Madras High Court
State Rep. By vs Shri.D.Suresh (A1) on 13 February, 2019
Author: M.Dhandapani
Bench: M.Dhandapani
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.02.2019
CORAM:
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
CRIMINAL APPEAL(MD)No.181 of 2014
State Rep. by
Inspector of Police,
CBI/ACB, Chennai. .. Appellant/
Complainant
Vs.
1.Shri.D.Suresh (A1)
S/o.Late.Shri.S.Deivanathan,
Sub-Staff,
Oriental Insurance Company Ltd.,
Madurai (T.N.).
2.Shri.A.Remigius (A2),
S/o.Late.Shri.M.Anthony,
Proprietor, M/s.Lucky Medicals,
K.Pudur, Madurai (T.N.) .. Respondents/
Accused Nos.1 & 2
Criminal appeal is filed under Section 378 of the Code of
Criminal Procedure, against the Judgment dated 29.03.2012, passed
in C.C.No.7 of 2004, by the learned Special Judge for CBI Cases, II
Additional District Court, Madurai.
For Appellant : Mr.R.Sudevkumar
Special Public Prosecutor
for CBI Cases
For R2 : Mr.S.Kanagarajan
http://www.judis.nic.in
2
JUDGMENT
This Criminal Appeal has been filed against the judgment dated 29.03.2012, wherein the learned Special Judge for CBI Cases, II Additional District Court, Madurai, had acquitted the respondents/accused. The respondents/A1 & A2 had been charged for the offences punishable under Sections 120-B r/w. 420, 467, 468, r/w. 471 IPC and Section 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988 [hereinafter referred to as ''the P.C. Act''].
2.The sum and substance of the prosecution case is as follows:-
2.1. A1 – D.Suresh was working as Sub-Staff in Oriental Insurance Company, Divisional Office-II, Madurai. A.Remigius - A2 is the Proprietor of M/s.Lucky Medicals, DRO Colony, K.Pudur, Madurai.
During the year 2000-2001, A1 colluded with A2, cheated the Insurance Company, by making bogus medi-claims through Exs.P.1, P.5, P.8, P.13, P.23 and P.28, for his treatment and also for the treatment of his mother, using falsely created cash bills of M/s.Lucky Medicals issued by A2 viz., Exs.P.2, P.6, P.9, P.18, P.19, P.24, P.31 and P.32, without actual purchase of the medicines, which were not concerned with the treatment also. In pursuance of the conspiracy, http://www.judis.nic.in 3 A1 got sanction of medi-claims from the Insurance Company to the tune of Rs.18,000/- [approximately] and caused wrongful loss to the Insurance Company and thereby, cheated the Insurance Company.
2.2. Though initially no one has made a complaint, based on the sources of information, the CBI conducted investigation on their own by examining independent witnesses, including P.W.2- Doctor and filed a charge sheet on 31.01.2004 before the learned Special Judge for CBI Cases, II Additional District Court, Madurai and the same has been taken on file in C.C.No.7 of 2004. A1 had claimed medi-claims of Rs.2,91,000/- during May 2000 to February 2002, i.e., within 21 months and got sanction of Rs.2,76,000/-. Without any prescription, A1 with the connivance of A2, on his own created false Exs.P.2, P.6, P.9, P.18, P.19, P.24, P.31 and P.32 medical bills and got sanction of Rs.18,000/- [approximately].
2.3. To substantiate the charges against the accused, the prosecution examined 14 witnesses as P.Ws.1 to 14 and marked 109 documents as Exs.P.1 to P.109. To disprove the prosecution version, no witnesses were examined and no documents were marked on the side of the accused.
http://www.judis.nic.in 4 2.4. The Trial Court framed the following point for consideration:-
''Whether the charges framed against the accused are proved by the prosecution?'' 2.5. Upon consideration of oral and documentary evidence, the learned Special Judge for CBI Cases, II Additional District Court, Madurai, found that the prosecution not proved their case beyond reasonable doubt and acquitted the accused.
3.Against the said judgment dated 29.03.2012, the appellant/State has preferred this Criminal Appeal.
