. Garg had joined ADC, Aryapura on 07.07.2007 and I have seen OPD register Ex.PW13/D (D27) of his period. On 09.07.2007, he referred patients for various tests like blood sugar, TLC, DLC, HB and in the corresponding register i. e. Ex.PW9/D41 (D25), names of such patients, totaling 33, have been mentioned. On 10.07.2007 also Dr. Garg referred several patients for tests and as per the noting appearing in the register, 28 patients were referred for blood sugar test and 4 patients for TLC, DLC and 8 for HB besides 4 for PT. Fact, however, remains that there is no lab register meant for 10.07.2007. Dr. Garg has not offered any explanation on this score. He should have rather himself come up with some sort of explanation. Subsequent entries of the tenure of Dr. Garg clearly show that he was referring large number of patients for blood sugar test but there is no corresponding lab test register. Lab test register maintained by Dr. Garg is only up to the date of 09.07.2007.
15.32 Ld. Prosecutors have claimed that since Dr. Garg had come to know about the illegal employment of Lisa Paul, he immediately removed her and, therefore, thereafter, there was no further test warranting updation of any lab test register. It was also asserted that Dr. Garg himself conducted blood test with handy machine. However, I have already noticed above that on 10.07.2007 also, he had recommended several tests but there is no lab test register for that day. Dr. Garg should have made some entries somewhere at least to show the consumption and usage of gluco-strips but CBI has failed to show any such entry made by him.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 53 of 71SEIZURE OF VARIOUS REGISTERS 16.0 Credibility of such registers is also under clout.
16.1 I would like to mention that registers D-10, D-11 & D-12 bear signatures of two vigilance officers of MCD. Sh. S.P. Ahluwalia and Sh. Manohar Lal signed these registers on 16.05.2008.
16.2 Such signatures and such dates at least make one thing very clear to the Court as to when exactly CBI had conducted surprise raid in the year 2008.
16.3 Admittedly, as per the case of prosecution, a joint surprise check was conducted at ADC Aryapura. Such team consisted of CBI officials and also of vigilance officials of MCD. At that time Dr. Ashok Garg was present in ADC Aryapura and he also participated in the search proceedings and lab was searched and all OPD registers, lab test registers, stock registers etc. were scrutinized and seized. FIR was, however, registered on 30.06.2008. Surprisingly, Insp. Manoj Kumar does not know as to when such surprise check was conducted. He does not know the gap between the lodging of FIR and such surprise check. Nobody was able to throw any light with respect to the date when such surprise check was conducted but signatures appearing on said two lab test registers do indicate that such raid was conducted on 16.05.2008 and, therefore, only signatures of vigilance officers of MCD are found to be there on lab test registers. These two vigilance officials have not been examined by CBI.
16.4 There is one more baffling and surprising aspect. Why no seizure memo was prepared that day? CBI should have prepared a Memo describing what it seized that day.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 54 of 7116.5 PW22 Insp. Manoj Kumar is very specific and he says that the team had seized OPD registers, lab test registers, stock registers etc. Moreover, if at all such registers had been seized, then would someone explain as to why the other lab test registers, which should have also been there in ADC Aryapura at the time of surprise check, were not seized? Why remaining six lab test registers were not seized that day and whey these registers were later on handed over to CBI by Dr. Ashok Garg.
16.6 CBI should not have any chance to anyone to infer that something was fabricated or cooked up later on. CBI itself is to be blamed. It did not find any requirement of preparing any seizure memo and failed to offer any explanation as to why other lab test registers were not seized same day. This naturally brings element of doubt and uncertainty with respect to the authenticity of entries contained in such registers and a possible interpolation. Dr. Garg did claim that some Memo was prepared the day when raid was conducted. He initially claimed that EX PW18/ B (D-13) was such Memo but later, he retracted and claimed that such Memo was different. Fact remains that such Memo has not seen the light of the day and CBI has held back the same for mysterious reasons.
STORAGE CONDITION AT ADC ARYAPURA 17.0 According to Sh. Jagbir Singh, learned SPP for CBI, there was no ideal condition for storing medical kits at ADC Aryapura which resulted in huge loss of public money. My attention has been drawn towards the testimony of PW22 Insp. Manoj Kumar who had deposed that when lab was searched, it was found in bad condition and there was no proper infrastructure like refrigeration system etc. CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 55 of 71 17.1 I do feel that prosecution has again stretched itself too far and too away.
