State by Public Procecutor vs K. Srinivasan and Others

Ratnavel Pandian, J.—The State represented by the learned Public Prosecutor has preferred this appeal questioning the propriety, legality,

and validity of the order of acquittal passed by the II Additional Special Judge, Madurai, in C.C. 36 of 1971 on his file, acquitting accused Nos. 1

to 5 of all the charges with which they were tried. There are 25 charges in all, of which the first charge of criminal conspiracy is directed against all

the accused. Further, accused-1 is charged of an offence punishable u/s 420, I.P.C., (Charges 2, 3, 5, 6, 8, 9, 11, 12, 14, 15, 17, 18, 20, 21, 23

and 24) and u/s 5 (2) read with Section 5 (1) (id) of the Prevention of Corruption Act, 1947, (hereinafter referred to as the Act), Accused 2

charged u/s 5 (2) read with Section 5 (1)(d) of the Act under charge Nos. 4, 7, 10 and 13, A3, u/s 5 (1)(d) of the Act under charges 22 and 25,

and A4 u/s 5(2) (d) of the Act under Charges 16 and 19. A5 is stated to have died during the pendency of the appeal, and the learned Public

Prosecutor has filed a memo in Crl. Appeal No. 341 of 1976 stating that he died a year ago.

The allegations under the first charge are that accused-1 to A4 (public servants) and accused 5 along with approver P.W. 7, entered into a

criminal conspiracy between August, 1966 and November, 1966 or thereabouts at Madurai and Trichy, agreeing to do certain illegal acts, viz., to

cheat the Government of India, in that accused-1 dishonestly and fraudulently submitted false medical reimbursement claims along with false cash

bills and ''A'' certificates and claimed reimbursement of the expenses that he was alleged to have incurred in getting the alleged medical treatment

for himself or his dependants and that accused 5 (sic) had supplied the cash bills as if accused I bad purchased the medicines from M/s. Rani

Medical Mart, Madurai, and thereby enabled accused 1 to prefer the said false reimbursement claims and A2, A3 and A4 who were Civil

Assistant Surgeons and Authorised Medical Attendants issued false ''A'' certificates, and thereby enabled A1 to make false claims.

The allegations under the various charges levelled against accused No. 1 for offences punishable u/s 42J, I.P.C.. are that accused I in pursuance

of the abovesaid conspiracy submitted false medical reimbursement claims for some specified amounts for the alleged medical treatment of himself

or his dependants, along with false cash bills as detailed in the respective charges.

The allegations against accused 2 to 4 under the various charges stated above are that they being public servants, by illegal means or otherwise,

by issuing false essentiality certificates as if they had treated A1 or the members of his family, obtained pecuniary advantage as detailed in the

respective charges, and thereby committed the offences punishable under the provisions of the Act.

To substantiate the above charges, the prosecution examined P. Ws. 1 to 22, filed Exs. P1 to P166 and marked certain material objects.

The history of this case can be briefly stated as follows:-The Central Bureau of Investigation, Madras, unearthed the existence of the false

medical reimbursement racket at Madurai leading to a huge loss of amount to the Government of India, on receiving information about the large-

scale swindling of money under the pretext of medical reimbursement claims by employees belonging to the Post and Telegraph Department at

Madurai with the active connivance of certain chemists, touts and Authorised Medical Attendants at Madurai. This is one of the cases falling in that

line.

P.W. 3 speaks about the procedure followed in the matter of submission, preparation and processing of the medical reimbursement bills and of

the making of final payments. During the relevant period of occurrence in question, P.W. 3 was working as Deputy Superintendent of Post Offices,

Madurai between March, 1966 and November, 1967. All the employees in the P. and T. Department are eligible for medical reimbursement

facility under the Central Government Medical Attendants Rules, 1944. Besides the employees, their dependants were also eligible for this facility.

After the medical treatment of the employee or his dependants, the employee has to submit the reimbursement claim in the prescribed form M.E.D.

97 in duplicate, sup ported by a certificate in the form ''A'', which is Called the Essentiality Certificate, from an Authorised Medical Attendant,.

This certificate, attested by the employee or the claimant is to be enclosed along with the claim for medical reimbursement, which has to be

supported by the cash bills for the purchase of the medicines duly countersigned by the Authorised Medical Attendant. The P. and T. employees at

Madurai used to submit their claims to the Sub Post Master at Madurai who would thereafter transfer them to the Office of the Superintendent of

Post Offices, Madurai. The Head-clerk of that Office would distribute to the concerned clerks who would check the claims with reference to the

rules, and if the claims are in order, the clerks would prepare a sanction memo for the amount eligible and put up the same along with the claim bills

for the signature of the concerned officer. After the counter-check of the claims by the concerned officers (sic) whether these claim papers would

be in order, all the bills, along with the original papers would be forwarded to the Head Post Master for arranging payments and the duplicate

copies would be retained in the forwarding office. Then the Head Post Master would prepare a bill in duplicate in form AGG 20. The Head Post

Master would also prepare an acquittance roll and draw the necessary amount covered by the claim and the amount would be sent by M.O. to the

Sub Post Master at Madurai for disbursement to the claimant. The Sub Post Master would distribute the amounts to the claimants on obtaining

acknowledgements from them in the acquittance roll and forward the acquittance roll to the Head Post Master.

Accused No. 1., who was admittedly a public servant, had (sic) submitted false reimbursement claims as detailed in the respective charges,

claiming a specified amount on the pretext that he or his dependants as the case may be, got medical treatment and that he purchased the

medicines from Rani Medical Mart. Along with all these reimbursement claims, he had produced false bills as if he had purchased the medicines

from the above medical shop by incurring the expenses noted in each of the purchase bills. It is the case of the prosecution that accused 1, without

incurring any expenditure on that account had made these reimbursement claims by producing the false purchase bills when actually he had not

incurred such expenditure towards the purchase of the medicines, and, therefore, according to the prosecution, accused-1 has not only committed

an offence punishable u/s 420, I.P.C., but also offences punishable under the provisions of the Act as detailed in each of the charges levelled

against him.

Ramanatha Iyer, P.W. 4, who was the then Sub Post Master Thallakulam, during 1965 to September, 1967, corroborates the evidence of

P.W. 3. Both of them give a detailed version about the procedure followed by the office in the payment of claims made on the medical

reimbursement claims.

The second accused against whom charges 4, 7, 10 and 13, and the third accused against whom charges 22 and 23, and the fourth accused

against whom charges 16 and 19, have been framed were all working during the relevant time as Civil Assistant Surgeons in the Government

Erskine Hospital at Madurai. These three doctors, according to the prosecution, had given the ''A'' (Essentiality) Certificates signed by them on the

basis of which claims were made by AI and also have signed on the reverse of the cash bills issued by the Chemists. It is stated by the prosecution

that the medical officers have issued the certificates falsely and have signed on the reverse of the bills with the full know ledge that no such

medicines mentioned in the bills have been actually purchased. According to the prosecution, these are the bills which were issued by P.W. 7 (who

is the approver in this case), he being the owner of Rani Medical Mart, through the tout A5.

