Yakub Khan Ahmed Khan v. State of Madhya Pradesh — 1972 DIGILAW 166 (MP)

JUDGMENT : M.L. MALIK, J. 1. The judgment delivered in this appeal shall he read as judgment in Criminal Appeal No. 1069 of 1972, Mohammad Arif vs. State of M.P. and Criminal Appeal No. 1070 of 1972, Balkrishna Choubey vs. State of M.P. The three appellants and one Shyam Behari Garg were jointly tried by the Special Judge, Jabalpur in Criminal Case No. 36 of 1968. They have all been convicted and sentenced to rigorous imprisonment of varying terms. Shyam however, has not come up in appeal. He has undergone the sentence. 2. The prosecution case maybe briefly stated. On 24-8-1967, K.G. Kelkar (PW-37), one of the partners of the “Nutan Medical Hall” Napier Town reported at the Omti Police Station that a blank cash-memo book bearing serial numbers 4801 to 5200 was missing from the shop and it was suspected that the same was stolen by Balkrishna Choubey who left their service on 27-7-1967, and who was probably misusing the cash-memos for illicit gains. That, on the day the report was made, the cash-memo book in use at the shop, was bearing serial numbers 4401 to 4800. It was disclosed in the report that on that very day in the afternoon, one S.N. Sarkar, an employee of the Telegraph workshop, had co me to the shop for getting a cash-memo corrected. The cash-memo was not of the current series and not issued by any servant or proprietor of the shop. That gave suspicion for a search and it was soon detected that a blank-cash-memo book was missing and the cash-memo brought by S.N. Sarkar was the one from the missing series. S.N. Sarksr wanted the initials of the patient changed from N.N. Sarkar to S.N. Sarkar. He told then that the medicines were purchased by his brother Ramprasad Sarkar. On being asked to call his brother so that necessary details might be obtained, S.N. Sarkar left the shop and never returned. The cash-memo that was sought to be corrected is Ex.P-80. K.G. Kelkar dispatched copies of this report to various authorities including the Collector, the Civil Surgeon and the Superintendent Posts and Telegraphs. The officers of the Telecom workship took interest in the report and directed scrutiny of the cash memos which the employees had filed in support of their medical-reimbursement claims. They could trace out 93 cash memos of the alleged stolen series. The officers of the Telecom workship took interest in the report and directed scrutiny of the cash memos which the employees had filed in support of their medical-reimbursement claims. They could trace out 93 cash memos of the alleged stolen series. The cash memos were all written by Shyam Behari Garg They were either counter-signed by Dr. Yakub Khao or by Dr. B.L. Singh. By that time the reimbursement claims of the employees had not been passed. 3. Shyam Behari Garg was a salesman at the Narbadai Medical Corner from 1-3-1967 to 14-8-1967. He was probably engaged at that shop on the recommendations of Ballerishna Choubey. Balkrishna Choubey was in service of Nutan Medical Hall from January 1966 to 27-7-1967. He left the Nutan Medical Hall to start his own business. He opened a shop in the name of Choubey Medical Hall on 26-8-1967. Shyam Behari joined him as a partner. 4. All the 93 employees who had preferred medical reimbursement claims on the basis of the cash memos from the alleged stolen series have not been prosecuted. The prosecution was launched against a few employees. Mohammad Arif is one of them. 5. The prosecution story is that the three appellants and Shyam Behari had entered into a criminal conspiracy to cheat the Telegraph Department of the Government of India. Dr. Khan gave a false prescription Ex.P-47 for treatment of Mohammad Arif’s wife, who, in fact, was not ill. Oh the basis of that prescription, Shyam Behari wrote as cash memo Ex.P-8. Balkrishna Choubey had the stolen cash-memo book of the Nutan Medical Hall and he spared the cash memo for Shyam Behari to write. For this, Balkrishna used to charge his commission of 15 to 20 per cent. No medicines were needed for the patient nor were they supplied. Arif then presented his claim for medical reimbursement by application Ex.P-6 supported by the doctor’s prescription, his essentiality certificate Ex.P-7 and the cash memo Ex.P-8 duly counter-signed by the doctor. Dr. Yakub Khan was the authorised medical attendant for the employees of the Telegraph workshop. The allegation is that Arif’s wife was not treated by him; she was never examined by him for any illness and she was never injected with Hepatex Forte. The consultation fee of Rs. 5 and the injection fee of Rs. Dr. Yakub Khan was the authorised medical attendant for the employees of the Telegraph workshop. The allegation is that Arif’s wife was not treated by him; she was never examined by him for any illness and she was never injected with Hepatex Forte. The consultation fee of Rs. 5 and the injection fee of Rs. 15 shown in the reimbursement claim was an illegal gain made by him by abusing his position. That was criminal misconduct punishable under section 5 of the Prevention of Corruption Act. The doctor was further charged for conspiracy, and for abetting the offence of attempt to cheat, and also for abetting the offence of forgery committed by Shyam Behari. Mohammad Arif was charged with the substantive offence of attempt to cheat by submitting a false claim of Rs. 68.15 Nps. using a forged cash-memo, and attempt to obtain for himself pecuniary advantage by corrupt and illegal means though being a public servant. Balkrishna Choubey likewise was charged with conspiracy, theft of the blank cash-memo book, from the Nutan Medical Hall, abetting the offence of attempt of cheating and the offence of forgery for the purposes of cheating committed by Shyam Behari. Shyam Behari was charged with conspiracy, forging the cash-memo Ex.P-8 and abetting the offence of attempt to cheat committed by Mohd. Arif. 6. The Special Judge, Jabalpur, has found the charges proved and the appellants are before this Court in appeal. The learned Judge did not accept the defence of the doctor that Arif’s wife was in fact ill and he had given her injections and prescribed medicines as per Ex.P-47 and that he could not possibly verify if the cash memo mentioned correct Batch numbers and expiry dates. Arif’s defence was that he had advanced a genuine claim for medical reimbursement; medicines were in fact purchased for his wife’s treatment. Balkrishna Choubey pleaded that he was falsely implicated by Satyadeo Tilwani (PW-29); he had not committed theft of the cash-memo book from Nutan Medical Hall nor did he spare it for Shyam Behari to forge a false cash-memo. Shyam Behari, however, admitted to have issued the cash memo in question and many more, implicating at the same time Balkrishna Choubey, who, he said, was getting commission from the employees and at whose instructions or dictations he was writing them. Shyam Behari, however, admitted to have issued the cash memo in question and many more, implicating at the same time Balkrishna Choubey, who, he said, was getting commission from the employees and at whose instructions or dictations he was writing them. He admitted that the blank cash memos of the Nutan Medical Hall used to be supplied by Balkrishna Choubey who had stolen them from the shop. He said that the medicines were never supplied to the customers under these cash memos and fictitious Batch numbers and Expiry dates used to be written. He did not know that the cash memos he wrote were going to be issued for the purposes of cheating the Government. 