T. D. Gulati v. State of Rajasrhan — 1982 DIGILAW 313 (RAJ)

MISS. KANTA BHATNGAR J —Appellant T.D. Gulati was tried for the offences under sections 120-B and 420 I. P. C. and Sec. 5(2) read with section 5 (l)(d) of the Prevention of Corruption Act by the Special Judge. (S.P.E.) Rajasthan, Jaipur. By the judgment dated July 19, 1975 he was held guilty for the aforesaid offences and sentenced to one years rigorous imprisonment and a fine of Rs. 500/-, in default to undergo three months rigorus imprisonment on each count with an order that the substantive sentences shall run concurrently. 2. Briefly stated the facts of the case leading to the trial and the conviction of the appellant are as under:- 3. The Appellant was working as a clerk in the office of the Superintendent of Post Office, Jodhpur during the year 1970. He entered into a conspiracy with the proprietor of Prince Medical Store Jodhpur that he would pay 10% of the price of medicines to him and the Proprietor would issue bogus cash-memos without supplying the medicine. That, the appellant in conspiracy with certain Doctors obtained essentiality certificates and verification without there being any necessity for the same in consequence to this plan the appellant obtained medical reimbursement of a sum of Rs. 263.50 from the Govt. The allegations were that the accused prepared false medical bills and false medical reimbursement claims. The Medical Officer concerned falsely verified them and the Proprietor of the Prince Medical Stores prepared cash-memos without supplying medicines. That, the entire transaction was bogus in order to cheat the Govt. It was also alleged that the accused being a public servant, in his capacity as public servant misused his office in obtaining the amounts of the false medical claims. Information about all this bogus transaction was received by the C.B.I. & S.P.E. Division started the investigation. During the course of investigation enquiries from certain Chemists, Stockists and Suppliers of medicines were made as to whether the medicines mentioned in the essentiality certificates were ever sold to the Proprietor Prince Medical Stores or not. Chemist Mohanlal approached the District Magistrate, Jaipur and expressed his desire to give true and correct statement. The District Magistrate, Jaipur granted him pardon. He also granted necessary sanction to prosecute the appellant. 4. Upon completion of necessary investigation, charge sheet against the appellant was filed in the Court of Special Judge (S.P.E), Rajasthan Jaipur. Chemist Mohanlal approached the District Magistrate, Jaipur and expressed his desire to give true and correct statement. The District Magistrate, Jaipur granted him pardon. He also granted necessary sanction to prosecute the appellant. 4. Upon completion of necessary investigation, charge sheet against the appellant was filed in the Court of Special Judge (S.P.E), Rajasthan Jaipur. The learned Judge, charge sheeted the appellant for the aforesaid offences and recorded his plea. The appellant denied the indictments and claimed to be tried. Prosecution examined 57 witnesses in all. No defence witness was examined. The learned Special Judge placed reliance on the testimony of Mohan Lal (P.W.2) Approver, Jagdish (PW. 56) and G.V. Ramanamurty (PW. 42). and held the appellant guilty for conspiracy with Mohan Lal & the Doctors who verified the essentiality certificates & held the appellant guilty for the criminal conspiracy as well as for having wrongful gain by use of his official status and cheating the government by obtaining money by submitting bogus cash memos. In view of these findings, the learned Special Judge convicted the appellant for the aforesaid offences and sentenced him as stated earlier. 5. Being dissatisfied with the conviction and sentences, the appellant has preferred this appeal in this Court. 6. I heard Mr. R.N. Munshi, learned counsel for the appellant and Mr. M. D. Purohit, learned Public Prosecutor for the State and gave my anxious consideration to the material on record. 7. The prosecution case is that the appellant had entered into a conspiracy with the Doctors for getting his bogus essentiality certificate verified without there being any body ill in his family or there being any requirements for any medicine Mohan Lal Proprietor of Prince Medical Stores, Jodhpur was also made a party to that conspiracy and 10% of the amount of the bill for his issuing cash memos without supplying the medicines was offered to him. According to Mohanlal the appellant had named Dr. S.K. Pathak, Dr. Ramdeo, Dr. B. N. Kalla, Dr. Barmera and Dr. S. L Mathur. to be the persons from whom he was in a position to get the essentiality certificates on the basis of bogus cash memos. None of these doctors have been examined by the prosecution. The reason for not doing so and its effect on the prosecution case, will be discussed at relevant place. Barmera and Dr. S. L Mathur. to be the persons from whom he was in a position to get the essentiality certificates on the basis of bogus cash memos. None of these doctors have been examined by the