4.Assailing the findings of the Trial Court, the learned Special Public Prosecutor appearing for CBI Cases submitted that P.W. 1-Mathivanan, who was working as Divisional Manager in Oriental Insurance Company Ltd., Divisional Office – II, Madurai, in his evidence, has clearly deposed the procedure for sanctioning the medi-claim. Further, P.W.2-Dr.Nagendran, who is running a Hospital in the name and style of Jebam Hospitals, Madurai, in his evidence, deposed that the medicines mentioned in the bogus cash bills submitted by the first accused were not prescribed for Thyroid http://www.judis.nic.in 5 related disease, for which, his mother-D.Arockiam had underwent treatment and the said medicines rleate to male impotency, which cannot be administered to female. Further, in his evidence, he has stated 'Allegra' is anti alergy tablet and 'Saluzyme' is a tonic for gastric troubles.
5.The learned Special Public Prosecutor appearing for CBI cases further submitted that in order to prove the case of prosecution, the prosecution has also examined P.W.3-Dr.Sundarrajan, who is working in Cuyrac Hospital, Perungudi. P.W.3 - Doctor deposed that the medicines viz., 'Zonoucin' and 'Tarivid' mentioned in Ex.P.31 Medical Bill, are antibiotics and similarly, Item Nos.1 to 3 mentioned in Ex.P. 32 Medical Bill are also antibiotics. All these antibiotics should not be given at the same time to the patients and if the same are given, it will be dangerous to them. He further deposed that Item No.4 in Ex.P.32 Medical Bill is Ayurvedic medicine and Item No.4 in Ex.P.31 is Vitamin Tablet. He also deposed that the medicine mentioned in Ex.P.31 Medical Bill is relating to male patients. The Trial Court without considering the evidence available on record, acquitted the accused and the same is perverse and liable to be interfered with.
http://www.judis.nic.in 6
6.Per contra, the learned counsel appearing for the second respondent submitted that the first accused presented the medical bills for the treatment of his mother and for himself. The said medi- claim presented by duly mentioning the Doctor name, who has given treatment to his mother and to himself. However, the prosecution failed to examine the said Doctor and examined the Doctors, who are working in different hospitals and it is only an opinion, which will not bind on the accused. Further, the initial burden lies upon the prosecution to establish that the medicines were not purchased as per the prescriptions of the Doctor. Clause 2 of the Medi-Claim Conditions says that 'Cash Memos from the Hospital/Chemist(s), supported by the proper prescription'. In the medi-claim form, the first respondent/A1 has clearly mentioned his Doctor name. Further, the prosecution has not examined the manufacturer mentioned in the medical bills and examined only different manufacturers and they did not know about the medicines purchased by the first respondent/A1 from the second respondent/A2.
7.The learned counsel appearing for the respondents also submitted that the order of acquittal cannot be interfered with in a mechanical manner unless that order is perverse and not within the http://www.judis.nic.in 7 legal parameters, this Court can interfere with the said order and prayed for dismissal of the Criminal Appeal.
8.In support of his submissions, the learned counsel appearing for the second respondent relied on the following judgments:
(i) State of Goa Vs. Sanjay Thakran and another reported in 2007 (3) SCC 755, wherein at Pargraph Nos.14 to 16, it has been held as follows:-
''14.By a series of decisions, this Court has laid down the parameters of appreciation of evidence on record and jurisdiction and limitations of the appellate court, and while dealing with appeal against an order of acquittal this Court observed in Tota Singh v. State of Punjab [1987 (2) SCC 529] as under : (SCC p. 532, para 6) ''6. … The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the http://www.judis.nic.in 8 conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous.''
15.Further, this Court has observed in Ramesh Babulal Doshi v. State of Gujarat [1996 (9) SCC 525] (SCC p. 229, para 7) :
''7. … This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the http://www.judis.nic.in 9 conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then — and then only — reappraise the evidence to arrive at its own conclusions.” and in State of Rajasthan v. Raja Ram [2003 (8) SCC 181 (SCC pp. 186-87, para 7):
''7.There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based.
Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the http://www.judis.nic.in 10 case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. (See Bhagwan Singh v. State of M.P. [2002 (4) SCC 85]). The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [1973 (2) SCC 793], Ramesh Babulal Doshi v. State of Gujarat [1996 (9) SCC 225] and Jaswant http://www.judis.nic.in 11 Singh v. State of Haryana [2000 (4) SCC 484].”