On 12th December, 1967, Mr. E.V.K. Nambiar (P.W. 21) states that on information about the large-scale swindling of money, by way of

false reimbursement claims, he obtained a search warrant from the Sub-Divisional Magistrate, Poonamallee, searched the premises of Rani

Medicals of which P.W. 7 is the owner in the presence of P.W. 5 and seized a number of documents as described in the search list Ex. P55.

P.W. 20, Inspector of Police, S.P.E., C.B.I., Madras, between 1965 and 1970, searched the house of A-5 Subbiah on 28th November,

1967 in the presence of P.W. 13 (Thangakrishnan) on the strength of a search warrant issued by the Sub-Divisional Magistrate, Poonamallee, and

in the course of the search, he recovered a number of documents as detailed in the search list Ex. P77. He also seized a cash of Rs. 8,436 under

the search list.

P.W. 20 searched the premises of accused 3 on 11th December, 1967 in the presence of P.W. 14 and seized a number of documents under

Ex.P. 136, the search list.

P.W. 22 (Shanmugham) registered a case in R.C. No. 2 of 1969 u/s 120-B, I.P.C., read with Section 420,1.P.C., and Sections 5 (2) and 5

(1) (dl of the Act and took up investigation. Ex. P. 166 is the first information report in this case.

Subsequently, a confessional statement u/s 164, Code of Criminal Procedure, was recorded from P.W. 7 (Jagannathan) by P.W. 17, the Sub-

Divisional Magistrate, Dindigul. Ex. P. 57, is the confessional statement of P.W. 7.

The papers in the claim petitions were referred for expert opinion by P.W. 12 with the particulars regarding the disease, the age of the patient,

period of treatment said to have been undergone, the particulars of the medicine and the medicines prescribed, the expert went through the

particulars and made his remarks.

P.W. 22 after verifying the records concerned in the case, examining the witnesses and completing the investigation, filed the charge-sheet

against all the accused on 28th July, 1971 on getting the requisite sanction for prosecution of the officials, viz., accused 1 to 4.

Accused 1 to 5 were examined u/s 342, Code of Criminal Procedure with reference to the incriminating pieces of evidence appearing against

each of them. A-1 would admit having laid claims under Exs. P5, P10, P15T P20, P25, P29, P35 and P37 with the A certificates Exs. P6, P11,.

P16. P21, P26, P30, P34 and P33 issued by accused 2 to 4 and cash bills Exs. P7, P12, P17, P23, P27, P31, P35 and P39 of Rani Medical

Mart and Exs. P8, P13, P18 and P22 of Ramakrishna Drug Stores and received the claim amounts against his a quittance under Exs. P41 to P45,

and also admits Ex. P123, the calculation memo, as being in his handwriting. However, he denies that the cash bills are false.

A-2 admits having signed the A certificates Exs. P16, P21, P26 and P3C, and counter signed the cash bills Exs. P17, P18, P22 and P23.

A-3 admits having signed Exs. P34 and P-38, the A certificate and cash bills Exs. P35 and P39.

A4 admits having signed Exs P6 and P 11, the A certificate and the cash bills Exs. P7, P8, P12 and P13. According to accused 2 to 4, they

issued the certificates and signed the cash bills only on the basis of the treatment given by them and that they did not issue any false certificates.

A5 has totally denied his complicity with the offence in question, but would admit the recovery of certain promissory notes, cash books and

account books.

The learned trial Judge, for the discussions made in his judgment, has found (sic) all the accused not guilty of any of the charges and

consequently has acquitted them. Hence this appeal by the State.

The learned trial Judge has passed the order of acquittal mainly on the following grounds:-(1) Though accused 2 to 4 are public servants, they

cannot be said to have abused their position as public servants, but had issued the certificate only as a private practitioner. (2) The evidence of the

approver (P.W.7) is not corroborated in the manner'' known to law and the documents produced in the case also, instead of corroborating their

testimony, would make the same unreliable. Even though the medical officers (Accused 2 to 4) would admit their signatures in the ''A'' certificates,

they are not admissible in evidence. (31 The evidence of P. Ws. 6, 8 and 9 is not accepted.

Challenging the reasons given by the trial Judge as erroneous, the learned Public Prosecutor would vehemently contend that the trial Court

ought not to have disregarded the testimony of P. Ws. 7, 6, 8 and 9, and that the reasons assigned, for disbelieving them are unacceptable. He

would further submit that the facts and circumstances of this case would lead to the irresistible conclusion that the prosecution has satisfactorily

established the case. Finally he would contend that the lower court has failed to appreciate the fact that the medicines mentioned in the cash bills

relating to the claims of accused 1 tallied with the group of medicines found recorded in the note books, Ex. P46 and 47 maintained by the 5th

accused and recovered from his residence during the search made by Ramanathan (P.W. 20) and this would lead to the inescapable conclusion

that accused-5 had got complicity in preferring the false claims by the first accused.

Now, I shall examine the first charge, viz., the charge of criminal conspiracy. Before adverting to the evidence available on record relating to

this charge, I shall first of all mention briefly the legal principles relating to criminal conspiracy.

Section 120-A, I.P.C. defines ""Criminal Conspiracy"". This section contemplates two classes of conspiracy. The first class is that in which the

conspiracy is formed to commit an offence. An agreement to commit an offence may itself amount to criminal conspiracy even if no overt act

follows the said agreement. The second class is that in which the conspiracy is formed, in order to do an illegal act or an act which is not illegal by

illegal means.

The constituent elements of the offence of criminal conspiracy are: (i) an agreement between two or more persons, (ii) the act agreed to be

done being an illegal act, or a legal act by illegal means, and (iii) an overt act done in pursuance of the conspiracy. The Explanation annexed to this

section reads that it is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object.

Section 120-B, I.P.C. provides the punishment for the offence of criminal conspiracy. As pointed out, above, to substantiate the charge of

conspiracy punishable u/s 120-B, I.P.C., the prosecution must prove the agreement between two or more persons to do an unlawful act or a

lawful act by unlawful means. Such an agreement may be proved either by direct evidence or inferred from proved facts. But the inferences of fact

can; be drawn only when the circumstances are such as to be incapable of any other reasonable interpretation. The law requires specific proof

against each of the conspirators participating in a particular design to do a particular thing. No doubt, the very essence of conspiracy is that the

conspirators should plot and act in secret. Therefore, direct evidence of agreement is not always Available. Hence, it has to be established by the

evidence of acts and conduct which connect the crime with common design in which the conspirators have probably been all assigned with a part.

It is well-established, however, that the relevant facts and circumstances must be of such a compelling nature as must necessarily lead to a finding

that the accused charged is guilty of the offence. In other words, the inference of guilt must be irresistible and wholly incompatible with his

innocence.

Now, let me examine the evidence adduced on the side of the prosecution and see whether the prosecution has satisfactorily established this

charge, in the light of the above principles.

The prosecution in the present case attempts to substantiate the charge of criminal conspiracy mainly on the following evidence:

The Evidence of P. Ws. 7, 6, 8 and 9.

The entries found in Ex. P46 and 47, the note books seized from the house of accused-5 containing the names of the medicine as found in the

cash bills.