prosecution. The reason for not doing so and its effect on the prosecution case, will be discussed at relevant place. Suffice it for the present that the learned Special Judge has taken serious note to the prosecution not caring to bring those doctors who had signed the essentiality certificates in the witness box. The learned Special Judge, however, did not consider these infirmities of the prosecution as damaging its case for the reason that those doctors were not at trial before him. Prosecution has examined a good number of stockists, suppliers of medicines, from whom during the course of investigation reports were obtained to show whether particular medicines were supplied by them to Prince Medical Stores at the relevant time or not. The learned Special Judge, in view of the statement of the Approver that medicines from Jaipur and Jodhpur could be obtained without issuing cash-memos and that he also used to do the same, observed that the prosecution has wasted the time of the court in examining a large number of witnesses for that purpose. The learned Judge, however, found the appellant guilty on the basis of the statement of Approver Mohanlal, Proprietor of Prince Medical Stores sought corroborated by Jagdish (P.W. 56) nephew of the Approver, who in his absence is said to have issued cash memos to the appellant without supplying medicines to him. Another piece of corroborative evidence that the learned Special Judge has taken into consideration is the testimony of G.V. Ramanamurty (P.W. 42) Accounts Officer in the C.B.I, who had examined the record available at the Prince Medical Stores and gave the opinion that some of the medicines in the cash memos were not in the stock of the Prince Medical Stores at the relevant date. The appellant has admitted that he got the bills reimbursed on the basis of the cash-memos obtained from the Prince Medical Stores, but stated that he had obtained the medicines for the use of the patients mentioned in the essentiality certificates. 8. As discussed above the testimony of the Approver corroborated by Jagdish and G.V. Ramanamurty was the only basis for the conviction by the learned Judge. 8. As discussed above the testimony of the Approver corroborated by Jagdish and G.V. Ramanamurty was the only basis for the conviction by the learned Judge. The main question for determination in this appeal therefore, is whether the evidence of Mohanlal Approver inspires confidence, and if so, whether his statement is corroborated in material particulars by Jagdish and G. V. Ramanamurty. 9. Mr. R.N. Munshi, learned counsel for the appellant has strenuously contended that relevant dates concerning the statement of Mohanlal for the purpose of seeking pardon and the circumstances leading to his statement clearly indicate that he had not given the statement voluntarily. That, it must be because of the assurance by the police that he might have agreed to be an Approver and therefore, his statement should not have been made the basis of conviction of the appellant. It has also been emphatically urged by Mr. Munshi that the statement of the Approver recorded in the Court does not inspire confidence and, therefore, no useful purpose could have been served by seeking corroboration from other witnesses. Another argument advanced by Mr. Munshi is that Jagdish being an accomplice, his testimony cannot be considered to be the corroboration by an independent witness to the statement of the Approver. Attacking the variety of the statement of G. V. Ramanamurty, the learned counsel for the appellant drew my attention to the fact that he had not referred to the record at the time of the statement at the trial, rather has based his opinion on the report sent by him to the Investigating agency and therefore, the learned counsel urged his statement is hit by section 162 of the Code of Criminal Procedure. The learned counsel for the appellant referred to a number of authorities dealing with the requirements for relying the testimony of an Approver and the type of corroboration required in such cases. 10. Learned Public Prosecutor has controverted these contentions and submitted that Mohanlal might have repented of what he had done and his statement u/s. 164 of the Code of Criminal Procedure being spontaneous expression of what he might have felt his evidence has been rightly taken into consideration by the learned trial Judge. It has been stressed that the testimony of Jagdish and G. V. Ramanamurty lend support to the evidence of Mohanlal Approver. 11. It has been stressed that the testimony of Jagdish and G. V. Ramanamurty lend support to the evidence of Mohanlal Approver. 11. In order to appreciate the rival contentions regarding the testimony of the Approver and the corroborative evidence, it would be profitable to refer to certain authority in which the principles on the point are enunciated. 