IN THE COURT OF JAGDEEP JAIN,SPECIAL JUDGE, CBI COURT, CHANDIGARH.

CORRUPTION CASE NO:-25. COMPUTER I.D. NO:36014R0034322006. DATE OF INSTITUTION:02.03.2006 DATE OF DECISION:02.03.2009 Central Bureau of Investigation Versus Dr. R.S. Dhaliwal, son of Joginder Singh Dhaliwal, resident of House No.58, Sector 24-A, Chandigarh. .....Accused FIR No.RC No.18 (A) 03 dated 29.5.2003, (Chargesheet No.I)Under Sections 120-B, 420, 467, 468 and 471 of the Indian Penal Code and under Section 13 (1) (d) of the Prevention of Corruption Act,1988. P.S. CBI, SPE, Chandigarh. Present:Shri R.L. Negi,Senior Public Prosecutor for C.B.I. Accused R.S. Dhaliwal on bail being assisted by Shri Matwinder Singh, Advocate.

JUDGMENT The case of the prosecution is that Dr.

R.S.Dhaliwal joined the Department of cardio- Vascular &

Thoracic Surgery (for short CVTS) in 1976. On promotion, he became Head of the Department in 1998. The Department of CVTS deals with open heart surgery,

closed heart surgery and lung surgery etc. Open heart surgery is performed by a doctor of the rank of Associate Professor or above with the assistance of Senior Resident, Anesthesia and Nursing Staff. During the period

1994-2001, Dr. R.S.Dhaliwal entered into conspiracy with Surinder Singh Uppal. In pursuance to the conspiracy, Dr. R.S.Dhaliwal would personally take cash/demand drafts from the patients or their wards towards payment for artificial heart valve/s. He would pass on the payment to Surinder Singh Uppal who used to supply artificial heart valves in the name of three non-existing firms/concerns namely M/s. High Tech. Surgical Company, 9/60, Rajauri Garden, New Delhi, Branch office Chandigarh; M/s. Health Care Instruments Company, 9/54, D.B.Gupta Marg, Karol Bagh, New Delhi and M/s. Alfa Surgical Company, 2018, Sector 15, Chandigarh. In some cases, Dr. R.S.Dhaliwal used to refer the patients directly to Surinder Singh Uppal. The latter would receive the cash/demand draft

from the patient/his ward and supply the artificial heart

valve directly to Dr. R.S.Dhaliwal. In either situation, Surinder Singh Uppal would charge exorbitant rates and would share the profits, thus made in the ratio of 60% to 70% for Dr. R.S.Dhaliwal and 30% to 40% for himself. 2. The two firms with Delhi address were found to

be non-existent at the given addresses. 3. During the period aforementioned, Dr.

R.S.Dhaliwal conducted 324 open heart operations as operating surgeon. Out of them, 38 cases were short

listed and investigated in detail. It was found that in 14 cases there was involvement of Paul Medical Hall and Dr. R.S.Dhaliwal while in 24 cases, Surinder Singh Uppal was involved with Dr.R.S.Dhaliwal. The cases involving Dr. R.S. Dhaliwal and Surinder Singh Uppal were sagregated. It was found that in most of the caseses there were marks of erasings and overwritings with respect to the brand name and serial number of the artificial heart valves in the records. 4. It was found that Surinder Singh Uppal had been

maintaining a personal diary-cum ledger recording a date-wise details viz. name of the patient, size and cost

of the valve/s supplied, profit made, mode of payment and share given to Dr. R.S. Dhaliwal.

5.

The Following are the instances in which the

malpractices were noticed: PATIENT: SAWROOP SINGH The patient was operated on

24.04.1995. A sum of Rs.26,000/- as price of Machhi valve was received through draft by Dr. R.S.Dhaliwal. The draft was encashed by

Surinder Singh Uppal. He procured the valve for Rs.16,000/-. After deducting the other expenses, R.S.Dhaliwal he on paid Rs.4,200/to Dr. kept

28.03.1995

and

Rs.4,200/- for himself.