17.2 Firstly, it has not bothered to properly explain as to which particular medicine and kits were required to be stored in ideal storage condition of 2º Celsius to 8º Celsius. I have seen the testimony of PW20 Dr. Kusum Gupta who was posted as Specialist Pathology in Hindu Rao Hospital. She was sent queries by CBI relating to test kit storage condition and she sent reply to CBI. D-61 contains such queries and corresponding reply.
17.3 It was asked as to what would be the impact if the medical kits were not stored under prescribed temperature condition of 2º Celsius to 8º Celsius. She replied that test kit would lose its potency if any condition and direction given by concerned company regarding the storage of kits were not followed. She also claimed that if the ideal temperature condition was not maintained then report would not be reliable.
17.4 She was then asked whether instruments available in ADC Aryapura were sufficient for conducting test using medical kits supplied as per annexure A and she claimed that every test was different and required different infrastructure.
17.5 According to her, only few kits i.e. Widal, Antigen, T-3, T-4, TSH, Micro Elisa HIV kits could not be used unless kept under ideal storage condition. Her reply is contained in Ex. PW20/B and Ex. PW20/C and she was sent a list of 50 kits and out of those, she claimed that ideal storage conditions were required only for the aforesaid few test kits. Worth of such kits was less than Rs. 3 lacs.
17.6 CBI has not bothered to explain as to what space was actually required for storing those kits relating to Widal, Antigen, T-3, T-4, TSH, Micro CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 56 of 71 Elisa HIV. She reiterated the contents of her reply in the witness box and also claimed that tests in question could have been conducted at ADC Aryapura provided auto-analyzer was bio-chemistry analyzer. Again CBI has not bothered to explain and verify whether the auto-analyzer provided at ADC Aryapura was bio-chemistry analyzer or not.
17.7 It also becomes very much apparent that there was fridge and air- conditioner in ADC Aryapura. PW15 Sh. Madan Singh Negi has admitted in his testimony that air-conditioner and refrigerator and three desert coolers were provided to ADC Aryapura. Relevant entries are found mentioned in stock register D-52. Stock register D-52 has been proved as Ex. PW19/A and it shows that air-conditioner was provided to ADC Aryapura (vide entry appearing at page no. 40) on 30.03.2005 and refrigerator also on 30.03.2005. Entry at page no. 81 reflects supply of three desert coolers to ADC Aryapura on 14.11.2005. Thus, it cannot be said that there was no refrigeration facility or ideal storage condition at ADC Aryapura. PW18 Dr. Ashok Garg has also admitted that there were refrigerator and air-conditioner in ADC Aryapura. PW19 Sh. Shiva Nand Harit is blissfully unaware about ideal storage condition of such kits though he was posted in the office OIPS as Pharmacist and was responsible for the purchases in question. PW21 Insp. Anand Sarup also admits that there was AC and fridge in ADC Aryapura.
17.8 Interestingly, supply of medical kits was not made directly to ADC Aryapura. On the basis of indent notes, process is initiated by OIPS and after having concurrence from Accounts Department, purchases are made. Suppliers then supply all these articles to the office of OIPS and the office of OIPS takes such medical kits into its stock and thereafter it is the duty of OIPS to supply the same to the concerned centers. Thus, supplier does not supply these kits directly to the concerned centers and supply is routed through the office of OIPS. Interestingly, in OIPS, there was only one fridge. If one fridge in OIPS can be CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 57 of 71 said to be sufficient for storing the medical kits meant for all the centers then by any stretch of imagination, one such fridge at ADC Aryapura would also be sufficient.