12. If an accomplice expresses his desire to disclose what he knows regarding the offence in which he had implicated, he is granted pardon and is examined as a prosecution witness as an Approver. The evidence of an accomplice is admissible in evidence by virtue of Sec. 133 of the Evidence Act. Sec.133 provides that an accomplice shall be competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the corroborated testimony of an accomplice. Illustration (b) of Sec. 114 of the Evidence Act provides that an accomplice is unworthy of credit unless he is corroborated in material particulars. The two provisions though appearing to be inconsistent as such are reconcilable. This point came for consideration before Supreme Court in the case of Deguda vs. State of Maharashtra (1) and their Lordships were pleased to observe as under: "There is no antithesis between S. 133 and illustration (b) to S. 114 of the Evidence Act, because the illustration only says that the Court may presume a certain state of affairs. It does not seek to raise a conclusive and irrebuttable presumption". Their Lordships further pleased to observe that: Reading the two together the position which emerges is that though an accomplice is a competent witness and though a conviction may lawfully rest upon his uncorroborated testimony yet the Court is entitled to presume and may indeed be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless that evidence is corroborated in material particulars, by which is meant that there has to be some independent evidence tending to incriminate the particular accused in the commission of the crime". 13. The necessity for corroboration of the statement of an accomplice was realised by their Lordships of the Privy Council in the case of Bhuboni Sahu vs. The King (2). 13. The necessity for corroboration of the statement of an accomplice was realised by their Lordships of the Privy Council in the case of Bhuboni Sahu vs. The King (2). Their Lordships were pleased to opine that: "while it is not illegal to act upon the uncorroborated evidence of an accomplice it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused; and further the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice". 14. In the case of Tribhuvan Nath vs. The State of Maharashtra (3) their Lordships of the Supreme Court were pleased to enunciate the following principle: "When the evidence of an accused is held as an accomplice evidence, Court has to see whether such evidence is reliable and whether it is corroborated in material particulars by other independent evidence direct or circumstantial". 15. In the case of Sarwansingh Rattan Singh vs. State of Punjab (4), their Lordships while enunciating the principle that, every person who is a competent witness is not necessarily a reliable witness and the test of reliability has to be satisfied by an Approver all the more before the question of corroboration of his evidence is considered by all the courts, were pleased to held that the appreciation of the evidence of an approver has to satisfy a double test. It was observed that the evidence of an Approver must show that he is a reliable witness and that is a test which is a common to all witnesses when that test is satisfied the second test which still remains to be applied is. that the Approvers evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the Approver. 16. Keeping in view the principles enunciated by the Highest Court of the Country in the various authorities referred to above, I would now discuss the statements given by Approver to find out whether he is reliable witness or not. It is only when this test is satisfied, the necessity of corroborative evidence, on which the reliability of the statement of the Approver is dependent, would arise. 17. It is only when this test is satisfied, the necessity of corroborative evidence, on which the reliability of the statement of the Approver is dependent, would arise. 17. First of all the circumstances and the manner in which Mohanlal was given pardon by the District Magistrate and was made an Approve twill have to be looked into. The case relates to the year 1970. The search of the shop was taken and relevant documents were seized by the investigating officer on January 15, 1971. Mohanlal was interrogated and his statement recorded by the police in the month of June, 1971. Thereafter he was arrested and his statement u/s. 164 of the Code of Criminal Procedure, Ex. D. 1 was recorded by the Magistrate on August 25, 1971 wherein he has deposed that he was arrested and released on bail ten days back. He had appeared before the District Magistrate on December 2, 1971 and expressed his desire to make full and correct disclosure of facts of the matter. The District Magistrate directed him to get his application forwarded by the S. P. E. Then Investigating Officer Karansingh took him to the District Magistrate, Jaipur and he was granted pardon. The question emerging from these various dates is as to when did it occur to the Mohanlal to tell the truth to the authorities concerned. The witness has stated that at the time of check up of his shop neither he told to Karan Singh, Investigating Officer about the bogus cash-memos nor was he interrogated by him in that concern. He admitted that at the time it was disclosed to him that the seizure was in concern with the bogus