16.From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterised as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below. However, the appellate court has a power to review the evidence if it is of the view that the view arrived at by the court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to reappreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the accused is connected with commission of the crime he is charged with.''
(ii) Muralidhar Alias Gidda and another Vs. State of Karnataka reported in 2014 (5) SCC 730, wherein at Paragraph Nos.10 to 13, it has been held as follows:-
http://www.judis.nic.in 12 ''10.Lord Russell in Sheo Swarup vs. King Emperor [1934 (40) LW 436 : AIR 1934 PC 227], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said: (IA p. 404) ''… the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.'' The opinion of Lord Russell has been followed over the years.
11.As early as in 1952, this Court in Surajpal Singh Vs. State [AIR 1952 SC 52] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed: (AIR p. 54, para 7) ''7. … the High Court has full power to review the evidence upon which the order of http://www.judis.nic.in 13 acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.''
12.The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu Vs. State [AIR 1954 SC 1], Madan Mohan Singh Vs. State of U.P. [AIR 1954 SC 637], Atley Vs. State of U.P. [AIR 1955 SC 807], Aher Raja Khima Vs. State of Saurashtra [AIR 1956 SC 217], Balbir Singh Vs. State of Punjab [AIR 1957 SC 216], M.G. Agarwal Vs. State of Maharashtra [AIR 1963 SC 200], Noor Khan Vs. State of Rajasthan [AIR 1964 SC 286], Khedu Mohton Vs. State of Bihar [1970 (2) SCC 450], Shivaji Sahabrao Bobade Vs. State of Maharashtra [1973 (2) SCC 793], Lekha Yadav Vs. State of Bihar [1973 (2) SCC 424], Khem Karan Vs. State of U.P. [1974 (4) SCC 603], Bishan Singh Vs. State of Punjab [1974 (3) SCC 288], Umedbhai Jadavbhai Vs. State of Gujarat [1978 (1) SCC 228], K.Gopal Reddy Vs. State of A.P. [1979 (1) SCC 355], Tota Singh Vs. State of http://www.judis.nic.in 14 Punjab [1987 (2) SCC 529], Ram Kumar Vs. State of Haryana [1995 SCC (Cri) 355], Madan Lal Vs. State of J & K [1997 (7) SCC 677], Sambasivan Vs. State of Kerala [1998 (5) SCC 412], Bhagwan Singh Vs. State of M.P. [2002 (4) SCC 85], Harijana Thirupala Vs. Public Prosecutor [2002 (6) SCC 470], C. Antony Vs. K.G.Raghavan Nair [2003 (1) SCC 1], State of Karnataka Vs. K.Gopalakrishna [2005 (9) SCC 291], State of Goa Vs. Sanjay Thakran [2007 (3) SCC 755] and Chandrappa Vs. State of Karnataka [2007 (4) SCC 415]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;
(iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the http://www.judis.nic.in 15 appellate court is generally loath in disturbing the finding of fact recorded by the trial court.
It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and
(iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.
13.In Ghurey Lal Vs. State of U.P. [2008 (10) SCC 450], the Court has culled out the principles relating to the appeals from a judgment of acquittal http://www.judis.nic.in 16 which are in line with what we have observed above.''
9.I have heard the learned counsel appearing for the parties and perused the materials available on record.
10.Upon careful re-assessment of the evidence and the judgment of the Trial Court and other materials on record and submissions made by the learned counsel appearing for the parties, the following points arise for consideration in this Criminal Appeal:
1. Whether the judgment of the Trial Court is perverse and needs interference of this Court?
2. Whether the medicines mentioned in Exs.P.2, P.6, P.9, P.18, P.19, P.24, P.31 and P.32 medical bills are genuine and pertaining to the disease of A1 and his mother?