7. Before I discuss the evidence, I must reiterate the position of law that the statement made by an accused when examined under section 342 of the Code of Criminal Procedure cannot be taken into consideration under section 30 of the Evidence Act against his co-accused. In Mst. Sumitra vs. Emperor, 1940 NLJ 343 : AIR 1940 Nag. 287 their Lordships stated the law thus: “There is obviously a difference between proof of a confession and proof of a fact. The definition of the word ‘proved’ given in section 3, Evidence Act, relates to proof of a fact in issue and not a statement recorded by the Court in the presence of the persons under trial. Section 30 speaks of the proof of a confession and not proof of a fact in issue. The word ‘confession’ used there clearly means such a confession as is required to be proved at the trial as a part of the prosecution evidence. It cannot therefore signify any matter which comes on the record at the end of the prosecution evidence.” *** *** *** “There is distinction between a confession made by an accused person before the trial and one made by him when examined under section 342. In the former case he admits his guilt without knowing or testing the whole of the evidence against him and against the other suspects. He spontaneously chooses to make a clean breast of the whole thing. The confession being an admission of his own guilt is admissible as evidence against him under section 21, Evidence Act. In the former case he admits his guilt without knowing or testing the whole of the evidence against him and against the other suspects. He spontaneously chooses to make a clean breast of the whole thing. The confession being an admission of his own guilt is admissible as evidence against him under section 21, Evidence Act. That being so, a duty is cast on the Magistrate who records a confession under section 164, Criminal Procedure Code to warn the person making the confession that he is not bound to make a confession but that if he does so it might be used as evidence against him. The confession becomes thus admissible against him as evidence unlike the statement that he makes under section 342, Criminal Procedure Code. That statement comes after the prosecution has put forward the entire evidence and the accused is asked to state only for the purpose of enabling him to explain any circumstances appearing in the evidence against him. The answers given by the accused can only be “taken into consideration” against him in the same enquiry or trial although they can be “put in evidence” for or against him in any other enquiry or trial for any other offence.” I accept this as the correct enunciation of law. It finds support in a Supreme Court decisions reported in Narayan Swami vs. State of Maharashtra, AIR 1968 SC 609 . Their Lordships observe: “The legal position is quite clear, viz. that the evidence, given by Dilawar, in the dacoity case, cannot be used as evidence against the appellant, who had no opportunity of cross-examining Dilawar, in the said case and the statements of Dilawar, as co-accused made under section 342, Criminal Procedure Code in the present trial, cannot be used against the appellant.” 8. The statements of Shyam Behari made from the dock have to be excluded from consideration completely in so far as the other accused are concerned. His statements should not be permitted to prejudice the mind even unconsciously. The question whether his statements were self-exclupatory or inculpatory, does not arise for consideration at all, apart from the fact that on proper appraisal of his statements one could easily see that the statements were self-exculpatory and could not be used even to lend assurance to the other evidence led by the prosecution in proof of the crime. The question whether his statements were self-exclupatory or inculpatory, does not arise for consideration at all, apart from the fact that on proper appraisal of his statements one could easily see that the statements were self-exculpatory and could not be used even to lend assurance to the other evidence led by the prosecution in proof of the crime. Shyam Behari does not inculpate himself in the commission of theft of the cash-memo book from the Nutan Medical Hall and in so far as forgery of the cash-memos are concerned, he says, that he did not know nor had he reasons to believe that they were going to be used for defrauding anyone. The intent to cause damage or injury to the public or to a person, or intent to commit fraud, or that the fraud may be committed, is an essential ingredient of the offence of forgery and the statement which Shyam Behari gave could not be read as confession of a guilt because he said, he had no dishonest intention of defrauding anyone. His statements, thus, were self exculpatory and could not be taken into consideration against the other accused even under section 30 of the Evidence Act. 9. It is difficult to get over the prejudice unconsciously occupying the mind on the confession of a co-accused, which ropes in sometimes an innocent person, and one is apt to work on that prejudice in finding corroboration in the other evidence that is tendered by the prosecution. It is to guard against this tendency, I would like to re-emphasize that the statements given by Shyam Behari when examined under section 342 of the Code of Criminal Procedure, should be completely ignored. They should not be looked into at all, much less for purposes of corroboration as is sometimes inadvertently done. 10. It would be pertinent to note that Shyam Behari did not confess the guilt during the investigation. He made his admissions almost after the trial concluded. His defence, as suggested by his counsel: in the cross-examination of the two Kelkars (PW-37 aid PW-42), proprietors of the Nutan Medical Hall, was that they know him since the year 1962-63; he