ROLE OF DR. KHATRI AND DR. KANNOJI AND CONSPIRACY 18.0 PW 17 Dr. Vidhya Sagar has given the procedure of procuring medicines/ kit. Relevant part of his deposition dated 22.08.2012 reads as under:-
"...It is correct that the post Deputy Director Hospital Administration, Ayurved was earlier known as Deputy Health Officer (Indian System of Medicine). The job of DHO (ISM) is presently being done by Deputy Director Hospital Administration (Ayurved). There is post of OIPS i.e. Officer In-charge Pharmacy & Store. Entire purchase was through OIPS, earlier the purchase of medicine, equipments, medical kits, items etc. used by dispensaries, all ADCs including ADC Arya Pura used to be done through OIPS. I do not know as to whether I had informed officials of CBI that between 2003 to 2007 Sh. Hari Nath Gupta was the concerned OIPS. He was not OIPS during my tenure. Dr. Anil Kumar Sharma was the OIPS during my tenure. The office of OIPS had been situated at Nigam Bodh Gate, Yamuna Bazar, Hanuman Mandir, Delhi. The job of the OIPS was to purchase medicines for dispensaries and ADCs. Earlier there used to be a manufacturing pharmacy, which used to manufacture ayurvedic medicines. However, the same was closed. It was the job of OIPS to cause purchase of all articles of furnitures, air conditioners, fridge, Ice box, required medical equipments like auto clave, centrifugals and other equipments required at ADCs or dispensaries. OIPS used to purchase the required articles, medicines etc. as per the demand/requisitions sent to him by ADCs and dispensaries.
The job of DHO (ISM) or DDHA (A) is to send the list of articles to be procured, prepared by OIPS to Accounts Branch of Corporation. I would not be able to specify role of the Accounts Branch of Corporation, during the relevant period, therefore, I cannot confirm or deny as to whether it was their job to checkup the budget allocation, codal formalities and other financial disciplinary rules, concurrence of the relevant departments for the said CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 58 of 71 proposed purchase, since during my tenure, Accounts Branch of Corporation used to ascertain budget allocation and concurrence. After the approval of the Accounts Branch, the job of DHO (ISM) or myself is to send the respective proposal of purchase back to OIPS, as per ordinary schedule of business. This is the only role in the entire purchase process, assigned to DHO (ISM) or DDHA(A). All purchase orders which stood scrutinized by Accounts Section of MCD, used to be implemented accordingly by OIPS. Commonly this OIPS is also addressed as Pharmacy Incharge...."
18.1 Dr. Meenu Mahinder had sent request for arranging 43 items for ADC Arya Pura. Such request is contained in Ex PW9/D-18 (part of D-14). It is undated but fact remains that a copy of the same was also sent to DHO (ISM) and it was received by DHO (ISM) on 03.10.2006. However, as per the procedure, request for aforesaid 43 items was addressed to OIPS as OIPS was the lone procurement agency.
18.2 It will be also important to mention here that as far as Dr. M.L. Khatri is concerned, he joined as DHO (ISM) on 26.06.2006 only and he received 21 separate proposals from OIPS. It is important to mention here that initially, demand made by Dr. Meenu Mahinder was for 43 items. If PW19 Shiva Nand Harit, concerned official of OIPS is to be believed, he had discussion with Dr. J.R. Sharma and as per the discussion, certain items were deleted and, therefore, only 21 proposals were prepared by him meaning thereby that 22 items (out of
43) were dropped. I would, however, hasten to add that such stance of Mr. Harit does not seem believable. He also admitted that there was no document to show that he had called and consulted accused Dr. Sharma and then deleted certain items.