The recovery of certain ''A'' certificates (not used) signed by accused 2 to 4 in the names of several employees of the P and T Department,

seized from the house of A5.

The expert opinion of the Medical Officer P.W. 12.

The learned Public Prosecutor and the defence counsel have cited large number of authorities laying down the scope and the authority of the

High Court in interfering with the order of acquittal by the trial Court. I feel that it would suffice to refer to some of the decisions of the Supreme

Court laying down the cardinal rules in respect of appeals preferred against the order of acquittal. In Rajendra Prasad Vs. State of Bihar, ), it has

been held as follows:

When a trial court with full view of the witnesses, acquits an accused after disbelieving direct testimony it will be essential for the High Court in an

appeal against acquittal to clearly indicate firm and weighty grounds from the record for discarding the reasons of the trial Court in order to be able

to reach a contrary conclusion of guilt of the accused. The High Court should be able to point out in its judgment that the trial Court''s reasons are

palpably and unerringly shaky and its own reasons are demonstrably cogent .As a salutary rule of appreciation of evidence in an appeal against

acquittal it is not legally sufficient that it is just possible for the High Court to take a contrary view about the credibility of witnesses but it is

absolutely imperative that the High Court convincingly finds it well-nigh impossible for the trial Court to reject their testimony.

In Jimmy Homi Barucha v. State of Maharashtra AIR 1977 SC. 1213, it has been pointed out that:

If two views of the evidence are possible and the trial Court has taken a view favourable to the accused and acquitted him, the appellate Court

should not disturb the acquittal merely because it is inclined to take another view, if the view taken by the trial court is not unreasonable and

perverse.

In this connection I would like to refer to a decision in Ravinder Singh Vs. State of Haryana, ). In that case the Supreme Court observed that while

the prima facie appreciation of the recorded evidence is opposed even to a reasonable appraisement of the same, bearing in mind the relevant

point or points which are to be established by the evidence, there will be no option to the High Court in the interest of justice to step in and

interfere with the acquittal to do justice in the case. In yet another decision, namely, K. Gopal Reddy Vs. State of Andhra Pradesh, , it has been

pointed out that where ''he trial Court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a

view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration

of justice be brought to ridicule''''. (See also the decisions in Patel Jethabhai Chatur Vs. State of Gujarat, and Gulam Mahmood A. Malek Vs.

State of Gujarat, The Supreme Court in Ganesh Bhavan Patel and Another Vs. State of Maharashtra, observed as follows:

Where two reasonable conclusions can be drawn on the evidence on record, the High Court should, as a matter of judicial caution, refrain from

interfering with the order of acquittal recorded by the Court below. In other words, if the main grounds on which the court below has based its

order acquitting the accused are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should

not disturb the acquittal.

In a recent decision in Ajit Singh Thakur Singh and Another Vs. State of Gujarat, the Supreme Court after having referred, to the principle laid

down in Ganesh Bhavan Patel v. State of Maharashtra1, and the decision in Sheo Swarup and Others vs. King Emperor wherein the Privy

Council, declared that the High Court must give proper weight and consideration to ''''such matters as (I) the view of the trial Judge as to the

credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he

has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a

finding of fact arrived at by a Judge who had the advantage of seeing the witnesses"" has held that the High Court is not entitled to set aside the

order of acquittal giving importance to one aspect of evidence and failing to consider integrity of evidence.

Now bearing in mind the principles laid down by the Supreme Court in the abovesaid decisions, let me discuss the evidence available on

record both oral and documentary and scrutinise the same to find out whether the reasons given by the trial Court are palpably and unerringly

shaky and the view taken by it is unreasonable and perverse warranting an interference by this Court in the order of acquittal in the interest of

justice.

Before adverting to the contentions raised by the learned Public Prosecutor, 1 shall first of all take up the question as to whether accused 2 to

4, the medical officers, could be held to be ""public servants"" within the meaning of Section 21, I.P.C., while acting as Authorised Medical

Attendants.

In challenging the order of acquittal of the Medical Officers (Accused No. 2 to 4) of the charge u/s 5(2) read with Section 5(1)(d) of the Act,

the learned Public Prosecutor would strenuously contend that in as much as the Medical Officers had issued the essentiality certificates (A

certificates) without giving any treatment to the claimant (a Government servant) and had also counter-signed the cash bills knowing them to be

false so as to facilitate the claimant to make false claims for reimbursement of the amount from the Government of India, accused 2 to 4 should be

held liable to be punished u/s 5(2) read with Section 5(1)(d) of the Act since accused 2 to 4 have committed the offence of criminal misconduct by

corrupt or illegal means or by otherwise abusing their position as public servants and have obtained for themselves pecuniary advantage. According

to him, the Medical Officers who have issued the essentiality certificates and countersigned the cash bills, have been appointed under the Central

Services (Medical Attendance) Rules, 1944, as Authorised Medical Attendants to perform certain public duty and have been paid for such

services and therefore they would fall within the definition of ''public servant'' as contemplated under Clause 12 (a) of Section 21, I.P.C. in that the

Medical Officer, while acting as A.M.A. is remunerated by fee or commission for the performance of a public duty. In support of his contention, he

would draw the attention of this Court to two decisions, viz., (1) Dhaneshwar Narain Saxena Vs. The Delhi Administration, and (2) S.D. Marathe

Vs. Pandurang Narayan Joshi, Then the learned Public Prosecutor would, on two grounds, attempt to distinguish the decision in The State of

Gujarat Vs. Manshankar Prabhashankar Dwivedi and Vallabhdas Gordhandas Thakkar, . on which the learned Special Judge seems to have

placed much reliance for his conclusion that ""the accused doctor, though a public servant, cannot be held to have abused his position as public

servant, but only as private practitioner by issue of false certificates without treatment"". The two grounds raised by the learned Public Prosecutor in

this regard are:-(a) As the offence in Dwivedi''s case1 was committed before the present Clause 12 of Section 21 was amended by Act 40 of

1964, Clause 9, as it stood then, alone came up for interpretation in that case, and (b) as the present Clause 12 is wider in scope including persons

who are remunerated by way of fee or commission for one performance of any public duty, the A.M. As. also would fall, within the present

definition of Clause 12 of Section 21, I.P.C.

Before adverting to the arguments advanced by the learned Public Prosecutor, it would be relevant to notice Clause 9 of Section 21, as it

stood before the said section was amended by Act 40 of 1964 and the present Clause 12 of Section 21, I.P.C. A provision corresponding to the

present Sub-clause (a) of Clause 12 of Section 21 was contained in the latter part of Clause 9 of Section 21 before the amendment. For a ready

reference and easy understanding of the Section as it stands now, I would like 10 give below a comparative table of these two clauses:

Clause 9 of Clause 12 (a) of

Section 21 as Section 21 after

stood

before the 1964the 1964

amendment. amendment.

...and every Every Person (a)

officer in the in the service of

service or pay the Government

of the or remunerated

Government or by fees or

remunerated bycommission for

fees or the performance

commission for of any public duty

the performanceby the

of any public Government

duty.