3. Whether the prosecution has discharged his initial burden to prove that the medicines mentioned in Exs.P.2, P.6, P.9, P.18, P.19, P.24, P.31 and P.32 medical bills are forged one?
http://www.judis.nic.in 17
11.P.W.5, who was the Assistant working in Oriental Insurance Company Ltd. at the relevant point of time, in his evidence, has clearly deposed that the Doctor's prescriptions and the medical bills were compared together and those prescriptions and medical bills were annexed with Exs.P.1, P.5, P.8, P.13, P.23 and P.28 Medi-claim Application Forms. After scrutinizing the entire documents, the bills were sanctioned from different levels upto the level of Divisional Manager. Thereafter, the payment will be made to the claimant. P.W. 1-C.Mathivanan, who was working as Divisional Manager in Oriental Insurance Company Ltd. at Madurai, in his evidence, has deposed that the claims submitted by the employees are scrutinised by the Assistant or by the Senior Assistant and it is further scrunitised and checked by the Assistant Divisional Manager and then, it would be sent to the Divisional Manager, for sanction. If the papers are in order, the claims will be passed duly relying on the recommendation of the subordinates. After the claim is passed, the documents are sent back to the Assistant, who prepares the cheque and it is further checked by the Assistant Divisional Manager and voucher is passed either by A.D.M. or by D.M. and it is sent to the Cashier for issuing the cheque and thereafter, the authorised authorities will sign in the cheque. P.W.6, who was a Divisional Manager, would state that the http://www.judis.nic.in 18 prescriptions were verified and thereafter, he accorded permission to disburse the amount. A perusal of the evidence of P.Ws.1, 5 and 6 would show that their evidence corroborated by each other. The Insurance Company had not made any complaint with regard to the bogus claim and the CBI took cognizance of the case based on the irregularities noticed during its investigation.
12.On perusal of the evidence of P.W.2-Dr.Nagendran, who is running a Hospital in the name and style of Jebam Hospitals, Madurai, it is seen that the medicines mentioned in the alleged bogus cash bills submitted by the first accused were not prescribed for Thyroid related disease, for which, his mother-D.Arockiam had underwent treatment and the said medicines relate to male impotency, which cannot be administered to female. Further, in his evidence, he has stated 'Allegra' is anti alergy tablet and 'Saluzyme' is a tonic for gastric troubles. However, this Court perused the medi- claim applications submitted by the first respondent/A1. In the said applications, the first respondent clearly mentioned the Doctor's name as 'Kannappan', who has given treatment to his mother and the Apollo Hospital, Madurai, in which, he has taken treatment. Without examining the said Doctor, who prescribed the said http://www.judis.nic.in 19 medicines to him and also to her mother, the prosecution has examined only P.Ws.2 and 3 – Doctors and it is only an opinion, which will not bind on the accused. The Doctors' name, the Manufactuers' name and the batch number have also been mentioned in the medical bills. Without examining the manufacturers mentioned in the medical bills, the prosecution has examined the other manufacturers in order to prove their case.
13.Though A2 has given extra judicial confession before P.W.10 – Vigilence Officer on 22.11.2001, the prosecution did not prove that the extra judicial confession was obtained voluntarily and the learned Special Public Prosecutor for CBI Cases fairly conceded that there is no record available and A2 has given extra judicial confession voluntarily before the Vigilance Officer and the extra judicial confession is general in nature.
14.In the present case, the officials of the Oriental Insurance Company did not make any allegation with regard to the genuineness of the medical bills and in fact, they categorically held that the medical bills produced by the first respondent/A1 is in order and it is http://www.judis.nic.in 20 genuine one. Further, P.W.2-Dr.Nagendran, in his evidence, has deposed that the medicines mentioned in Exs.P.18, P.19 and P.24 medical bills relate to the disease of heart attack and chest pain and the same can be used as per Doctor's advice. The first respondent/A1 was admitted in the Apollo Hospital, Madurai, for several complaints, including chest pain.
15.In view of the above, it is relevant to refer the decision of the Hon'ble Apex Court in State of Goa Vs. Sanjay Thakran and Another reported in 2007 (3) SCC 755. On perusal of the said decision of the Hon'ble Apex Court, it is apparent that while dealing with the appeal against an order of acquittal, the Court of Appeal need not interfere with the order of acquittal unless the approach of the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously.
16.In view of the above, I do not find any error to interfere with the judgment of the Trial Court and therefore, the Criminal http://www.judis.nic.in 21 Appeal is liable to be dismissed. Accordingly, this Criminal Appeal is dismissed.
13.02.2019 Index :Yes/No Internet:Yes smn2 To
1.The Special Judge for CBI Cases, II Additional District Court, Madurai.
2.The Special Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
3.The Section Officer, Criminal Records, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 22 M.DHANDAPANI, J.
smn2 Judgment made in Crl.A.(MD)No.181 of 2014 13.02.2019 http://www.judis.nic.in