was friendly to one Tiwari who was their tenant and was occasionally visiting him, and that he sometimes worked at the Nutan Medical Hall as a salesman and issued cash memos. He was not their permanent employee, but between 2 to 4 P.M. when other servants withdrew for lunch and rest, he attended the shops as a part-time salesman. If was suggested in Para 9 of the Kelkar’s (PW-37) deposition that the accountant who wrote the cash-book. Radhakishan and Kanhaiyalal were other three part-time workers, whose names did not and mention in the Hajri register. From his cross-examination of the two Keikars, the inferences that were to logically follow are these: (i) That the cash memos were issued from the Nutan Medical Hall, and if the drugs supplied thereunder were spurious and did not agree with the batch numbers or the expiry dates of the genuine products, it was the responsibility of the Nutan Medical Hall to explain. (ii) In case the drugs were not supplied at all to the customers, the proprietors of the Nutan Medical Hall were co-conspirators. (iii) The appellants want the Court to believe that Shyam Behari had access to the cash-memos and he could steal them and use them for his own benefit either by supplying spurious or expired drugs to the illiterate and ignorant customers or by issuing a cash memo with imaginary batch numbers and Expiry dates to one who wanted such a cash-memo for cheating the Government. The admissions made by Shyam Behari after the conclusion of the trial speak volumes. What influences worked on him, it is difficult to tell. But it would as well be said that he realised that he had no escape and he must admit the guilt and appeal for a lenient sentence. What needs to be borne in mind is the irreconcilable stand which he had taken earlier, and before his admissions at the conclusion of the trial influence the mind in so far as they implicated the appellants, it should at once be recalled that the person we are dealing with is a self-confessed liar. He had been taking irreconcilable positions. 11. In the matter of theft of the blank cash - memo book of the Nutan Medical Hall, the statement of Shyam Behari under section 342 of the Code of Criminal Procedure that it was Balkrishna Choubey who had given him the blank cash-memo to write, has to be completely excluded. The Statement cannot be used even for the purposes of corroboration. The Statement cannot be used even for the purposes of corroboration. If his statement is excluded, we have only to fall back on Satyadeo Tilwani’s evidence before whom Shyam Behari and Balkrishna Choubey are said to have made extra-judicial confessions. I would presently deal with his testimony. 12. Satyadeo Tilwani is PW-29. The learned Special Judge puts him in the category of an accomplice and rightly so. He was an accessory after the fact to a felony and knowing that the felony had been committed, comforted Shyam Behari and assisted him to escape to Indore to avoid immediate arrest. It may be that he was a partner in the crime and was sharing the illicit gains with him, and lest he should himself come in trouble, he wanted him to escape. His testimony would disclose that as soon as the Kelkars warned the general public of the likely misuse of the cash memos of the stolen series, by issuing a notice in the newspaper ‘Yugdharm’ Shyam Behari was disturbed and so were Tilwani and Choubey. They insisted on his going away. Tilwani says that Balkrishna Choubey was not willing to keep Shyam Benari at his shop and insisted on his leaving Jabalpur. The reason could be that a servant or a partner of Shyam Bellari’s antecedents, was bound to bring disgrace and disrepute to the newly opened medicine shop of Balkrishna Choubey. He was, therefore upset and wanted him to go. A particeps criminis would not behave the way Choubey did. He would not pick up quarrels with his guilty associate lest the latter exposed him to criminal prosecution. He would rather keep him cajoled. Balkrishna’s conduct in asking him to quit the shop, does not speak for a guilty mind. Instead, we find Tilwani patting and consoling Shyam Behari and helping him with money when Shyam Behari was at Indore. His letters Ex.P-54 and Ex.P-55 show that it was Tilwani who had sent him a money order of Rs. 25. Tiiwani’s friend also had sent him Rs. 40 once. Tilwani wanted his letters to be destroyed as soon as they were read. destroyed Shyam Behari’s letters so that they may not involve him. Tilwani gave letters of introduction to his friends at Indore to help Shyam Behari in getting a job. He drafted applications for him. 25. Tiiwani’s friend also had sent him Rs. 40 once. Tilwani wanted his letters to be destroyed as soon as they were read. destroyed Shyam Behari’s letters so that they may not involve him. Tilwani gave letters of introduction to his friends at Indore to help Shyam Behari in getting a job. He drafted applications for him. Tilwani was a Government servant It was a misconduct if he engaged himself in any trade or business. He, as the account books of the Choubey Medical Hall indicate, was a partner in the medicine shop. He had invested Rs. 1,500. Balkrishna Choubey says that Tilwani was taking away the entire sale proceeds of the shop and that gave rise to bickerings. Tilwani’s attitude towards him could not, therefore, be friendly. 13. We have to read Tilwani’s statements in this background. Tilwani says that he often found Choubey and Shyam Behari quarrelling and sometime in September, 1967, Shyam Behari told him that Balkrishna Choubey had stolen a blank cash memo book of the Nutan Medical Hall and had issued false cash memos to Telegraph employees. Tilwani says that he asked Choubey if it was true. Choubey after a long talk and questioning admitted that he had prepared many false cash memos and issued even to the Telegraph Employees as he was getting 15 to 20 percent of the value. A confession of this type has hardly any significance. It has to be ignored, for its vagueness. A thief may admit that he had committed a number of thefts but that would not be an admission of a particular theft for which he stands charged unless he admits that theft specifically. A vague and uncertain admission of having prepared a huge lot of false cash memos, does not mean an admission that one in favour of Mohd. Arif was a false cash memo prepared by Choubey. Besides, the confession was that he himself prepared false cash memos and issued them to the employees. The cash memo in question as we see, is not prepared by Balkrishna Choubey. It is prepared by Shyam Behari. It would be pertinent to read the written statement Shyam Behari gave in answer to the questions under section 342 of the Code of Criminal Procedure. The