(the underlining is mine)

Thus, it is seen from the above table that after the 1964 amendment to Clause 12, it is only a person in the service or pay of the Government or

remunerated by fees or commission for the performance of any public duty by the Government who would fall within the definition of ''Public

servant'', occurring in Sub-clause (a) of Clause 12. The position was different under the latter part of Clause 9, which portion I have extracted

above, as the words ''by the Government'' did not follow the words ''performance of any public duty'' although at every other appropriate place

and even in the present Clause 9, after the deletion of the last part thereof consequent upon the 1964 amendment, the word ''Government'' is to be

found. The present change made by the 1964 amendment makes it clear that it is not necessary that a person should be an officer in order to be a

public servant under Clause 12. In that sense, the scope of Clause 12 has become wider so as to include every person who fulfills the conditions

enumerated in this clause.

The Supreme Court, in The State of Ajmer (Now Rajasthan) Vs. Shivji Lal, while interpreting the last limb of Clause 9 as it stood before the

amendment, followed the decision in G.A. Monterio Vs. The State of Ajmer, wherein it had been held that the true test in order to determine

whether a person is an officer of the Government is to see (1) whether he is in the service or pay of the Government, and (2) whether he is

entrusted with the performance of any public duty, and that if both the requirements are satisfied, it matters the least what is the nature of his office

and whether the duties he is performing are of an exalted character or very humble indeed, and has pointed out that an officer in the service of the

Government and paid by the Government must also be entrusted with the performance of a public duty so as to bring him under the definition of

''public servant''.

Though the above-cited Shivji Lal''s case,1 was reconsidered in Dhaneshwar Narain Saxena Vs. The Delhi Administration, and the principle

laid down in the former case was overruled by holding that in order to bring a charge home to an accused person u/s 5 (l)(d) of the Prevention of

Corruption Act, it is not necessary that the public servant in question, while misconducting himself, should have done so in the discharge of his duty,

the interpretation given to the latter part of Clause 9 of the unamended Section 21, I.P.C., was not differed from. Therefore, while interpreting the

present Clause 12 (a) of Sectio 21, the meaning assigned by the Supreme Court thereto in Shivji Lal''s case1 can be safely relied upon and

followed.

I feel that it would be relevant at this juncture to refer to the decision in R.K. Dalmia Vs. Delhi Administration, . In that case, a Chartered

Accountant had been directed by the order of the Central Government to investigate into the affairs of an insurance company u/s 33(1) of the

Insurance Act and to report to the Government on the investigation made by him and if was held that he could not be said to be a public servant

though he was to get some remuneration for the work entrusted to him, because he neither held any office nor was he employed by the

Government.

The Supreme Court had an occasion in M. Karunanidhi Vs. Union of India and Another, to go into the definition of the words ''public servant''

as defined in Clause 12 of Section 21, I.P.C. While meeting the arguments advanced on behalf of the Appellant therein that the words ''in the,

service or pay of the Government clearly connote the relationship of master and servant a relationship which is completely beyond the ''concept of

the position of a Minister or a Chief Minister, the Supreme Court observed thus:

We however, agree that so far as the first part of Clause 12 (a) is concerned, viz., in the service of the Government, undoubtedly it signifies a

relationship of master and servant, whether the employer employs the employee on the basis of a salary or remuneration. But, we are of opinion

that so far as the second limb in the pay of the Government'' is concerned, that appears to be of a much wider amplitude so as to include within its

ambit even a public servant who may not be a regular employee receiving salary from his master.

Then, after referring to various dictionaries for the meaning of the words in the pay of the Supreme Court held that a careful analysis of the meaning

assigned to the word ''pay'' in the various dictionaries and the texts referred to, world clearly reveal that the expression in the pay'' connotes a

person getting salary, compensation, wages or any amount of money and that this by itself does not lead to the inference that a relationship of

master and servant must necessarily exist in all cases where a person is paid salary. Ultimately, the Supreme Court ruled that the holder of a public

office such as the Chief Minister is a public servant in respect of whom the Constitution provides for a salary from the Government Treasury so

long as he holds his office on account of the public service that he discharges. The essence of this decision is that when a person is in the service of

the Government, having the relationship of Master and Servant, or in the pay of the Government, discharging a public duty he will fall within the

definition of the first part of Sub-clause (a) of Clause 12 of Section 21, I.P.C.

When the first part of the present Clause 12 (a) is read in the light of the above position of law, it would be clear that every person would fall

within the definition contained in the first part of the Sub-clause if (1) he is (a), in the service of the Government or (b) in the pay of the

Government, and (2) he is entrusted with the performance of any public duty. If these requirements are satisfied, then he would fall within any one

of the two limbs of the first part of Sub-clause (a) of Clause 12.

42., The second part of Sub-clause (a), which forms the third limb to bring a person within the ambit of Clause 12 is that a person should be

remunerated by fee or commission for the performance of any public duty by the Government. The payment of salary is not an essential hall-mark

of a public servant under this requirement. What it requires is that (1) the person must be remunerated by a fee or commission, (2) he must be

remunerated for the performance of a public duty, and (3) he must be remunerated by the Government. Therefore, in order to bring a person

within the ambit of the latter part of Clause 12(a) the above three necessary conditions should be fully satisfied.

The authoritative judicial pronouncements in the last part of Clause 9, viz., ""Every officer in the service of pay of the Government or

remunerated by fees or commission for the performance of any public duty,"" were to the effect that unless a person had himself authority to act on

behalf of the Government, he would not be an officer falling within the definition of the above part. Therefore, the Parliament in its wisdom, thought

of substituting the expression ''every person"" in the place of the expression ""Every officer"", so as to widen the scope of the definition, while

incorporating the above clause in the present Clause 12(a). But, the Parliament has carefully added the words ''''by the Government"" after the

words ""performance of any public duty"" occurring in the above Clause 12 (a). If the expression ""by the Government"" had not been added, the

above-said last part of Clause 12 (a) would read as if every person remunerated by fee or commission for the performance of any public duty

would come within the definition. This would lead to the anomalous position, viz., that even persons who are remunerated by any person or entity

other than the Government, also would fall within the definition of ''public servant''. If such an interpretation is given, then every person who does

some kind of public duty and who is remunerated therefor (not necessarily by the Government) would fall within the definition. This position would

be quite against the general understanding of the term ''public servant''. That is why the Parliament has carefully and cautiously added the swords

''''by the Government"" so that only persons who are remunerated by the Government for the performance of a public duty rendered by them would

come within this definition. Thus, the most important ingredient in the third limb of Clause 12 (a) is the expression ""remunerated by the

Government"".

Now I shall examine the first contention of the learned Public Prosecutor and see whether the accused medical officers could be held to be

public servants while they were acting as an A.M. As. For this, first of all I shall refer to the decisions cited by him and see how far the said

decisions would lend support to the above contention.

