Raj Kumar Jain vs State of Punjab

Surinder Singh, J.

Dr. Raj Kumar Jain has filed this appeal against the judgment dated 19th/27th February, 1980, of the learned Special Judge, Jullundur, whereby he had convicted and sentenced the appellant as under :

(1) For offence of criminal misconduct under section 5(1)(d) of the Prevention of Corruption Act, punishment under section 5(2) of that Act To undergo rigorous imprisonment for one year and to pay a fine of Rs. 400/ in default of payment of fine to undergo further rigorous imprisonment for three months;

(2) For offence of criminal misconduct under section 5(1)(d) of the Prevention of Corruption act, punishable under section 5(2) of that Act To undergo rigorous imprisonment for one year and to play a fine of Rs. 400/, in default to undergo further rigorous imprisonment for three months;

(3) For offence under section 161, Indian Penal Code To undergo rigorous imprisonment for one year.

(4) For offence punishable under section 409 of the respondent. To undergo rigorous Imprisonment for one year and to pay fine of Rs. 400/, in default to undergo further rigorous imprisonment for three months.

The substantive sentences of imprisonment were ordered to run concurrently.

Briefly stated the prosecution case is that Dr. Raj Kumar Jain was posted as Senior Medical Officer, Incharge, Civil Hospital, Nakodar during the period from April 25, 1972 to February, 23, 1974. Shri Hari Ram, the then Inspector Vigilance, Jullundur received reliable information that Raj Kumar Jain, appellant, was in the habit of taking bribe from patients and the other persons, who went to him in connection with medical examination, Xray et cetra. He even misappropriated the amount entrusted to him by such persons on behalf of the Government. The details of this information are given in the first information report, Exhibit PA/1. On the basis of this information, a case was registered under section 5(2) of the Prevention of Corruption Act and sections 161, 409, 467 and 471 of the Indian Penal Code, at Police Station Nakodar, on 4th October, 1976. After investigation, the appellant was challaned. He was tried by the learned Special judge. There were nine count of commission of offences against him. The learned trial Judge acquitted the appellant of the charges on the all the counts, except item Nos. 1, 4 and 8.

The allegations regarding count No. 1, are that Gulzar, Jagdish and Babu Ram had been selected as beldars on work charge basis in the office of SDO, PWD (B and R). In this connection, they went to Dr. Raj Kumar Jain for medical examination on 30th December, 1972 for ascertaining their physical and medical fitness in regard to their first entry into service. The appellant charged Rs. 15/ from each of them for conducting medical examination. Under the statutory rules framed by the Government under Article 309 of the Constitution of India, the appellant could charge only Rs. 4/ for this medical examination, because the Beldars fall in the category of Class IV Employees. The appellant was further required to deposit Rs. 2/ for each of the three witnesses medically examined by him in the State Treasury in the account of the State Government. He did not do so.

Dr. Daljit Singh, Assistant in the office of the Director of Health Services (PW 20) has produced and proved a copy of the notification abovementioned. Jatinder pal SDC (PW 21) produced and proved Exhibit PHH, PFF, PGG, copies of the letters dated 18th February, 1972, regarding the appointment of Gulzar, Jagdish and Babu Ram respectively as Beldars. These letters were issued by SubDivisional Engineer, Nakodar. These letters required the above witnesses to produce their medical fitness certificates because they would be able to draw their first bill only after production of such certificates. He further stated that all these three witnesses produced medical certificates, Exhibits PB, POC and PD.

The learned counsel for the appellant has argued that Gulzar, Jagdish and Babu Ram are not reliable witnesses. They had earlier sworn affidavits, Exhibits DA to DC before the Judicial Magistrate, wherein they had averred that the appellant had neither demanded nor charged any fee from them for their medical examination. Even otherwise these persons are complainants in a case of bribery and their statements could not be acted upon without any corroboration.

I have perused the record and considered the arguments of the learned counsel for the parties. Gulzar, Jagdish and Babu Ram do not inspire confidence, though they had been made to pay excessive amount by the appellant than was due, they did not report this matter to any authority. Mr. V.P. Prashar, the learned Assistant Advocate General, appearing for the State, has not controverted the assertions of the defence that these witnesses knew that the money they were paying to the appellant beyond the prescribed fee of Rs. 4/ was a bribe. It is well settled that statements of complainants in corruption cases required independent corroboration, which forthfully lacking in this case. Even these three witnesses do not corroborate each other though they were medically examined on the same day and had to join the same office. There is no other evidence which may support the statements of these witnesses regarding payments of money to the appellant. They did not report this matter to any authority at an early date. The version given by them in Court is a highly belated one. This also detracts from their veracity.