cash memo in question as we see, is not prepared by Balkrishna Choubey. It is prepared by Shyam Behari. It would be pertinent to read the written statement Shyam Behari gave in answer to the questions under section 342 of the Code of Criminal Procedure. Shyam Behari wants the Court to believe that Balkrishna had stolen the blank cash memo book of his Nutan Medical Hall on the 25th July, 1967 (two days before he left the services of the Kelkars). The stolen cash memos remained with him unused till Choubey opened his own medicine shop. The shop, as the evidence goes, was opened on 26-8-1967. Shyam Behari Writes that the new shop needed money after it was opened. Choubey thought of this device of issuing false cash-memos. He asked Shyam Behari to write the cash-memos, which he did at his instance; Ramkripal and Mohammad Arif used to come to Choubey’s shop and collect these false cash-memos. And we assume that this was the story, Shyam Behari gave to Tilwani and he got it confirmed from Balkrishna Choubey. The story is rendered hopelessly incredible for the following reasons: (a) That the cash-memo in question was issued on 27-7-1967 and not after 26-8-1967 as Shyam Behari wants us to believe. It was presented for reimbursement on 7-8-1967 much before the Choubey Medical Hall was opened. (b) It was foolish to suggest that Ramkripal and Arif used to collect the cash memos from the Choubey Medical Hall. The cash-memo in question was collected on 27-7-1967 (at any rate before 7-8-1967) when the Choubay Medical Hall did not exist. (c) Shyam Behari was not in service of Balkrishna Choubey prior to 26-8-1967 and he could not possibly be induced to forge cash-memos for him so long he was not in Choubey’s service. 14. The value of the evidence as to the confession, like any other evidence, depended upon the veracity of the witness to whom it had been made. Satyadeo Tilwani was an accomplice and his testimony could not be accepted as reliable unless corroborated in material particulars. In the present case, the prosecution sought corroboration in the admissions made by Shyam Behari under section 342 of the Code of Criminal Procedure. The law is settled that the statement of one accomplice is not strangthened by the concurrent statements of any number of accomplices. The corroboration must proceed from an independent source. In the present case, the prosecution sought corroboration in the admissions made by Shyam Behari under section 342 of the Code of Criminal Procedure. The law is settled that the statement of one accomplice is not strangthened by the concurrent statements of any number of accomplices. The corroboration must proceed from an independent source. In R. vs. Jattir Ali, it was held that a confession admissible under section 30 of the Evidence Act cannot be used as evidence corroborating in any way the evidence of approvers against persons who did not confess. Glover J. remarked: “tainted evidence is not better by being doubled in quantity.” The present case is still worse. Shyam Behari’s admissions do not fall under section 30 of the Evidence Act and cannot be used even for purposes of corroboration. Satyadeo Tilwani’s statement has not been corroborated by any unimpeachable and independent evidence and is wholly unreliable. And since I disbelieve him as to confessions made by Choubey implicating himself in the crime of theft and the forgery, the principal link in the chain of circumstantial evidence is broken in so far as that connected the two doctors. Choubay could not then tell Tilwani that he or Arif or Ramkripal got the forged cash-memos counter-signed by Dr. Yakub Khan or Dr. B.L. Singh. The sequence in which Tilwani deposed in Court is worth noting. He was examined on the 17th September, 1970. He was in the witness-box for a considerable number of hours but said not a word about the two doctors. When examined on the 18th, he was reminded of something he had forgotten to tell and he recollected that he had omitted to name the two doctors as co-conspirators. It is obvious that he came tutored the next day. 15. The suggestion is that Balkrishna Choubey was an employee in the Nutan Medical Hall; the cash-memo books were accessible to him and he could remove one undetected. The Kelkars, therefore, suspected him for the theft. Shyam Behari, according to them, never visited their shop for any purpose. I am not prepared to believe the two Kelkars. Balkrishna Choubey and Shyam Behari were good friends. The proprietors of the Narbada Medical Corner had engaged Shyam Behari on the recommendations of Balkrishna Choubey. Balkrishna had been going to their shop to assist Shyam Behari. Shyam Behari, according to them, never visited their shop for any purpose. I am not prepared to believe the two Kelkars. Balkrishna Choubey and Shyam Behari were good friends. The proprietors of the Narbada Medical Corner had engaged Shyam Behari on the recommendations of Balkrishna Choubey. Balkrishna had been going to their shop to assist Shyam Behari. Balkrishna Chobey even worked as salesman and Wrote-cash-memos in the Narbada Medical Corner on some occasions. It is very probable that Shyam Behari likewise visited the Nutan Medical Hall to meet his friend Balkrishna Choubey and assisted him. Shyam Behari did suggest in the cross-examinations of the two Kelkars that he was occasionally attending their shop and worked as salesman. He could easily steal a blank-cash-memo book which was not kept under lock and key. We should go by the normal presumptions. Shyam Behari was the writer of all the suspected cash-memos. He was the thief unless he gave satisfactory account for his possession. He says, Choubey gave him the cash-memos but Choubey denies it. There is no evidence that the cash memos were given to him by Choubey except Shyam Behari’s own statement. Out of the 400 cash-memos, the investigation agency could trace out 93, all written by Shyam Behari. The unused cash-memos could not be traced. No cash-memo was written by Balkrishna Choubey. That settled the matter. Shyam Behari alone could be presumed a thief under section 114, illustration (a) of the Evidence Act. His explanation for his possession could not reasonably be accepted. In the result, therefore, there is no evidence that Balkrishna Choubey committed theft of the Blank cash-memo book of the Nutan Medical Hall and induced Shyam Behari to forge them. 16. The most important circumstance the prosecution relies upon is that the medicines bearing batch numbers and Expiry dates as mentioned in the cash-memo. Ex.P-8 were never manufactured by the pharmaceutical concerns which should be supposed to produce them; the medicines, therefore, did not exist in the market for sale; they were not