In Dhaneshwar Narain Saxena Vs. The Delhi Administration, on the principles of which the learned Public Prosecutor has placed so much of

reliance Saxena, who was an Upper Division Clerk, was approached by one Ramanarayan, a fireman serving in the Delhi Fire Brigade, for

assistance in obtaining a licence for a double barrelled shot-gun which was in fact obtained. Saxena was paid certain amount and a promise was

made to pay him more. Ramanarayan had made a false declaration with regard to his salary in the application for the licence. His allegation was

that he had done so on the advice of Saxena. As Ramnarayan''s licence had been cancelled, it was alleged that he again approached Saxena who

demanded certain amount for helping him in the matter of restoration of licence. Ultimately, a trap was laid and Saxena was caught while the money

was being handed over to him. The main argument in that case centered on the question whether Saxena had committed any misconduct in the

discharge of his duties. The Supreme Court, overruling the principles on this point laid down by it in an earlier decision, viz., The The State of

Ajmer (Now Rajasthan) Vs. Shivji Lal, held that it was not necessary to constitute an offence u/s 5 (1) (d) of the Prevention of Corruption Act,

that the public servant must do something in connection with his own duty and thereby obtain any valuable thing or pecuniary advantage. It was

further observed:

It is equally wrong to say that if a public servant were to take money from a third person by corrupt or illegal means or otherwise abusing his

official position in order to corrupt some other public servant without there being any question of his misconducting himself in the discharge of his

own duty, he has not committed an offence u/s (1)(d). It is also erroneous to hold that the essence of an offence u/s 5 (2) read with Section 5(1)(d)

is that a public servant should do something in the discharge of his own duty and thereby obtain valuable thing or pecuniary advantage.

The learned Public Prosecutor, on the basis of the a hove decision, would contend that in as much as the Medical Officers in the present case, who

were admittedly in the service of the State Government bad been appointed as an A.M.A., under the Central Services (Medical Attendance) Rules

to perform a public duty, they should be held to be public servants and as they have obtained a pecuniary advantage by way of fees or commission

from the Government through the claimant for the public duty performed by them in respect of a Government servant belonging to Central

Services, abusing their official position they should be held to have committed an offence punishable u/s 5 (2) read with Section 5 (1)(d) of the Act.

The learned Public Prosecutor next relied on the principles laid down by a Division Bench of the Bombay High Court in Marathe''s case 1938

Bombay 419 wherein it had been held that a crown servant, within the meaning of Section 270 of the Government of India Act, 1935, whose

services were lent to the local bodies, could quite properly be said to be employed in connection with the affairs of the province as opposed to the

affairs of the Central Government, and wherein the Court had repelled the contention that the medical officer in charge of a dispensary in that case

was not a servant of the crown. The contention of the accused officer therein was that his duty was not to give a certificate to the police. The

Bench rejecting that contention, held that the medical officer having been employed in the affairs of the Province as a Civil servant, was obviously

bound to obey the rules made for the guidance of such officer and it was his duty to obey them. On the basis of the above decision, it was

submitted that the A.M. As., in the present case, who were in the service of the State Government were obliged to obey the Central Services

(Medical Attendance) Rules, and the non-compliance or violation of the rules would certainly make them liable to be punished u/s 5(2) read with

Section 5 (1)(d) of the Act.

The decision in Dhaneshwar Narain Saxena Vs. The Delhi Administration, was considered by the Supreme Court in The State of Gujarat Vs.

Manshankar Prabhashankar Dwivedi and Vallabhdas Gordhandas Thakkar, . After referring to the principles laid down in that case, the Supreme

Court distinguished the same by observing as follows:

No such case was argued or decided in that case whether for the commission of an offence under S.S (l)(d), abuse of position as a public servant

was of the essence or the essential ingredient of the offence. It is noteworthy that the High Court had, on the evidence produced by the

prosecution, come to the conclusion that Saxena, taking advantage of his own position as an employee in the Chief Commissioner''s office and

Ramnarain''s ignorance and anxiety to get the licence, had induced him to part with the money on the promise that he would get the licence

restored. It appears, therefore, that it was in that background that the decision of this Court was given.

The principles laid down in Saxena''s case,'' cannot be availed of by the prosecution in this case, for the reason that the Medical Officers in this

case, while acting as A.M. As., cannot be held to have committed the criminal misconduct in their capacity as public servants as the services

rendered by a medical officer in his capacity as an A.M.A., would not fall within the strict interpretation of Clause 12 of Section 21, I.P.C., for the

reasons to be stated below. The dictum laid down by the Bombay High Court in S.D. Marathe Vs. Pandurang Narayan Joshi, is quite inapplicable

to the present case, because in that case the services of the medical officer, who was in the employ of the province, were lent to the local bodies

and still he was being paid by the Government although a contribution was recovered from the local body concerned and was under the control of

the Department of Medical Services of the province. It was only under these circumstances, the Division Bench held that the word ''duty''

occurring in Section 270 of the Government of India Act was not necessarily confined to legal duty add that civil servants who were medical

officers were obviously bound to obey the rules made for the guidance of such officers and it was their duty to obey them.

Thus, the two decisions relied upon by the learned Public Prosecutor cannot be of much assistance in interpreting the definition of the words

''public servant'' occurring in Clause 12(a) of Section 21, I.P.C.

Admittedly, the appointment of the medical officer concerned in this case as an A.M.A., is not a statutory appointment and he is appointed

only by virtue of the rules. Rule 2 (a) defines the term -authorised medical attendant."" It is not in dispute that even private registered medical

practitioners are appointed as authorised medical attendants,, in respect of a class or classes of the Central Government Employees. It is borne out

from Swamys'' Compilation of the Medical Attendance Rules corrected up to first January, 1967, marked as Ex. P that in cases which are

definitely not prolonged, treatment prescribed may be taken at the consulting room of the authorised medical attendant or at the residence of the

patient, spread over a period not exceeding 10 days. The medical attendance at the consulting room of the A.M.A. should be restricted to four

consultations irrespective of the fact whether consultation fee is charged for or not for any such consultation. The reimbursement of consultation

fees at the prescribed rates should be restricted to the first four heads/visits, at the rate of one consultation/visit a day, a repeat prescription being

treated as consultation irrespective of the fact whether consultation fees are charged or not for such a prescription. Cost of admissible medicines

prescribed during this consultation only is reimbursable. At the time of claiming refund of expenses incurred on this account, the Government

servant concerned should produce a certificate from the authorised medical attendant when such examinations are considered necessary by him.

In the present case, the medical officers were in the employ of the State Government. Orders are issued under the above said Rules from time

to time laying down the terms and conditions under which a medical officer is appointed for a specified period, one of the conditions being that, the

medical officer could charge consultation and injection fees at the rates specified in Annexure I to the Rules. In the ''A'' Certificate, the medical

officer, in respect of the servants who were not admitted in the hospital for treatment and who have been treated by him, has to certify that he

charged and received certain amount for consultation either at his consulting room or at the residence of the patient and that he has charged and

received so much of amount as specified for the administering of the injections and that he prescribed the medicines in this connection which were

essential for the recovery or prevention of serious deterioration in the condition of the patient. Further, he has also to countersign the cash bills so

as to enable the Government servant, the claimant, to get the expenses incurred by him reimbursed. Rule 3(2) states that where a Government

servant is entitled under Sub-rule (1) to receive free of charge medical attendance, any amount paid by him on account of such attendance shall, on

production of a certificate in writing by the authorised medical attendant in this behalf, be reimbursed to him by the Central Government. This

makes it clear that what the claimant had paid to the A.M.A., is reimbursed by the Government to the claimant to the extent permitted under the

Rules. Under these rules, an A.M.A. may attend on a Government servant without receiving any fee. In that case, the claimant could not get any

reimbursement. Similarly, the claimant also may or may not claim reimbursement from the Government, because it is left open to his discretion.