18.3 Dr. M.L. Khatri, as per evidence brought on record by CBI, enters into the scene only on 03.10.2006 and not before that. Naturally, by that time, Dr. J.R. Sharma was no longer in ADC Arya Pura as Dr. Meenu Mahinder was CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 59 of 71 Medical Officer Incharge, ADC Arya Pura. There is nothing on record to show that Dr. Khatri had ever any sort of interaction, direct or indirect, with Dr. J.R. Sharma on 03.10.2006 or any time prior to that or subsequent to that. As per procedure, separate 21 proposals were prepared by OIPS and all such proposals were sent to DHO (ISM) with the request that these items may be purchased at the approved rates. It is admitted case of CBI as well that all such 21 proposals were considered by Sh. Khatri for the first time on 20.10.2006 and he raised queries. These queries were related to the fact whether demand was actual or not, secondly whether there was budgetary provision available or not and thirdly regarding the status of stock position available with OIPS. Sh. H.K. Sharma has stated that as and when any stock is received by OIPS, such supply is duly inventoried in the stock register with OIPS and thereafter, supply is made to the concerned dispensaries and centres and, therefore, Dr. Khatri had sought for stock position from OIPS. My attention has also been drawn to the testimony of PW19 Shiva Nand Harit which indicates that such register used to be maintained by OIPS. Pursuant to such query, it seems that concerned medical officer was also asked to clarify the position and Dr. Meenu Mahinder intimated that all the items had been duly consumed. Consumption position was shown nil and by such narration she wanted to indicate that the stock which had been received from OIPS had been duly consumed and, therefore, there was no stock of the medicines of which indents had been sent. Even PW19 Harit clarified the same pursuant to court question. After receiving said reply from Dr. Meenu, Sh. Hari Nath Gupta wrote back to DHO (ISM) on 27.10.2006 certifying therein that budgetary provision was there and as per the report of Dr. Meenu Mahinder, Medical Officer/Incharge, ADC Arya Pura, all the items has been entered into stock and consumption was nil. Thereafter, Dr. Khatri as DHO (ISM) referred the matter to Accounts Officer (Health & Planning) who gave approval on 07.11.2006. Matter was then sent back to DHO (ISM) and Dr. Khatri signed on 07.11.2006. Thus, role of Dr. Khatri is found between said dates i.e. 03.10.2006 and 07.11.2006. He did not deal with any proposal other than aforesaid 21 CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 60 of 71 proposals. Apparently, he had dealt all said 21 proposals together.
18.4 There has to be some linking material to connect DHO (ISM) with the criminal conspiracy. Undoubtedly, the proposals came to him for administrative approval but fact also remains that before according approval, he raised queries in order to satisfy himself and these queries were marked to OIPS who, in turn, sought reply from concerned Medical Officer Incharge and thereafter consolidated reply was sent to DHO (ISM). It was thereafter only that Dr. Khatri had referred the matter to Accounts Officer for grant of financial concurrence. It is very much evident that at no point of time Dr. Khatri was in touch with Dr. J.R. Sharma directly or indirectly. He was rather dealing with OIPS directly. As already noticed above, he received one copy of the request made by Dr. Meenu but fact remains that formal proposals came to him from OIPS only. OIPS was the procurement agency and proposals were, therefore, prepared by said agency.
18.5 Undoubtedly, DHO (ISM) Dr. Khatri was required to apply his mind to such proposals and to give necessary approval, if required. Whether articles indented are actually required or not is to be seen and assessed by DHO (ISM) and it seems that for said purpose only, Dr. Khatri had raised said query. Learned SPP has stated that worth of the articles purchased under said 21 proposals was approximately Rs. 24 lacs. However, Court is not supposed to be swayed away by the value thereof. It is required to be seen whether there was any deviation from the rules or regulations and if yes whether those were laced with any malafide intention or due to some criminal conspiracy. CBI has not brought to fore any material suggesting any deviation from settled norm or any fact or circumstance suggesting conspiracy. Prosecution has not been able to bring on record any material which may show that Dr. Khatri had any occasion to have talked to Dr. J.R. Sharma or for that matter Dr. Meenu Mahinder at any point of time in connection with said 21 proposals. Mere grant of approval, per se, would CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 61 of 71 not convert Dr. Khatri as an accused. Dr. Kannoji had also, in a similar manner, accorded administrative approval. CBI has failed to elaborate as to what else was required to be done by them. As already discussed, ADC, Aryapura was established with a purpose. There was budget allocation for creating a full- fledged laboratory. There was nothing bad in purchasing chemicals and kits for such laboratory. Moreover, there is no material to indicate that DHO(ISM) was ever informed by anyone that there was no lab technician at ADC, Aryapura. There is no material to indicate that DHO(ISM) was ever informed by anyone that ideal storage conditions did not exist at ADC, Aryapura. I can infer criminality only if it is borne from the record that DHO(ISM) despite knowing the aforesaid two facts granted approval. Here, unfortunately, CBI has not gathered any evidence of any nature which could have hinted that office of DHO(ISM) knew about those crucial things. No oral evidence to that effect has either come.