in fact sold and cash-memo issued was bogus. The man who took the cash-memo knew that it was a forged document and had deliberately used it to cheat the Government. The doctor could not have injected the medicine which did not exist and was, therefore, a co-conspirator in as much as he counter-signed the cash-memo which he knew was bogus. The man who took the cash-memo knew that it was a forged document and had deliberately used it to cheat the Government. The doctor could not have injected the medicine which did not exist and was, therefore, a co-conspirator in as much as he counter-signed the cash-memo which he knew was bogus. The counter-suggestion of the defence is that the mistake in the batch numbers could be due to misprint, or faint ink on the carton which made the print illegible, or inadvertent omission to write a digit or two by a salesman, who was not qualified and did not realise the importance of the transaction, or spurious drugs having been sold under the batch numbers mentioned, or drugs which had expired, were sold with incorrect expiry dates mentioned in the cash-memo. 17. To begin with the first drug ‘Hipatex Forte’ prescribed by Dr. Khan, the cash-memo gives the batch No. K-8006-date of Expiry October 1968. PW-49 Shrinivas Shenoy of the manufacturing concern says that the drug under the batch number beginning with the first digit 8 would indicate the year of manufacture to be 1968 and the expiry date, therefore, would be two years after, that is October, 1970. To put it differently, if the first digit were ‘6’ and not ‘8’, the batch number would be correctly mentioned and it would be genuine product with expiry date of October, 1968. The first digit ‘6’ would indicate the year of production to be 1966. The learned counsel for the defence produced before me a few cartons with such faint batch numbers that it was difficult to make them out and argued that the possibility of the salesman mistaking ‘6’ for ‘8’ could not be completely ruled out. Then it could be a printing mistake. By way of an illustration, Article R a sample with batch No. G-8006 was shown to the witness and he said that the number did not tally with the production record. The correct number should have been G-8006-A. The letter ‘A’ was missing from the genuine carton. Mistakes in printing were thus equally possible. The second drug prescribed by Dr. Khan was Subamycin 250 Mg. The cash-memo shows the batch number as 348 - Expiring November, 1969. S.N. Banerji (PW-32) is from the manufacturing Company. He says that Subarnycin expiring in November, 1969 should bear the batch number 538. Mistakes in printing were thus equally possible. The second drug prescribed by Dr. Khan was Subamycin 250 Mg. The cash-memo shows the batch number as 348 - Expiring November, 1969. S.N. Banerji (PW-32) is from the manufacturing Company. He says that Subarnycin expiring in November, 1969 should bear the batch number 538. Further in Para 6, he admits that the Company had produced Subamycin capsules with batch number S.C. 348 in 1962 with Expiry date in September, 1966. The learned counsel for the defence says that the possibility of an expired drug having been sold under the cash-memo is not ruled out. The writer of the cash-memo omitted to write the two letters S.C. but wrote only the three digits 348 and deliberately gave the wrong Expiry date so that he could pass to the customer an expired drug. Attention was drawn to the purchase voucher Ex.D-21, wherein the batch No. shown is 535/69, the letters S.C. are omitted which Shri Banerji says, could not be their product. He further says that the Company did not produce Subamycin 2-12-50mg. which is one of the items in Ex.D-21. Such being the case, either the whole-seller committed error in giving the batch numbers or had sold spurious drugs. It is likely that Subamycin with batch No. 348 was likewise sold to the Nutan Medical Hall. 18. The third drug prescribed was Novalgatal and the fourth was Sovental. The prosecution led no evidence to show that these drugs did not bear correct batch number. 19. The fifth drug prescribed was Rubraplex. The cash-memo shows its batch number to be 6L-8325-Expiry April 68. Dr. Mehta (PW-54) of the manufacturing concern says that their batch number was of five digits whereas the one mentioned in the cash-memo was of four digits. The defence argues that the writer inadvertently omitted to write the fifth digit. This possibility was not ruled out. In any case, Dr. Mehta himself admitted that spurious drugs were being sold in the market and very likely the drug supplied to the purchaser under the cash-memo was spurious drug. 20. The sixth drug in the cash-memo is Lederplex. Its batch number is 4684-127-Expiry June 68. Shri I.M. Gandhi (PW-33) is from the manufacturing concern. According to him, Lederplex liquid was produced under Batch No. 4355-127 in May 1962 with Expiry date in December, 1953. 20. The sixth drug in the cash-memo is Lederplex. Its batch number is 4684-127-Expiry June 68. Shri I.M. Gandhi (PW-33) is from the manufacturing concern. According to him, Lederplex liquid was produced under Batch No. 4355-127 in May 1962 with Expiry date in December, 1953. The Code number 4355 remained unchanged and the later products were with batch numbers 100 to 138. The mistake in the cash-memo was of the Code number. The defence contends that there was every possibility of an expired drug bearing batch No. 127 having been sold. It was also likely that spurious drug was sold. The company had no check on the expiry drugs remaining in the market for sale. The learned counsel for Mohammad Arif, drew attention of the Court to various cash-memos issued by the Nutan Medical Hall, in particular to Ex.D-8, D-14, D-17 and D-18. In Ex.D-8, the batch No. is 273 and for the same drug (Lederplex liquid) with the same expiry date, the batch number in Ex.D-14 and D-17 is 272. Similar mistakes could be noticed in cash memos Nos. 4285, 4286 and 4290 wherein Sharkoferrol with Expiry date November 68 have different batch numbers such as 587 and 847. The cash-memos Nos. 4405 and 4441, relating to Ferilex have again different batch numbers though the expiry date is July 68. Similar mistakes were pointed out in respect of Provitex and Mysolone. 