cash-memos issued for the medical bills and the reimbursement of T. D. Gulati. The witness admitted that from January 15, 1971, the date of checking of the shop, till June 1, 1971 the date of his interrogation by the police be did not tell any police officer or any other authority about his issuing bogus cash-memos. According to the witness he consulted Advocate Shishodia and was advised to file an application before the District Magistrate Jaipur and disclose the facts to him in case he wants to tell the truth. According to the witness he consulted Advocate Shishodia and was advised to file an application before the District Magistrate Jaipur and disclose the facts to him in case he wants to tell the truth. That, he then went to Jaipur and filed an application before the District Magistrate, Jaipur, who directed him to get it forwarded by the S. P. E. Then Karansingh accompanied him and the pardon was given to him on the next day. The witness stated that he had stayed there for two or three days and on his promise to disclose the real and true facts, he was given pardon. He has further stated that the District Magistrate had only asked him to tell the true facts but his statement was not recorded at that time. 18. Mr. R.N. Munshi, learned counsel for the appellant contended that the witness had told a lie that he on his own accord went to the District Magistrate to give statement. As stated earlier in Ex.D.l the statement u/s. 164 of the Code of Criminal Procedure was recorded on August 25, 1971. The witness has tried to conceal the fact of his meeting any police officer in this concern prior to his giving the statement and filing the application before the District Magistrate. In cross examination he has stated that before filing the application to the District Magistrate he did not have a talk with any officer of S.P.E. That, he had stayed there for six or seven days. He has further stated that two or three months prior to that he had gone in this connection to Jaipur and has given statement before the Magistrate, That, at that time also he did not meet the S.P.E. personnel. That, when he had given statement before the Magistrate, Karan Singh Inspector of S.P.E. met him outside the Court. The witness further stated that, it was only by chance that Karansingh was there, otherwise he had not informed him about his appearing before the Magistrate for the statement. The statement of the witness stands falsified by his own version in the cross-examination. He had admitted that it was Karansingh Inspector who had filed the report before the Magistrate for recording his statement. Initially he had stated that he did not stay at Jaipur when he went to give the statement before the Magistrate. The statement of the witness stands falsified by his own version in the cross-examination. He had admitted that it was Karansingh Inspector who had filed the report before the Magistrate for recording his statement. Initially he had stated that he did not stay at Jaipur when he went to give the statement before the Magistrate. But in cross-examination he admitted that it was per mistake that he has so stated and his statement was recorded by the Magistrate on the day next to his appearing before him. This type of version of the witness raises suspicion about his straightforwardness. 19. There is no hard and fast rule as to when an accomplice must make up his mind to disclose the true facts. Whether a person is genuinely repentant for the commission of the crime and is sincerely desirous of making a clean breast of the whole affair by way of penitence is to be gathered from the circumstances of the case. As to what was the occasion for his to disclose the facts and whether it was his voluntary decision or at the intervention of some-body else are a few important factors regarding consideration in such matters. 20. In the present case the statement indicates that it was after pounder-ing over the matter for a considerable time and taking a chance that Mohanlal had expressed his desire to be an approver. Because of the appellant keeping quiet for about six months after the search of his shop being taken without there being any excuse for it, the learned counsel for the appellant has legitimately argued that some assurance might have led him to give the statement u/s. 164 of the Code of Criminal Procedure. Similarly the gap of more than three months between the statement u/s. 164 Cr.P.C. and approach to the District Magistrate is of considerable importance. 