When it is only a privilege extended to the Government employee who alone is reimbursed by the Government towards the expenses that he had

made in getting the treatment under an A.M A., it cannot be said that the A.M.A. is remunerated by fees or commission for the performance of his

public duty by the Government. When the latter part of Clause 12(a), in plain and unambiguous form states that the remuneration is to be paid

either as fee or as commission for the performance of any public duty by the Government, can it be said that an A.M.A., who charges and receives

the amount for the service rendered by him, is remunerated by the Government? My answer would be that it cannot be said that he is remunerated

by the Government.

For the above-staged reasons, I hold that none of the ingredients mentioned in any one of the limbs of Clause 12(a) of Section 21, viz., (1) the

relationship of master and servant between the Government and the person concerned so as to bring him in the service of the Government. (2) the

person being in the pay of the Government, and (3) the person being remunerated by fee or commission for the performance of the public duty, by

the Government are satisfied in the case of an A M.A., and therefore, accused 2 to 4 herein cannot be held to be public servants within the

definition of the term under Clause 12(a) of Section 21, I.P.C. If an A.M.A. in the discharge of his duty, creates false documents and plays

fraudulent deception, and thereby abets or aids the Government servant to make false claim for reimbursement, he would be making himself liable

to be punished for the commission of such specific offences under the I.P.C., like any other ordinary offender; but he would not make himself liable

to be punished under the provisions of the Special Act, viz, the Prevention of Corruption Act, while he acts in the capacity as an A.M.A., because

he cannot be considered to be a public servant as defined in Clause 12 (a) of Section 21, I.P.C.

Now, I shall pass on to the last contention raised by the learned Public Prosecutor, viz., that the principles laid down in Dwivedi''s case1

cannot be made applicable to the facts of the present casein view of the changes made to Clauses 9 and 12 by Act 40 of 1964.

In The State of Gujarat Vs. Manshankar Prabhashankar Dwivedi and Vallabhdas Gordhandas Thakkar, the Respondent Dwivedi was at the

material time a Senior lecturer in a Government College. He was appointed as a University Examiner under the Gujarat University Act of 1949,

While he was acting as an Examiner, he was alleged to have accepted a gratification of Rs. 500 other than legal remuneration for showing some

favour to a candidate by giving him more marks than be deserved in the examination. Dwivedi was charged with the commission of the offence u/s

161, I.P.C. and Section 5(2) read with Section 5 (1)(d) of the Prevention of Corruption Act. The trial Judge feel him guilty. The High Court on an

appeal preferred by the convicted person, though found that the prosecution had proved the case against Dwivedi and. another on the merits,

acquitted him for the reasons mentioned in the judgment and holding that the last part of Clause 9, as it stood before the 1964 amendment, would

not cover the case of Dwivedi. Aggrieved by the judgment of the High Court, the State preferred an appeal. It was only under these

circumstances, the Supreme Court examined the ambit and scope of the latter part of Clause 9 as it stood before the amendment and incidentally

dismissed the scope of the amended Clause 2 of Section 21, I.P.C. Ultimately, the Supreme Court, alter discussing the scope of the relevant

clauses, relying on a decision in R.K. Dalmia Vs. Delhi Administration, held as follows:

On that view it is not possible to put the case of a university examiner in a different category. A university examiner cannot be considered to hold

an office in the sense in which that word has been understood and employed in the 9th Clause. It is clear from the provisions of the Gujarat

University Act, 1949, that there is no such condition that only that person can be appointed as an examiner who is the holder of an office,"" and

ultimately concluded:

As Dwivedi was not a public servant who was acting as an examiner, it could not be said that if it had been an abuse by him of his position as a

public servant and that it was only the case of the prosecution that he had been ""guilty of any abuse of the position as a lecturer of the Government

College.

The effect of the amendment of Clause 9 and 12 is that under Clause 12 (a), it is not necessary that a person, in order to come within the

definition of Clause 12 (a), should be an officer. None the less he must be shown either to be in the service, of the Government or in the. pay of the

Government or to be. remunerated by fee or commission, for the performance of any public duty, by the Government. To that, extent, Clause 12

(a) is wider so (sic) include within the definition, even persons who are not officers but the condition what that person, to come under the third limb

should be remunerated by way of fee of commissioner for the performance of a public duty by the Government which has become necessary for

the amended sections. Therefore, when this shown that the accused 2 to 4 while acting 84 A.M.As., were not in any way remunerated by the

Government, they would not fall, within the definition contained in Clause 12 (a). For these reasons, I hold that the present charge of law does not

really affect the principles laid down in Dwivedi''s case in applying the same to the case of the accused-doctor who is not in any way remunerated

by the Government. Of course, the Special Judge has not couched his conclusion quite correctly when he observed that ""the accused doctor,

though a public servant, cannot be said to have abused, his position as public servant but only as private practitioner...."" But from the discussion he

has made in the judgment, it is clear that what he has meant is that the accused doctor, while acting as an A.M.A., was not a public servant. For

the above reasons, the contention raised by the learned Public Prosecutor fails.

In view of the above finding that accused 2 to 4 are not public servants, their acquittal under the latter part of charge No. 1 u/s 5(2) read with

Section 5(1)(d) of the Act and their acquittal under charges 4, 7, 10, 13, 16, 19, 22, and 25 which are also under the, provisions of the Act, are

not liable to be interfered with.

Therefore, we are left with the finding of the Court below acquitting accused 1 to 5 under charge 1 and acquitting accused 1 under charges 2,

5, 8, 11, 14, 17, 20 and 23 of the offence punishable u/s 420, I.P.C, under each of the charges and the acquittal of the first accused of charges 3,

6, 9, 12, 15, 18, 21 and 24 u/s 5 (2) read with Section 5 (1) (d) of the Act.

Charge No. 1: So far as accused No. 5 is concerned, the learned Public Prosecutor represents that accused No. 5 (X. Subbiah) bad died a

year ago, i.e., after the appeal had been filed in this Court. In fact, he has filed a memo to that effect in Criminal Appeal. No. 341/76 in which this

K. Subbiah was an accused arrayed as accused 3 therein. Accordingly, this appeal preferred by the State abates so far as accused No. 5 is

concerned.

in view of my finding the accused Nos. 2 to 4 while acting as Authorised Medical Attendants, cannot be held to be public servants, their

acquittal under the latter part of charge No. 1 under the provisions of the Act is (sic) not liable to be interfered with.

The remaining order of acquittal under challenge is the order acquitting accused 1 of the offence punishable u/s 120-B read with Section 420,

I.P.C, and u/s 5 (2) read with 5 (1) (d) of the Act and acquitting accused 2 to 4 of the offence punishable u/s 120-B, I.P.C, read with Section

420, I.P.C.