21. The inference is irrestibie that the affairs at the Nutan Medical Hall were not very straight. If the cash-memos showed incorrect batch-numbers, the shop was either selling spurious drugs or the salesman were irresponsible people. The investigation agency should have taken care to search the shop to find if there was stock of spurious or expired drugs. The Whole stock should have been checked to verify if the shop possessed drugs sold under the cash-memo. The stock registers and purchase vouchers should have been inspected and the stock, compared. This was not done and the appellants have a serious grievance about it. 22. It is admitted that Balkrishna Choubey was the only qualified salesman in the Nutan Medical Hall. The two Kelkars were not qualified persons and yet were selling the drugs. The cash-memos were being issued by them. Karotiya (PW-28) is a Drug Inspector. This was not done and the appellants have a serious grievance about it. 22. It is admitted that Balkrishna Choubey was the only qualified salesman in the Nutan Medical Hall. The two Kelkars were not qualified persons and yet were selling the drugs. The cash-memos were being issued by them. Karotiya (PW-28) is a Drug Inspector. He says that he did not find the affairs of the shop in order and he had complained against it to the Collector. The Nutan Medical Hall was fined for evasion of the Octroi also. The two proprietors are not willing to tell us how the drugs were brought in without payment of the Octroi and how many times that was done. It is to be seen that the medicines were also being locally purchased. All medicines were not directly supplied by the manufacturing concerns. The purchase vouchers, therefore, of the local whole-selieis needed careful scrutiny. Was it possible that the Whole-sellers supplied to the Nutan Medical Hall doubtful drugs? 23. Something may be said about the cash book and the missing cash memos of the Nutan Medical Hall. Risbud (PW-8) says that he was a part-time cash-book writer of the Nutan Medical Hall. On 27-7-1967, the cash-memos of the series 4125 to 4204 were issued. The disputed cash-memo Ex.P-8 could possibly be issued being much ahead, and the sale relating to it had not been accounted for in the cash-book of that date. In the cross-examination, the witness had to admit that the cash-book was prepared for the purposes of this case within 10 or 15 days at the instructions of the Kelkars. If Kelkars could stoop down to this level, they could as well remove all cash memos written by Shyam Behari and say that he never attended their shop for any purpose. The Kelkars say that they obtained knowledge of the theft of their cash-memos’ book on 24-8-1967 when S.N. Sarkar came to get one corrected. They then found one of books missing. To our surprise cash memos were missing from the current series as well. Risbud says that on 11-7-1967, he noticed cash-memos from 3841 to 3844 missing; so also cash memos from 3925 to 3928 were found missing on 13-7-1967. On 24-7-1967, cash memos from 4093 to 4096 were found missing. They then found one of books missing. To our surprise cash memos were missing from the current series as well. Risbud says that on 11-7-1967, he noticed cash-memos from 3841 to 3844 missing; so also cash memos from 3925 to 3928 were found missing on 13-7-1967. On 24-7-1967, cash memos from 4093 to 4096 were found missing. Risbud informed the two Kelkars of the missing cash memos but they made no report and did not care to see if the cash memos were misused by anyone. It is suggested by the learned counsel for the appellants that the cash-memos were deliberately removed by the Kelkars, those bearing handwriting of Shyam Behari, which necessitated preparation of a new account-book, and they could find in Risbud a capable hand who could do it. Risbud was paid six months’ salary for it, that is what I suspect from the book entries. The learned counsel also drew my attention to Ex.P.172 which is a cash memo bearing number 4025 (not of the missing book) which is in the hand-writing of Shyam Behari. This has been proved by Rao (PW-41). How would the Kelkars account for this cash-memo having been written by Shyam Behari? It can reasonably be suspected that Shyam Behari did occasionally visit Nutan Medical Hall and issued cash memos to the customers. 24. The prosecution has filed a number a cash-memos from the alleged missing series. All of them have been written by Shyam Behari. It was expected that the persons who preferred medical reimbursement claims on the basis of these cash memos would come forward to say that they had obtained the cash memo without purchasing medicines, or if they had made purchases, then from what shop. They have all been Kept back. The learned counsel for the appellants say that very likely the persons, if interrogated, would say that the cash-memos were issued to them from the Nutan Medical Hall where Shyam Behari was working as the salesman. The prosecution did not take the risk of examining them lest the two Kelkars got involved for either dealing in spurious drugs or for being co-conspirators in cheating the Government by issuing false and bogus cash-memos. The prosecution even did not take the risk of examining S.N. Sarkar or his brother Ramprasad to narrate the circumstances under which he had obtained Ex.P-80. The prosecution even did not take the risk of examining S.N. Sarkar or his brother Ramprasad to narrate the circumstances under which he had obtained Ex.P-80. Very likely he would have said that the cash memo was issued to him from the Nutan Medical Hall itself. It is possible, the learned counsel for the appellants argue, that the Kelkars suspecting that Balkrishna Choubey after having left their service might expose them, thought of this subterfuge of making a report to the police implicating Balkrishna in the theft of a blank cash memo book; and the book should be the same which was in fact being used for issuing either bogus cash memos or for sales of spurious drugs. More than ninety persons were available to the prosecution for interrogation, who could throw light on the cash-memos alleged to be bogus. Why none of them has come forward to support the prosecution case? 25. I could scarcely appreciate the relevancy and object the 93 cash memos of the alleged stolen series were going to serve. It is not proved that they are forged. The prosecution wants the Court to believe that they are all bogus, but the Court cannot lightly assume that. Besides, how could evidence of one conspiracy be used as evidence in the other. The gist of the offence of conspiracy lay in the forming of the scheme or an agreement between the parties to do the illegal act. The principal man in the conspiracy with which we are dealing, is the employee who should agree to cheat the Government and share the profits. That means, with every individual employee there should be a separate conspiracy. Arif would not -normally be concerned with the conspiracy in which Ramkripal was involved. The prosecution, 1 am sure, does not want the Court to assume that the conspiracy was of such a large scale and so notorious as to involve 95 employees, everybody agreeing to cheat the Government. If that is the case, all the 95 employees should have been prosecuted. Their cash-memos otherwise could not be used as evidence of conspiracy against Arif, at any rate. 26. It is difficult to believe that Dr. Khan was a party to the conspiracy and knew wherefrom his Telegraph employee-patients purchased the medicines and who issued them cash memos. If that is the case, all the 95 employees should have been prosecuted. Their cash-memos otherwise could not be used as evidence of conspiracy against Arif, at any rate. 26. It is difficult to believe that Dr. Khan was a party to the conspiracy and knew wherefrom his Telegraph employee-patients purchased the medicines and who issued them cash memos. If he were a party, he would have seen to the cash memos being prepared with correct batch numbers and for genuine drugs. We must assume that he was possessed of this much common sense that a right type of a cash-memo could be prepared without purchasing the medicine itself. 