21. In the Court the witness has stated that appellant had asked him not to write the name of the Doctor because in case that Doctor would not be available he will have to face difficulty. That, he therefore, stopped writing the name of the Doctor and used to write the same after the accused bringing back the cash-memos after verification from the Doctor. Such an important factor has been committed by the witness in the statement u/s. 164 Cr.P.C. Ex. That, he therefore, stopped writing the name of the Doctor and used to write the same after the accused bringing back the cash-memos after verification from the Doctor. Such an important factor has been committed by the witness in the statement u/s. 164 Cr.P.C. Ex. D. 1 and the only explanation given by him that he forgot to state it there. Mr. Munshi, learned counsel for the appellant submitted that this indicates one improvement in the statement at the trial from the initial story given by the Approver. In cross-examination the witness has stated that except the accused he was not. given any bogus cash-memos to any body. The attention of the witness was drawn to portion A to B of his statement Ex. D.l where he has stated about his issuing bogus cash-memos in the name of persons other than the appellant and he admitted to have given such statement adding further that he used to do so. The witness expressed his inability to tell the names of the persons in whose name he had issued bogus cash-memos. He also could not say how much amount he had earned by issuing such cash-memos. It is relevant to note that the investigating agency did not care to trace out those cash-memos and find out in whose names they were. Be it as it may, it throws doubt on the truthfulness of the statement of the witness and suggests that he was trying to suppress certain facts in order to show his innocence to the effect that it was only the rare case of the accused that he was allured by the gain of 10% of the amount of the bill. Mr. Munshi also referred to the admission of this witness that he was not maintaining the stock register and that his record was not complete. In view of this circumstances and the nature of the statement of the witness discussed above, I find sufficient force in the argument of the learned counsel for the appellant that this solitary witness to the alleged conspiracy is not of sterling worth. 22. The appreciation of the evidence of the witness does not satisfy even the first test of the reliability of his statement. The question of second test i.e. there being sufficient corroboration to the material facts in the statement arises only when it satisfied the first test. 22. The appreciation of the evidence of the witness does not satisfy even the first test of the reliability of his statement. The question of second test i.e. there being sufficient corroboration to the material facts in the statement arises only when it satisfied the first test. Despite that, as the learned Special Judge has placed reliance on the statement of this witness and sought corroboration in an acted upon the testimony of Jagdish and G.V. Ramanamurty, I consider it worth to scrutinise the evidence of those two witness also. 23. Jagdish (P.W. 56) is the nephew (sisters son) of Mohanlal Approver. According to the witness he used to sit in the Prince Medical Stores in the year 1970. The witness further stated that, in the absence of his uncle he was also looking after the sale of the medicines. According to the witness in the year 1970 in the sixth or seventh month in the summer season, his uncle, in the presence of accused T.D. Gulati, told him that on his demand of the cash memos he may issue the same to him after taking 10% of the amount from him. That he was also directed by his uncle not to give medicines to him. He had proved said cash memos to be in his hand. 24. The learned counsel for the appellant has criticised the evidence of the witness on the ground that he happens to be the real nephew of Approver Mohanlal & therefore, cannot be said to be an independent witness. It has also been argued that his statement before the police Ex. D.2 is different from his version in the Court. In Ex. D.2 he has not stated about his uncle issuing directions for providing bogus bills after taking 10% of the amount without supplying the medicines in the presence of accused T.D. Gulati. The omission on the face of it may not appear to be important, but in view of the facts & cicums-tances that Mohanlal nowhere stated about his directing his nephew in the presence of Gulati, this omission in the earliest version assumes importance. Even leaving this fact apart the evidence of the witness requires close scrutiny for the reason that a college going boy of twenty years of age at the relevant time could be expected to understand whether the act he was doing was right or wrong. 25. Mr. Even leaving this fact apart the evidence of the witness requires close scrutiny for the reason that a college going boy of twenty years of age at the relevant time could be expected to understand whether the act he was doing was right or wrong. 25. Mr. Munshi vehemently argued that the statement of Jagdish should not be pressed into service as a corroborative piece of evidence to the statement of approver Mohanlal because Jagdish was an accomplice to the crime and one accomplice cannot corroborates another accomplice. He referred to the case of Bhuboni Sahu vs. The King (2) (supra) wherein it has been laid down that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice. The pertinent question is whether Jagdish can be taken to be an accomplice and the above principle may be made applicable to his testimony. 