The prosecution is attempting to establish the conspiracy through the approver P.W.7 as well as P. Ws. 6, 8 and 9. Of the witnesses, P.W. 7,

was running a medical shop known as Rani Medical Mart at Madurai. His medical shop was searched by P.W. 21 in the presence of P.W. 15 on

the strength of a search warrant and in the course of the March, Exs. P61 and P62 were seized under the search-list Ex. P55. A copy of the

search list was also given to Ramasubramaniam, brother of P.W. 7.

P.W. 20 searched the house of accused 5 and received Exs. P46, P47, P48 series, P53 series P69 series, P70 series, P71 to P74 series, D1

series P78 to P106 series, P107 to P112 series, P113 series to P119 series, P120, P121, P122, P123, P124, P125, and P127 to P134 as

detailed in the search list Ex. P77, copy of which was also given to the said accused. He also recovered a cash of Rs. 8,436 from the house of A5.

P.W. 20 searched the house of accused 3 on 11th December, 1967 in the presence of P.W. 14 and in the course of the search, he recovered

Exs. P137, P138, P139, and P140. All these documents were seized under the search list Ex. P136. The copy of the search list was given to the

accused. Thereafter, all the articles were produced before the Sub Divisional Magistrate, Poonamallee.

It is pertinent to note that ''A'' certificates admittedly signed by A3 and marked as Ex. P50 series, P78 series, P79 series, P80 series, P8S

series and P106 series issued in the names of several employees of the P and T Department, whose names are found in the notebook kept by A5,

were marked as Exs.P46 and P47. The recovery of these documents on 28th November, 1967 positively indicates that these documents had been

prepared obviously for the purpose of facilitating the employees of the P and T. Department to make false claims of reimbursement with the help of

A5. There were also blank prescriptions admittedly signed by the medical officer A3, which are marked as Ex. P 111 series. This is yet another

factor indicating that A3 was very much connected with the scheme of the commission of the large scale cheating.

So far as A2 is concerned, only the ''A'' certificates issued by him, viz., Exs. P69 and P70 were recovered from the house of A-5. These two

documents were issued in favour of the another employee of the P and T Department. In other words, these documents have not been used.

So far as A4 Is concerned, he had admittedly issued the ''A'' certificates Exs. P6 and P 11 on the basis of which the claims had been already

made and the reimbursement amounts received by A1. From the house of A5, no other ''A'' certificate signed by A4 had been seized. It has to be

noted that no blank prescriptions Sighed either by A2 or A4 bad been seized from the house of A5 as in the case of A3. The only incriminating

document as against A4 is the money order receipt Ex. P125, and the money order acknowledgement Ex. P68 which contains the signature of A4.

We will discuss the evidence appearing against each of the medical officers, viz., Exs. A2 to A4 at the appropriate place.

However, the complicity of A3 with A1 and A5 in the matter of issuing false essentiality certificates in order to facilitate the employees of the P

and T Department to make false claims and thereby chest the Central Government is well established by unimpeachable and voluminous

documentary evidence.

In fact, the learned trial Judge himself, in paragraph 17 of his judgment, has observed as follows:

Therefore, whatever arrangement is entered into between the tout on the one hand and the medical shop-keepers and the medical officers on the

other hand, towards the common design of the tout and the Government employees the, scheme of all these participants in this arrangement is only

to defraud the Government of India, viz., the Superintendent. P and T Department, and therefore,'' they constitute only an integral part of one and

same conspiracy and not several conspiracies unrelated to each other as contended by the counsel for the accused.

Commenting, upon the documents sighed by A3 and seized from die possession of accused No. 5 the learned trial Judge, in paragraph 42 of his

judgment, has observed as follows:

A-3, accused Subramaniam, could not account for possession of blank, but signed prescription sheets, Exs. P111 series, with A5. Obviously they

are intended to be issued by A5.

P.Ws. 6, 8 and 9 speak about the filling up of ''A'' certificates under the instructions of accused 5, that is to say, that they filled up the blank ''A''

certificates left with accused 5 but signed by accused 3. The approver P.W. 7 also speaks to the fact as to how the documents were prepared and

how the ''A'' certificates were obtained from fee medical Officers.

Now, I shall deal with the case of the medical officers individually. So far as accused 2 and 4 are concerned, they stand on a different footing.

A2''s transactions reduce to four claims as per charges 4, 7 10 and 13. A4''s transactions relate to, charges 19 and 19. But there is no evidence

that either the house or the clinic of A2 or A4 has been searched by any of the investigating officers, nor any incriminating document was seized

Though voluminous papers have been seized of and the house of A5, no blank prescription (sic) any post-dated ''A'' certificates had been (sic)

from the possession of A5 purported to have been wished and signed by A2 or A4. This is the reason why the learned trial Judge himself in

paragraph 42 of his judgment has entitled A2 and A4 from his observation which has been extracted above. Further the evidence adduced as

against A2 andA4 is very integer and weak.

One circumstance creating same suspicion against A4 is the receipt of a sum of a Rs. 100 purported to have been (sic) by A3 through money

order which fact is passed by Ex. P69, the money order acknowledgement in which A4 had Signed, and Ex. P105 the money order receipt. Mr.

Srigamulu, the learned Counsel appearing on behalf of A4 would attempt to give an explanation starting that the mere fact that the amount has been

received by A4 would not lead to the compatible and inescapable conclusion that (sic) received that amount only by way of commission for issuing

false A certificates. According to him, it might have been towards some amount payable to her by one Subbiah to the treatment given to him. No

doubt, the explanation is not palatable. However, as the evidence adduced through the witnesses is not clinching, it would not be safe to have any

adverse inference against A4 only against the circumstances indicated above (sic) when No. ''A'' certificate issued by A 4 had been seized from the

house of A5. Hence, this Court while sitting in an appeal against the order of acquittal, is not inclined to interfere with the order of acquittal of A2

and A4.

The totality of the evidence let in by the witnesses against accused 1, 3 and 5 really commends acceptance at the hands of this Court, and their

evidence cannot be easily brushed aside. The reasons given by the Court below for rejecting the testimony of the witnesses are not acceptable. On

the other hand, the learned Special Judge though at once place would come to the conclusion that these documents prove a conspiracy among the

accused, in yet another place would state for fanciful reasons that their evidence is not creditworthy. On a careful and meticulous examination of

these witnesses in conjunction with the unimpeachable documentary evidence, I, without any compunction, hold that their evidence is worthy of

acceptance, which evidence is corroborated by the voluminous documentary evidence. In fact, the evidence of the approvers satisfies the two

tests, viz., reliability and acceptability and their evidence is amply corroborated by independent witnesses as well as the documentary evidence.

Now, coming to the case of accused 1, it is stated that he made only genuine claims. To disprove and, belie his case, the prosecution has

examined P.W. 12 who has given his expert opinion under Ex. P16.

It is pertinent to note that A5, who has no connection whatsoever with the reimbursement claims was found to have been in possession of a

number of ''A'' certificates, blank as well as filled up prescription slips containing the signature of A3 together with the cash bills; His notebook also

contains the names of all the employees inclusive of A4. This positively indicates that Al, A3 and AS were parties to the conspiracy.