18.6 I have seen the testimony of PW18 Dr. Ashok Kumar Garg as well. He was the one who succeeded Dr. Meenu Mahinder. He deposed about the procedure for procuring medicines by any dispensary/diabetic centre. When he was grilled by accused Dr. M.L. Khatri, surprisingly, in his cross-examination, he claimed that any such dispensary or centre used to purchase medicine etc. directly through DHO (ISM) and OIPS never used to be in picture. He also claimed that post of OIPS was there but he used to make purchases in the aforesaid manner i.e. not through OIPS. Further when he was asked a specific question to the effect that all the purchases of ADC Arya Pura prior to him were only through the office of OIPS, he ducked the answer by pleading ignorance. Be that as it may, fact remains that various proposals placed on record by the prosecution do indicate that all such proposals used to be routed through OIPS only and, therefore, to that extent version given by Dr. Garg does not seem to be a correct one.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 62 of 7118.7 As per Dr. Vidhya Sagar as well, Auto-analyzer was a better choice than handy machine being more authentic. He is blissfully ignorant whether ADC, Aryapura was already having the entire infrastructure related to laboratory. Naturally, Ayurveda was diversifying into allopathic techniques by creating full- fledged laboratory. Creation of such laboratory was with permission of Corporation and as per Resolution. There was budget allocation and, therefore, DHO(ISM) was well within his rights to accord approval to purchase chemicals. If there was any irregularity, accounts officer would not have given any financial concurrence. No official from accounts has, however, been cited as witness.
18.8 It would also be appropriate to mention here that Dr. Sharma had raised demands worth Rs. 8.20 lacs only. Major chunk of said consisted of Dextrostrips required for testing sugar. Worth of these was Rs. 6.41 lacs. These do not require much space and can be stored in room temperature though fact remains that PW 19 Harit does not know about storage condition for this article. Admittedly, Dr. Kusum Gupta's deposition indicates that this article did not require storage in cool condition. Last supply was on 30.03.2005. As far as indents during the tenure of Dr. Meenu are concerned, these were of around Rs. 49 lacs. These were raised between 11.11.2005 and 29.09.2006. I am not ready to believe that subsequent purchases were at the behest of Dr. Sharma. Thus, even otherwise substantial purchases are of tenure with which Dr. Sharma had no concern.
18.9 I am also not able to fathom reason as to why supplementary statements of some material witness were recorded after a gap of one year. Facts allegedly disclosed by them in such supplementary statements were supposed to be in their knowledge when they were examined earlier. Rather they knew that they were being examined in connection with investigation and they should have come up with such vital facts indicting accused(s) at the earliest. They had not been called for any clarification or nothing new had surfaced which CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 63 of 71 warranted their re-examination. I don't want to comment but there can be a remote possibility of manufacturing these statements so as to suit the story of prosecution. And, if this so, it is indeed damaging to prosecution.
18.10 Moreover, CBI has not supplied any reason as to why Dr. Meenu, as alleged, blindly carried out the directions of Dr. Sharma. She has not whispered that she had a fear of losing her new job. Perhaps, that might have been a remote reason on this score. She is totally mute on that point. I rather feel that if prosecution was not possessing sufficient material, it should have adopted another strategy. Making false entries in office records by Dr. Meenu, Lisa Paul and Madan Negi was penal act. First two persons were also named as accused in FIR. In such a situation, all by itself and without any rhyme or reason, they should not have been transposed as witnesses. CBI should have rather chosen to make them approvers as they were also equally guilty if prosecution story is to be believed but nothing of that sort was done. No promptitude was shown in registering FIR either.
18.10 Though as per age old cliché, conspiracy is hatched in secrecy yet fact remains that prosecution is still required to establish the same through admissible evidence- direct or circumstantial or inferential. Here, CBI has not been able to show and substantiate the same in desired manner.
SANCTION 19.0 There is one very interesting aspect relating to sanction for prosecution.
19.1 Dr. V. P. Kannoji had already retired by the time charge sheet was filed and, therefore, sanction qua him was not sought.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 64 of 7119.2 However, as far as Dr. J.R. Sharma and Dr. M. L. Khatri are concerned, sanction for prosecution was sought and it was given by PW1 Sh. K.S. Mehra. Such sanction orders have been proved as Ex.PW1/A and Ex.PW1/B. Sh. K.S. Mehra was posted as Commissioner, MCD at the relevant time and he accorded sanction by virtue of his holding such capacity.