26. The learned Special Judge has discussed this point in the judgment. He has not considered Jagdish to be an accomplice for the reason that he was never made an accused, nor had he suffered from the fear of his being implicated in the case. The learned Special Judge has observed that though it is true that his act is not better than the act of Mohanlal, yet his statement is more credible because at no point of time, he suffered from a fear complex. In the present case Jagdish was of course doing a wrong act and was indirectly a party to a illegal act but it not being certain, whether he was gaining anything in that transaction, he cannot be branded as an accomplice. 27. The Courts have not only emphasised the independent corroboration rather have also looked with concern whether that corroborative evidence is from an independent witness. Jagdish cannot be said to be an independent witness because he happens to be the real nephew of Mohanlal and in view of his age & the fact of his being a college student at the relevant time he cannot be expected to be ignorant of the fact that his maternal uncle could be implicated in the case. 28. It is pertinent to note that not a single question has been asked to the accused in his statement u/s. 313 Cr.P.C. regarding the statement of Jagdish so as to give an occasion to explain what he has stated against him. 29. 28. It is pertinent to note that not a single question has been asked to the accused in his statement u/s. 313 Cr.P.C. regarding the statement of Jagdish so as to give an occasion to explain what he has stated against him. 29. In view of the above discussion and the nature of the statement of the witness, his evidence cannot be said to be an independent corroboration to the statement of Approver Mohanlal 30. Prosecution has examined G. V. Ramanamurty (P.W. 42) to substen-tiate its case that some of the medicines mentioned in the cash-memos in question, were not in the stock of Prince Medical Stores at the relevant time. The learned counsel for the appellant has emphatically argued that the statement of the witness, apart from being vague, is hit by Sec. 162 Cr.P.C. because the witness has not given statement by referring to the various documents at the trial, rather has based the statement on the report filed by him during the course of investigation. The witness had submitted the initial report on April 30, 1971 to S.P.E. Jaipur. Subsequently the Investigating Officer called for reports from the supplying firms to intimate the supplies made by them to M/s. Prince Medical Stores. On going through them the witness found the receipts more than previously calculated. He therefore, filed the revised report. On the basis of both the reports, the witness calculated that certain medicines might have been available in the stock of the Prince Medical Stores at the relevant dates. The argument about the infirmity i. e. basing his statement only on the report, was raised in the trial Court also but the learned Special Judge did not attach much importance to it and only observed that: "It would have been better if the prosecution had produced all the record itself in the Court but the short-cut method adopted by the prosecution in getting a statement prepared and produced in the court does not make the statement inadmissible or unreliable". The report of the witness submitted during the course of investigation may not strictly be said to be a statement u/s. 161 Cr.P.C. but in view of the limited use of previous statement the Court should have insisted upon the production of the documents in the Court before placing reliance on the statement based on report filed by the witness before the Investigating Officer. It is also noteworthy that the witness had given revised report on the basis of the receipts from the suppliers of the medicines. In this connection the statement of Mohanlal Approver has to be looked into. He has stated that medicines can be purchased without obtaining cash memo from Jodhpur, Jaipur, Ajmer & Agra. He further admitted that he had also purchased medicines in this manner. This version makes the position clear that the stock on the relevant date was not only that as evident from the receipts and cash-memos available at the shop at the time of the seizure. There is force in the argument of the learned counsel for the appellant that the possibility of the medicines mentioned in the cash-memos in question being there in the stock on the relevant dates cannot be over ruled because the purchase was made by Mohanlal from concerns other than those from whom the investigation was made and that too without obtaining cash memos and therefore, the report of the G. V. Ramanamurty cannot be said to be exact. The witness has admitted that there was no stock register available to him for scrutiny along with other documents. Approver Mohanlal has also stated that he was not maintaining the stock register. This being the position no specific opinion could have been formed about the stock at the relevant date. It is also to be noted that Mohanlal has stated that he does not recollect whether the medicines mentioned in the cash-memos were