PATIENT: BABLI The patient was operated on

01.04.1999 and two valves were replaced. One valve was purchased from Paul Medical Hall for Rs.45,000/-. For the other valve, the ward of the patient was asked to make payment of

Rs.33,165/- through bank draft in favour of M/ s. Health Care Instruments Company. Surinder Singh Uppal procured the valve for

Rs.22,500/-. Out of profits, he paid Rs.5,000/to Dr. R.S.Dhaliwal and kept Rs.5,665/- for himself. PATIENT: SHAUKAT ALI The 01.05.2001. patient On was the operated of on Dr.

direction

R.S.Dhaliwal, the ward of the patient handed over Rs.32,500/- to Jaspinder Singh, agent of Northern Remedies, SCO No.98, Sector 47, Chandigarh. Surinder Singh Uppal procured TTK Chhitra valve for Rs.13,000/-. Out of profits, Rs.9,750/were paid to Dr.

R.S.Dhaliwal.

PATIENT: SANJOGITA The grant of Rs.90,000/- was received in the name of the patient. Vide letter dated

21.05.1996, Dr. R.S.Dhaliwal requested the Medical Superintendent, PGI to issue draft for

Rs.37,165/-

in favour

of

M/s. High Tech

Surgical company towards the cost of valve to be replaced. Since the official concerned was on leave, the ward of the patient had to spend Rs.35,165/-. This amount was later on

reimbursed to him by PGI on the written request duly authenticated by Dr.

R.S.Dhaliwal. Surinder Singh Uppal issued fake and false receipt worth Rs.35,165/- towards the cost of Starr Edwards mitral heart valve. He had purchased the valve for Rs.23,165/and out of the profits he gave Rs.6,000/- to Dr. R.S.Dhaliwal.

PATIENT: DARSHANA DEVI At the instance of Dr. R.S.Dhaliwal, the wards of the patient handed over a draft for Rs.26,000/- in favour of M/s. Alfa Surgical company to him and accordingly on

21.11.1994 one Machhi valve was implanted. Surinder Singh Uppal procured the valve for Rs.15,000/-. Out of profits, he gave

Rs.5,000/- in cash to Dr. R.S.Dhaliwal on 23.11.1994.

PATIENT: SURINDER KAUR At the instance of Dr. R.S.Dhaliwal, the husband of the patient handed over two bank drafts for Rs.33,165/- each in favour of M/s. Health Care Instruments Company to him towards the cost handed of two valves. drafts Dr. to was Starr

R.S.Dhaliwal Surinder operated

over

the

Singh on

Uppal.

The and

patient two

26.11.1998

Edwards valves were shown to have been implanted. However, the entries in the open

heart register revealed that the valves other than those mentioned in the bill were

implanted. Out of The two valves which were shown to have been supplied for this patient, one was implanted in the heart of Kashmiri Lal on 08.12.1998 and the second was implanted in the heart of Om Parkash on 18.02.1999. Surinder Kaur died within 48 hours of the

operation. Surinder Singh Uppal procured the valves for Rs.49,000/- and out of profits, he gave Rs.8,665/to Dr. R.S.Dhaliwal on

26.11.1998.

PATIENT: GULZAR On the direction of Dr. R.S.Dhaliwal, the father of the patient handed over Rs.26,000/to him towards the cost of heart valve. Surinder Singh Uppal purchased the valve for Rs.15,000/-. Out of the profits, he gave

Rs.5,000/- to Dr. R.S.Dhaliwal and also issued the bill for Rs.20,000/-. However, before

handing over the bill to father of the patient, Dr. R.S.Dhaliwal changed the figure to

Rs.26,000/-. He also made addition in the bill by mentioning that the valve supplied was Starr Edwards, whereas the valve actually implanted was Machhi.