The appointment letter specifically mentioned that they had to produce a medical certificate within ten days of its issuance. It was issued on 18th December, 1972. Still all these three witnesses go to the medical examination on 30th December, 1972. It is also doubtful as to whether rule fixing the fees of the doctors is applicable to the appellant. All these three witness had been appointed as work charge employees. They are not regular employees of the Government. They cannot be said to be appointed to Class IV posts. There is no restriction on the fee to be charged for medical examination from work charge employees. If these rules are not applicable to the medical examination of Gulzar Singh and his companions, then there was no requirement of deposit Rs. 2/ in the treasury by the appellant. In fact it is argued by Mr. D.V. Sehgal Advocate, the learned counsel for the appellant, that Annexure to Rule 3 of the Punjab Civil Service Rules. Vol.I/Part I indicates that Rs. 2/ have to be deposited in the treasury by the person who is to be medically examined before the Medical Officer, Column 9 thereof reads as under :

"9. Please state whether you have deposited the Medical Examination Fee in the Government Treasury under head "280MedicalAAllopally(d) Other ReceiptsExamination and Licence fee'', according to the status of the post against which you have been appointed. If so, state the amount and the Treasury receipt No. and date.

I declare all the above answers to be, to the best of my belief, true and correct.

I also solemnly affirm that I have not received a disability certificate pension on account of any disease or other condition.

Candidate''s Signature

Signed in my presence "

It thus was not the duty of the appellant to deposit any part of the fee in the treasury in the name of the State Government. It was the duty of the person to be examined. So no money can be said to have been entrusted to the appellant. For these reasons the prosecution has failed to prove the allegations on count No. 1 against the appellant.

The allegations, under count No. 4 are that appellant conducted the medicolegal examination of Karnail Singh and Shankar. Copies of their medical examinations are Exhibits PO and PQQ respectively. Some of the injuries on the persons of these two injured were kept under observation and for the opinion of the Radiologist. For medicolegal examination of an injured in a noncognizable case the appellant was entitled to charge his fees. In both these cases the xray examination showed that injury on the person of the injured was grievous and the offences committed were thus declared cognizable. In such a situation the appellant was required to return the fee to the injured. According to the records, the appellant had returned the fee charged from Karnail Singh and Shanker after the receipt of xray reports. This plea regarding Karnail Singh has been accepted. So far as Shanker is concerned, the learned trial Judge has held that it was the duty of the accused appellant to prove the thumb impression/signatures of Shanker on the receipt in the official record. Admittedly, nobody has come forward to state that Shanker had not been paid that money by the appellant. Shanker had died a long time back. So, no witness has come forward to claim that the appellant had not returned the money.

In his statement under section 313, Code of Criminal Procedure, the appellant has specifically stated that he had paid back the money after the receipt of xray report. In the absence of any other evidence, this statement has to be accepted. In the circumstances of the case it was not the duty of the appellant to get the thumb impression/signatures on the receipt proved. The charges on count No. 4 also fail.

The next comes count No. 8. The allegations are that Sewa Singh (PW 6) had a mind to go to Belgium. For this purpose, he contacted the appellant on 23rd February, 1974 and got himself medically examined. The appellant issued him a medical certificate. He charged Sewa Singh Rs. 30/ against the prescribed fee of Rs. 10. Apart from the statement of Sewa Singh, there is no evidence to support his allegation. Sewa Singh is an educated persons. He has admitted that till the registration of the case, he did not report this matter to anybody. he was also not aware that he was being made to pay Rs. 20/p as bribed. His statement cannot form a basis of conviction without independent corroboration. The conduct of this witness in not reporting the matter to the authorities for more than two years also casts a doubt on the truthfulness of his statement. No reliance can be placed on the statement of Sewa Singh.

There is no other evidence against the appellant in support of the charges. I, therefore, accept this appeal, set aside the conviction and sentence of the appellant and acquit him. The fine, if paid, shall be returned to the appellant.