available in the shop at the relevant date or not. From this type of statement of G.V. Ramanamurty in the light of the statement of the Approver I find myself unable to agree with the findings of the learned Special Judge that G. V. Ramanamurty has substianted the prosecution case that the medicines were not available in the stock of Prince Medical Stores. It is pertinent to note that specific questions regarding the act and report of the witness have not been put to the accused in his statement u/s. 313 Cr.P.C. rather a general question regarding all the prosecution witnesses viz G.V. Ramanamurty, Narendra Kumar, Tej Bahadur Singh & Bhivrajsingh that they have investigated the case what has he to say, was put to him. Be it as it may, from the above discussions, I am of the opinion that G.V. Ramanamurtys statement does not help the prosecution as a corroborative piece of evidence to what Mohanlal approver has stated, and it cannot be said to lend support to any part of the statement of Mohanlal. 31. The most important factor damaging the prosecution case and strengthening the defence is the non-examination of the various Doctors who have verified the essentiality certificates enabling the appellant to get the amount of the bill reimbursed. The learned Public Prosecutor forcefully argued that the learned Special Judge has rightly not given importance to this infirmity of the prosecution because the Doctors were not at the trial before the Court. It has also been argued by the learned Public Prosecutor that the Doctors, even if examined, at the most would have stated that they prescribed medicines for a particular patient and issued essentiality certificates but they could not be in a position to state whether the appellant actually purchased those medicines and used them for the patient they were meant for. Another submission of the learned Public Prosecutor in this regard is that the Investigating Officer had found those Doctors also guilty and wanted them to be prosecuted but for the reasons best known to the higher authorities, their prosecution was not sanctioned and departmental proceedings might have been taken against them. 32. The prosecution case is that the appellant had entered into conspiracy with the Doctors and the proprietor of the Prince Medical Stores in order to achieve his aim to get the bogus bills reimbursed. Instead of examining the Doctors from whom the appellant is alleged to have got the cash memos verified and obtained the essentiality certificates obtained, the prosecution examined Dr. V.M. Bhandari (P.W. 55) to prove whether the medicines given in the essentiality certificates were required in the circumstances mentioned and whether such a treatment was necessary. The learned Special Judge has rightly rejected the statement given by the witness because his statement was obtained by sending him a questionnaire and getting his reply in writing. The statement was considered to be not better than the statement of a witness U/S. 161 Cr.P.C. Apart from that, the learned Special Judge also took in view the fact that the statement of the Doctor Bhandari does not categorically show that Dr. Pathak or Dr. The statement was considered to be not better than the statement of a witness U/S. 161 Cr.P.C. Apart from that, the learned Special Judge also took in view the fact that the statement of the Doctor Bhandari does not categorically show that Dr. Pathak or Dr. Ramdeo could not have prescribed those medicines in any circumstance and the medicines would have been wholly superfluous for the treatment of such a disease. The learned Special Judge has observed that the statement of Dr. Bhandari is not only inadmissible in evidence but also unnecessary and of no consequence. 33. The Doctors who had issued essentiality certificates were important persons in the case. If they had falsely verified the cash memos and issued false essentiality certificates, they were accomplices. In case they had issued genuine essentiality certificates then the prosecution was in error to suppress their evidence. In view of the prosecution case that the Doctors had also implicated them in the conspiracy it would be beneficial to reproduce the relevant portion of the judgment of the learned Special Judge which reads as follows: "It will be pertinent to say that the case of the medical officers was not less than the case of the chemist or the accused. For a case like the present one it was necessary for the accused to have entered into a conspiracy not only with the chemist, but also with the medical officer because the chain of events could not be completed unless and until it is shown that the medical officer issued bogus cash memos and bogus essentiality certificates. If they issued prescriptions for realty sick person and verified the essentiality certificates for genuine purposes, the very foundation and the basis for criminal conspiracy would go away". 