19.3 Sh. Harsh K Sharma, learned defence counsel has placed his strong reliance upon the judgment of G.S. Matharaoo Vs. CBI 2012 (II) Delhi
188. 19.4 It has been argued that both the doctors were Group A employees and only Municipal Corporation was competent authority to remove them and Commissioner was incompetent to grant sanction for their prosecution.
19.5 I have carefully gone through the aforesaid judgment and indeed in such judgment, it has been held by Hon'ble High Court of Delhi that in case of Group A employees, the authority competent to remove was the Corporation and not the Commissioner. No judgment to the contrary has been cited before me by CBI and it has been merely informed that SLP is pending disposal before the Apex Court and said judgment of High Court is still under judicial scrutiny and cannot be taken as precedent. Fact, however, remains that said judgment has not so far been set aside. I would, however, like to comment in view of my foregoing discussion, the issue of sanction pales into insignificance.
Final Conclusion 20.0 My foregoing discussion would show that there are various shortcomings and infirmities in the instant case which create a suspicion in the veracity of case as put up by CBI.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 65 of 7120.1 CBI has not been able to offer any explanation on certain vital issues. Some of these are as under:-
(i) Why no Seizure Memo was prepared on
16.05.2008?
(ii) Why all the registers were not seized that very day?
This was imperative as CBI is found heavily relying on entries maintained in such register.
(iii) Why Vigilance officials of MCD, who were part of raid, have been held back? They have not been even cited as witness.
(iv) Why CBI took inordinate time in recording FIR?
(v) There is no convincing material to show that
accused Dr. Sharma had a private clinic and that there was no lab in such clinic.
(vi) IO, despite searching such clinic under warrants, does not make a mention of such fact in his deposition.
(vii) Record seized from such private clinic has been held back. Perhaps, it was not lending any assurance to the case of CBI. Such record included OPD registers, Test registers and salary payment details of staff etc. and these could have been handy to gauge whether accused Dr. Sharma was referring his private patients from there to ADC, Aryapura and whether Lisa Paul was working there or not.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 66 of 71(viii) ADC, Aryapura was established as full-fledged laboratory in terms of resolution of MCD and there is no illegality in raising demands for chemicals and equipments for the same.
(ix) Why no doctor from other dispensary has been examined in order to show that they had never referred any patient to ADC, Aryapura?
(x) There is no documentary proof to show that after 05.10.2005, Dr. Sharma was having any concern with ADC, Aryapura and, therefore, he cannot be connected with any entrustment and alleged misappropriation thereafter.
(xi) There is no explanation as to why Dr. Meenu
allegedly kept on accepting the orders of Dr. Sharma
without any murmur.
(xii) Dr. Meenu has nowhere deposed that kits as such
were also used to be taken out from ADC, Aryapura.
(xiii) Self-styled exoneration of Dr. Meenu and Lisa Paul by CBI has caused immense damage to the case of CBI.
(xvi) No evidence has been collected to properly
demonstrate as to what were the actual duties of
DHO(ISM) and OIPS.
(xv) Hostile evidence of Lisa Paul has spoiled the entire
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 67 of 71
case of CBI. Moreover, Ms. Lisa Paul claimed that she left Delhi in April 2007 for her native place and got married there in May 2007. Thus, according to her, she never revisited ADC Arya Pura once she left in April 2007 and if this is so then there was no occasion for Dr. Garg to have removed her in July 2007. This also creates a doubt in the deposition made by Dr. Garg.
(xvi) There are different versions appearing behind mentioning of word 'new' in Lab Test Register.
(xvii) It does not stand established that such word referred to private patients of Dr. Sharma.
(xviii) Chhotu @ Rajkumar has not been examined by the prosecution and he was the one who used to bring samples of private patients from the private clinic of Dr. Sharma to ADC Arya Pura. His non-examination has also proved to be fatal.
(xix) There is not enough clarity to indicate that storage conditions at ADC, Aryapura were inadequate and improper.