It is not in dispute that accused 1 is a public servant and he not only had along with the other accused, cheated the Government by presenting

false reimbursement claims, but also abused his position as public servant by corrupt or illegal means or otherwise, by'' submitting false

reimbursement claims for alleged treatment of himself and his sons/daughters, as detailed in each one of the charges levelled against him, and

thereby committed the offence under the provisions of the Act.

For all the reasons stated above, I am of the view that the. finding of the trial Judge that the prosecution has not proved the charge of

conspiracy against the accused 3 and 5 cannot he sustained. In fact, the judgment of the court below is perverse and there are compelling reasons,

warranting interference by this Court with the order of acquittal of A1 and A3, which is not based on sound reasoning.

When the evidence which I have extracted above is tested in the light of the observations of the Supreme Court while dealing with the scope of

the powers of this Court (High Court) while sitting in an appeal against acquittal. I am of the view that the evidence in this case satisfies the test laid

down by the Supreme Court in its various decisions.

In the result, I set aside the order of acquittal passed by the learned trial Judge acquitting accused 1 of the first charge and instead convict

accused 1 u/s 120B read with Section 42J, I.P.C, and u/s 5(2) read with Section 5 (1) (d) of the Act, and convict accused. 3 to only u/s 120B

read with Section 420, I.P.C. Since accused No. 5 is dead, the appeal against his acquittal abates. So far as A2 and A4 are concerned, I have

already confirmed the order of acquittal passed by the trial Court.

So far as the other charges as against accused 1, viz., charges 2, 5, 8, 11, 14, 17, 20 and 23 for an offence u/s 420, I.P.C, are concerned, the

prosecution has established the case against him through the claim petitions, ''A'' Certificates and cash bills.

These are the documents'' which prove charges Nos. 2, 6, 9, 12, 15, 18, 21 and 24 for the offence u/s 5(2) read with Section 5 (1) (d) of the

Act as against accused 1.

Hence, for the discussions of the evidence made above I hold that all these charges as against accused 1 are proved

In the result, accused No. 1 is convicted under Changes 1 2, 3, 5, 6, 8, 9, 11, 12, 14, 15, 17, 18, 20, 21, 23 and 24.

Before coming to the question of sentence, it is represented by Mr. G. Krishnan, learned Counsel appearing on behalf of the accused 1, and

Mr. Satyendran appearing for accused 3 that this Court may be pleased to take a lenient view having regard to the circumstances that these

accused have undergone the ordeal of the proceedings for well over a period of 15 years and that these accused have unfortunately become

victims at the hands of accused No. 5 whose ingenious brain was behind the whole scheme and who was obtaining pecuniary benefits by way of

commission, It is further submitted by them that all these persons are all heads of their respective families, having marriageable daughters and sons.

Having regard to the above submission made by the learned Counsel and the fact that only'' small amounts are involved under the individual

charges, while convicting accused 1 under charge 1 u/s 420 read with Section 120-B-, I.P.C, and Section 5(2) read with Section 5 (1) (d)of the

Act, I sentence him to undergo imprisonment till the rising of the Court.

As accused 3 is convicted only under the first part of charge 1, viz., u/s 120-B read with Section 420, I.P.C, and as there is no legal bar for

invoking the benevolent (provisions of the Probation of Offenders Act, I admonish accused 3 u/s 3 of the Probation of Offenders Act.

As I am now imposing the sentence of imprisonment till the rising of this Court as against accused 1 under charge No. 1; I am not awarding

any separate sentence against him for his convictions under the other charges. The first accused is directed to appear before the First Additional

Special Judges Madurai (I Additional Sessions Judge, Madurai) and receive the sentence of imprisonment till the rising of the Court on receipt of

notice from the said Special Judge.

84, Learned Counsel appearing for accused 3 has made a special request that this Court be pleased to make an observation that on account of the

order admonishing accused 3 u/s 3 of the Probation of the Offenders Act, they shall not suffer any disqualification attaching to their convictions as

contemplated u/s 12 of the Probation of Offenders Act

Now, coming to the submission made by the learned Counsel for accused 3. I feel that it is not necessary to record any observation as

requested since Section 12 of the Prohibition of Offenders Act itself is very clear in its terms. Section 12 of the Act coming under the caption.

''''Removal of disqualification attaching to Conviction"" enacts:

Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of Section 3 or

Section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.

This is subject to a proviso which reads:

Provided that nothing in this section shall apply to a person who after his release u/s 4, is subsequently sentenced for the original offence.

In the present case, the proviso will not come into operation

The impact of this provision of the Probation of Offenders Act was considered Rajagopala Ayyengar, J., as be then was, in a decision in R.

Kumaraswami Aiyar Vs. The Commissioner, Municipal Council and Another, In that case, the learned Judge has observed as follows:

If for instance the Petitioner is dismissed from service because he has been found guilty of an offence involving moral turpitude it cannot be said that

he is suffering from a disqualification attaching to a conviction. What Section 12-A has in view is an automatic disqualification flowing, from a

conviction and not-an obliteration of the misconduct sf the accused. In my judgment the possibility of disciplinary proceedings being taken against a

person found guilty is not disqualification attaching to the conviction within the meaning ot Section 12-A of the Probation of Offenders Act.

The same view was endorsed by a Full Bench of the Punjab and Haryana High Court in Bikram Dass Vs. The Financial Commissioner, Revenue,

Punjab, Chandigarh and Others, , The Full Bench observed as follows:

What Section 12 removes is a disqualification attaching to a conviction. In my opinion, neither liability to be departmentally punished for

misconduct is a disqualification, nor it attaches to the conviction. ''Disqualification'' in its ordinary dictionary meaning connotes something that

disqualifies or incapacitates. To disqualify a person tor a particular purpose means to deprive that, person of the qualification or conditions

necessary to make him fit for that purpose.

X X X

The other reason why Section 12 of the. Apt does not help the Petitioner is that the departmental proceedings are not attached to the conviction of

the offence. Departmental proceedings are not -taken because the man has been convicted. The proceedings are. directed against the original

misconduct of the Government servant... No part of Section 12 is intended to exonerate a Government servant of his liability to departmental

Punishment for misconduct This provision does not afford immunity against disciplinary proceedings for the original misconduct. What forms basis

of the punishment is the misconduct and not the conviction.

Subsequently, the Supreme Court had occasion to consider the decisions of the various Courts inclusive of the judgment of this Court referred

to above,, in The Divisional Personnel Officer, Southern Railway and Another Vs. T.R. Chellappan and Others, Finding itself in complete

agreement with the decision rendered by this Court in R. Kumaraswami Aiyar Vs. The Commissioner, Municipal Council and Another, , the

Supreme Court finally held that this matter was considered by a number of High Courts, and there is a consensus of judicial opinion on this point

that Section 12 of the the-Act is not an automatic disqualification attaching to the conviction itself. In view of the above discussion, I hold that the

(Accused No. 3) cannot be said to be suffering from a disqualification attaching to the conviction u/s 120B read with Section 420, I.P.C.

The acquittal of accused 2 and, 4 is confirmed. The appeal is partly allowed as indicated above.