34. The learned Special Judge was not satisfied with the argument of the learned Public Prosecutor that the senior officers of C.I.D. decided to drop the case against the Doctors and to request the department for making departmental enquiry and was of the opinion that this is more or less suppressing evidence and denying the opportunity of seeing the case of the medical officers to the accused who have been brought to book. Despite realising the necessity of the Doctors either being prosecuted or brought in the witness box, the learned Special Judge did not consider it to be a serious infirmity in the prosecution case only for the reason that he was not concerned with their cases at the trial. I appreciate the findings of the learned Special Judge regarding the infirmity in the prosecution case, but am constrained to disagree with him that as the Doctors were not at trial before the Court the failure of the prosecution in that regard was of no consequence. 35. Mr. Munshi drew my attention to the various documents and the relevant essentiality certificates to substantiate his contention that consultation fees of the Doctors and fee for injections were also included in the essentiality certificates. On checking the record, I found substance in this contention. The learned Public Prosecutor urged that the Doctors might have issued essentiality certificates, being ignorant of the fact is not reconcilable with the various fees mentioned in the essentiality certificates. If the Doctors had not received the amount of fee for consultation and injection how could it be expected of them to issue the certificate. If they had falsely verified the same again the question of dropping the accomplices without there being any reason for the same would crop up for consideration. 36. The Investigating Officer Karansingh has stated that he interrogated Dr. H.C. Ramdeo, Dr. R.N. Kalla, Dr. S.K. Pathak and Dr. S.L. Mathur. If it was so, then it was all the more necessary for the prosecution to examine those Doctors to give an occasion to the defence to substantiate its case that the prescriptions were genuine & essentiality certificates were rightly issued. This was all the more necessary in view of the statement of Mohanlal that the accused was having a note-book in which certain medicines were written and he was placing order for those medicines. It is relevant to note that neither such note book has been recovered by Investigating Officer, nor in absence of the version of the Doctors it can be said that the medicines were purchased not on the basis of the prescriptions rather on the basis of the medicines in a note book. It is relevant to note that neither such note book has been recovered by Investigating Officer, nor in absence of the version of the Doctors it can be said that the medicines were purchased not on the basis of the prescriptions rather on the basis of the medicines in a note book. It is also to be observed that it is not the case of the prosecution that the Doctors in question were not available at the trial rather the place of posting even of some of them have come on record. The learned trial Judge was aware of the short-comings, but in view of his findings discussed above, he has held that despite short-comings of the prosecution case it is clear that the accused had obtained bogus cash memos. I find myself unable to agree with this observation. In a criminal case, prosecution is bound to bring all relevant material on record to substantiate the charge against the culprit. The argument of the learned Public Prosecutor that once the accused had admitted the receipt of money by way of reimbursement on the basis of the essentiality certificate, it was for him to discharge the burden that the persons to whom those certificates referred were really sick, has no force. The reason again is the same i.e. the Doctors not being brought forth to explain whether the certificates issued were genuine or not. At the point of reparation, I may say that for some of the items like the consultation fee and injection fee stated to be paid to the Doctors, they alone could be in a position to say whether they had received the same or not. Similarly it was only for them to say whether they had actually examined the patient and prescribed the necessary medicines. 37. From the above discussion the irresistible conclusion would be that the prosecution case suffers from serious short coming apart from the fact that the sole basis of conviction, the statement of the Approver, in itself infirm, lacks support of any independent, unimpeachable evidence. In such circumstances I am inclined to hold that prosecution has not succeeded in bringing home the guilt against the appellant beyond all shadows of reasonable doubt and he is, therefore, entitled to benefit of doubt. 38 Consequently, the appeal is allowed. In such circumstances I am inclined to hold that prosecution has not succeeded in bringing home the guilt against the appellant beyond all shadows of reasonable doubt and he is, therefore, entitled to benefit of doubt. 38 Consequently, the appeal is allowed. The conviction and sentences awarded to the appellant are set aside & he is acquitted of the charges levelled against him. He is on bail and need not surrender to it. His bail bonds stand discharged.