27. I may deal here with the defence evidence. DW-2 Arjun says that he happened to visit Arif’s house on the evening of the 27th July, 1967 to meet his friend Sabid. Arif’s wife had high temperature. Sabid, therefore, asked Arjun to accompany him to the doctor’s place. The sick lady was taken in a Rickshaw and the two friends went on their bicycles. Dr. Khan examined the lady and gave the prescription. Arjun says that he and Sabid then went to Nutan Medical Hall and purchased the medicines. They brought the drugs to the doctor. The doctor gave an injection to the patient and they went away. The lady came to the doctor every day for injection. The doctor’s diary meant for purposes of income tax used to be written by Makbul Ahmad (PW-45) and that mentions the duration of the treatment from 27-7-1967 to 2-8-1967. The doctor received Rs. 15 towards injections and Rs. 5 for consultation. Nothing seriously discrediting has appeared in the cross-examination of Arjun DW-2 nor in the diary prepared by Makbul Ahmad, The prosecution suggests that if the medicines were actually brought to the doctor, he should have at once seen that he had not prescribed Rubraplex (because Rubraplex and Lederplex were duplication of the same drug, B Complex compound), and secondly, before injecting the medicine he should have verified the date of expiry, if not the batch number, and thirdly he should have been able to detect that the medicines brought were spurious drugs. None of these three inferences should necessarily follow. Batch numbers are never supplied to the doctors by the manufacturing concern or under any rule. None of these three inferences should necessarily follow. Batch numbers are never supplied to the doctors by the manufacturing concern or under any rule. It is difficult to tell from the cartons or the bottles whether the contents are genuine or spurious. The doctor always takes it for granted that the druggist has dispensed the correct medicine as per prescription. He under that belief, sometimes does not verify even the expiry date of the drug. It is likely that Dr. Khan did not care to see the expiry date of the medicine before he injected it. As regards Rubraplex, the doctor had not prescribed it. It was a harmless B Complex tonic and the doctor could be indifferent to its purchase in addition. His counter signing the essentiality certificate or the cash-memo, without verifying the medicines from the prescription, could be attributed to inadvertence. At any rate, there could be no dishonest intention of cheating. If Rubraplex was not covered by the prescription of the doctor, that could be disallowed by the Department. The employee was not making an unlawful gain since the medicine Rubraplex was in fact purchased for the patient, whether or not the doctor had prescribed it. He had placed before the authorities both the prescription and the cash-memo. The authorities could disallow the claim to the extent it was not supported by the doctor’s prescription 28. To sum up, I have almost discussed the entire prosecution evidence and I am reminded of the warning Baron Alderson gave to the Jury in Reg. vs. Gudge, (1898) 2 Lew 229. The case was one depending on circumstantial evidence and lest conjecture and suspicion took the place of legal proof, he felt giving of such a warning necessary. To sum up, I have almost discussed the entire prosecution evidence and I am reminded of the warning Baron Alderson gave to the Jury in Reg. vs. Gudge, (1898) 2 Lew 229. The case was one depending on circumstantial evidence and lest conjecture and suspicion took the place of legal proof, he felt giving of such a warning necessary. The warning was in the following terms: “The mind was apt to take pleasure in adapting circumstances, to one another and even in straining them a little, if, need be, to force them to form parts of one connected whole and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself to supply some link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.” In the present case what is apt to prejudice the mind is the confessional statement made by the co-accused Shyam Behari, which the law of evidence requires, should be wholly excluded. The other vital circumstance is that four out of the six medicines sold under the cash-memo, have been proved to be non-existent in the market, in the sense that the manufacturers acclaim that they differ in batch numbers and Expiry dates from their genuine products. The mind is apt to strain this circumstance a little further and assume that only genuine products were available for sale in the market; no expired drugs or spurious drugs floated, here; that whosoever had such a cash-memo, never purchased the drugs; that he and the writer of the cash-memo were in league and so was the doctor who gave the prescription. The mind prepossessed with the admissions of Shyam Behari, is bound to find consistency in this theory. But such a course proceeds on presumption of guilt and not on the innocence of the accused. Bear in mind that this is not the correct approach. Ask the following questions and find if the chain of circumstances is complete and consistent only with the guilt of the accused. Are the following propositions completely ruled out: “(i) Mohd. Arif’s wife visiting the doctor’s dispensary for consultations? (ii) Arjun going to the Nutan Medical Hall for purchase of medicines? (iii) Shyam Behari being present there and working as a salesman? Are the following propositions completely ruled out: “(i) Mohd. Arif’s wife visiting the doctor’s dispensary for consultations? (ii) Arjun going to the Nutan Medical Hall for purchase of medicines? (iii) Shyam Behari being present there and working as a salesman? (iv) His passing to Arjun expired or spurious drugs or putting wrong batch numbers inadvertently? (v) The man going for the purchase of medicines having the looks of an unwary purchaser who could be easily duped by the salesman? (vi) The doctor having been duped into believing that the medicine to be injected was a genuine product and within the expiry date, and further believing that proper medicines were dispensed by a qualified salesman? I have discussed above all these possibilities and have come to the conclusion that the circumstantial evidence answers the questions only vaguely and indefinitely, it merely creates a suspicion, but it does not lead to the conclusion of guilt with any degree of certainty. I hold that none of the charges are proved against the appellants. The appeals must therefore, be allowed.” 