(xx) Health Department of MCD is to be blamed as despite purchasing machines, it did not think it prudent to ensure that such laboratory was manned by a technician. (xxi) There is no material indicating any conspiracy amongst accused. Testimony of Dr. Vidhya Sagar Sharma has also failed to give any boost to the case of CBI.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 68 of 71(xxii) There is no evidence to the effect that Dr. Kannoji had ever met Ms. Lisa Paul either at ADC Arya Pura or in the office of MCD situated at Town Hall. So much so, Ms. Lisa Paul has also failed to identify him during her deposition.
(xxiii) There is no evidence substantiating the allegations that accused Dr. J.R. Sharma had abused his official position and rather it is borne out from the record i.e. D-6 (Stock Register) and also from the deposition of prosecution witnesses that when Dr. J.R. Sharma left ADC Arya Pura, there was stock of 150x25 Dexo Strips in ADC Arya Pura as on 05.09.2005 and during his tenure, no chemical meant for testing through centrifugal machine or through auto-analyzer were received. If at all accused Dr. J.R. Sharma wanted to misappropriate, he could have done the same immediately. He had sent demand of several chemicals on 30.03.2005 but these chemicals were never received till 05.10.2005. It is really inexplicable as to how he was able to anticipate that Dr. Meenu Mahinder would join on 04.10.2005 with whose help, he would eventually misappropriate the kits. If at all, his intentions were bad, he would have rather procured the kits well before joining of Dr. Meenu Mahinder and would have usurped such medical kits and chemicals.
(xxiv) Dr. Hari Nath Gupta, OIPS died during the pendency of the matter before he could depose which has also caused damage to the case of CBI.
CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 69 of 7120.2 I would also like to comment and lament that investigation was not upto the mark and if the investigation had been carried out meticulously and if the entire material would have been placed before the Court, Court would have been in a better position to ascertain the exact role of the accused persons and to decipher and pinpoint the element of conspiracy as well.
20.3 I do not want to make any further comment whether the lapses and omissions were deliberate or otherwise but fact remains that half-cooked investigation has left many a gaps and holes in the case of prosecution. Undoubtedly, Dr. Sharma and his successor should not have permitted any outsider to work as Lab Technician but his such act alone would not tantamount to hold that it was Dr. J.R. Sharma who had misappropriated the kits. I have already noticed above that it has not been possible for the Court to hold that Dr. Sharma continued to hold full control over ADC Arya Pura even after 05.10.2005. Most of the stock, as already discussed above, was received by Dr. Meenu Mahinder and since entrustment was not to Dr. J.R. Sharma, it is very difficult for the Court to hold that misappropriation was by him.
20.4 Undoubtedly, there was lack of supervision over ADC Arya Pura. Maintenance of various registers at ADC Arya Pura was also in deplorable state. Court is conscious and cognizant of the fact that a doctor cannot be held liable for poor maintenance of various such registers. Fact, however, remains that since the Commissioner, MCD had accorded sanction of prosecution, it has to be necessarily inferred that he was in the thick of things and must have taken some correctional measures as well. However, to be on the safer side, let a copy of this judgment be sent to the Commissioner, MCD so that a Charter of Duties, if not already in place, is drawn clearly specifying the duties and responsibilities of all concerned simply in order to ensure that there is no chance of any waste or pilferage or misappropriation. During course of arguments, it also surfaced that CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 70 of 71 no departmental action was envisaged against any public servant involved in the present matter. This is despite the fact that when ADC Arya Pura was searched before registration of FIR, raid was conducted by joint team of CBI and Vigilance Officers of MCD. Thus, Vigilance Department was also very much aware about the alleged irregularities.
20.5 Naturally, level of appreciation of evidence and standard of proof in a criminal trial is much more rigorous as compared to departmental action. Without laying stress on this issue any further, I would wind up by saying that the material on record is found to be insufficient to bring home the guilt of any of the accused beyond shadow of doubt.
20.6 I am, therefore, inclined to grant benefit of doubt to all the three accused persons and acquit them of all the charges levelled against them.
20.7 Their bail bonds are cancelled. Sureties stand discharged.
20.8 Accused are, however, directed to submit Bonds u/s 437A Cr.P.C.
20.9 Ahlmad is directed to ensure digitization of the entire record without any delay.
20.10 File be consigned to record Room.
Announced in the open Court On this 05th day of July 2013. (MANOJ JAIN) Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi CC No. 48/2011 CBI Vs Dr. J.R.Sharma etc Page 71 of 71