29. Two points remain to be considered, one of sanction under section 6 (i) of the Prevention of Corruption Act and the second, of investigation having been conducted by an officer lower in rank to that prescribed by section 5A of the Prevention of Corruption Act. Mohd. Arif was appointed polisher Grade I in the year 1943 by the then Superintendent, Telegraph Workshop. Sanction to prosecute has been accorded by Shri A.C. Chatterji (PW-48) who is the Senior Engineer. Shri Chatterji tells us that the post of the Superintendent, workshop was redesignated as ‘Manager’ in the year 1952. It was again upgraded and designated as Director in the year 1959. Under the Standing Orders which presently govern the services since the year 1968, the appointing authority for semi-skilled or unskilled categories of employees, is the Assistant Manager and in the matter of disciplinary proceedings and punishments, including removal from service, the Assistant Manager is the competent authority. The Senior Engineer is the appellate authority and the contention of the prosecution, therefore, that the sanction to prosecution has been accorded by an officer superior in rank to the appointing authority. In my view, Mohd. Arif having been appointed by the head of the Department in 1943, could not be removed from service by an authority lower in rank to the Head of the Department. In my view, Mohd. Arif having been appointed by the head of the Department in 1943, could not be removed from service by an authority lower in rank to the Head of the Department. The Head of the Department then was the Superintendent Telegraphs. The same set-up continues except that the Head of the Department is being called the Director or the Manager. Shri A.C. Chatterji admittedly holds a lower post to that of the Manager or the Director. His position does not correspond to nor is equivalent to the authority which initially appointed Mohd. Arif. The Standing Orders of 1968 would not govern Arif. He cannot be deemed to be an employee under the new set up. Shri A.C. Chatterji could not remove Arif from services and was not, therefore, a competent authority to sanction prosecution. The sanction accorded by Shri A.C. Chatterji is not a valid sanction under section 6 of the Prevention of Corruption Act and the cognizance taken by the Court of an offence punishable under section 5 (2) of the Act is vitiated. 30. On the second point of investigation by an officer of a lower rank than prescribed under section 5-A of the Prevention of Corruption Act, it is true that Shri Naqvi (the investigating Officer) had almost completed the major Part of the investigation before he applied to the Magistrate for permission under section 5-A. It is equally true that the Magistrate did not realize the significance of his order in giving permission almost mechanically, probably thinking that what was required was a format compliance with the provisions, of section 5-A. The Court below seems to have overlooked the weighty observations of the Supreme Court in H.N. Risbud vs. State of Delhi, AIR 1955 SC 196 , State of Madhya Pradesh vs. Mubarak Ali, AIR 1959 SC 707 and State of Uttar Pradesh vs. Bhagwant Kishore, AIR 1964 SC 221 that section 5-A was enacted for preventing harassment to a Government servant and was a statutory safeguard against frivolous and vexatious prosecution. The policy behind the provision is that an investigating officer of a superior rank would not manipulate evidence or suborn witnesses. We are, however, concerned here with the effect of preceding investigation on a trial which has concluded. The policy behind the provision is that an investigating officer of a superior rank would not manipulate evidence or suborn witnesses. We are, however, concerned here with the effect of preceding investigation on a trial which has concluded. Their Lordships of the Supreme Court succinctly state the law thus in Khandu Sonu vs. State of Mahrarshtra, AIR 1972 SC 958 : “Where the trial of the case has proceeded to termination, the invalidity of the preceding investigation would not vitiate the conviction of the accused as a result of the trial unless the illegality in the investigation has caused prejudice to the accused.” xxx xxx xxx “It is well established that where cognisanee of a case has, in fact, been taken by the Court On a police report following investigation conducted in breach of provisions of section 5-A the result of the trial cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. The underlying reason for the above dictum is that an illegality committed in the course of investigation does not affect the competence and jurisdiction of the Court to try the accused. The question is whether the investigation by an officer of a lower rank has brought about miscarriage of justice. The learned counsel for the appellants say that it was reasonable to believe that the investigating officer manipulated preparation of false cash-book by Kelkars, manipulated tearing off cash-memos from the running series which were probably written by Shyam Behari, influenced Shyam Behari to make confessional statements, did not seize all the purchase vouchers of the Nutan Medical Hall to show that the shop‘ was dealing in spurious drugs, did not take a search of the shop to check the stock of spurious-medicines, and did not examine the 93 employees who had preferred medical reimbursement claims, to say from whom and at what shop they had obtained the cash-memos. The investigation, thus was not fair and honest. Be that as it is, all these circumstances were in favour of the accused in the appraisal of the evidence in this Court. A faulty and incomplete investigation has proved unfavourable to the prosecution itself. There is then no miscarriage of justice.” 31. In the result, all the three appeals are allowed and the appellants are acquitted of all the offences. Their bail bonds are discharged.