PATIENT: SHARMILA Dr. R.S.Dhaliwal asked the patient to

make payment of Rs.31,000/- through bank draft in favour of M/s. Alfa Surgical Company. Surinder Singh Uppal procured the valve for Rs.15,000/and out of profits, he paid

Rs.5,000/- to Dr. R.S.Dhaliwal PATIENT: DOLA RAM As the patient was poor, the Government of Himachal Pradesh deposited Rs.95,000/with PGI for his treatment. On 04.05.1996, Dr. R.S.Dhaliwal requested Medical

Superintendent, PGI for issuance of draft for Rs.37,165/in favour of M/s. High Tech

Surgical Company. However, the patient was discharged on 29.05.1996 without operation. Thereafter, Dr. R.S.Dhaliwal submitted duly verified invoice-cum-bill for Rs.37,165/- with the Office of Medical Superintendent on the strength of which a cheque dated 03.09.1996 for equivalent amount was issued in the name of M/s. High Tech Surgical Company. The cheque was received on 08.10.1996 by

Satnam Kaur, Clerk-cum-Typist in the office of

Dr. R.S.Dhaliwal. She handed over the cheuqe to Dr. R.S.Dhaliwal who handed over the cheque to Surinder Singh Uppal. After

deducting Rs.20,500/- towards the cost of valve, Surinder Singh Uppal paid Rs.7,000/- to Dr. R.S.Dhaliwal. Subsequently, the file was put up before Dr. R.S.Dhaliwal for his

comments. Vide noting dated 26.02.1997, he recommended refund of the balance to the funding agency. Consequently, the remaining amount was refunded to the funding agency on 14.03.1997.

PATIENT: SANTOSH DEVI As per the directions of Dr. R.S.Dhaliwal, payment for one heart valve was made

through draft for Rs.37,165/- in favour of M/s. High Tech Surgical company. Surinder Singh

Uppal supplied one Starr Edwards heart valve which was purchased by him for Rs.24,000/-. Out of profits, he paid Rs.7,000/- to Dr. R.S.Dhaliwal.

10

PATIENT: BALWINDER SINGH The patient was operated on 11.11.1996. One Starr Edwards valve was implanted.

Surinder Singh Uppal received Rs.38,165/towards the cost. Out of profits, he paid Rs.7,582/- to Dr. R.S.Dhaliwal.

PATIENT: MOHINDER KAUR The patient was operated on 03.06.1997. One Starr Edwards valve was implanted.

Surinder Singh Uppal received Rs.39,165/towards the cost. Out of profits, he paid Rs.8,000/- to Dr. R.S.Dhaliwal.

PATIENT: SAVITRI DEVI The patient was operated on 13.01.1997. One Starr Edwards valve was implanted.

Surinder Singh Uppal received Rs.38,165/towards the cost. Out of profits, he paid Rs.7,500/- to Dr. R.S.Dhaliwal.

11

PATIENT: VIKRAM SINGH The patient was operated on 27.05.1997. Two Starr Edwards valves were implanted. The patient was charged Rs.39,000/- each for the valves through bank draft. Surinder Singh Uppal procured the valves for Rs.46,000/-. Out of profits, he paid Rs.16,000/to Dr.

R.S.Dhaliwal.

PATIENT: BALDEV SINGH The patient was operated on 08.02.2000. One TTK Chhitra Mitral valve was implanted

for which he was charged Rs.45,000/-. Out of profits, Rs.20,000/were given to Dr.

R.S.Dhaliwal.

PATIENT: LEELA DEVI The patient was operated on 21.03.2000. One TTK Chhitra Mitral valve was implanted

for which she was charged Rs.35,000/-. Out of profits, Rs.10,000/were given to Dr.

R.S.Dhaliwal.

12

PATIENT: AMARJEET KAUR The patient was operated on 27.04.2000. One TTK Chhitra Mitral valve was implanted

for which she was charged Rs.45,000/-. Out of profits, Rs.20,000/were given to Dr.

R.S.Dhaliwal.

PATIENT: SUNDER SHYAM The patient was operated on 02.05.2000. One TTK Chhitra Mitral valve was implanted for which he was charged Rs.35,000/-. Out of profits, Rs.10,000/were given to Dr.

R.S.Dhaliwal.

PATIENT: AMRITI DEVI The patient was operated on 06.062000. One TTK Chhitra and one Omni Science valves were implanted for which she was charged Rs.87,500/-. Out of profits, Rs.12,000/- were given to Dr. R.S.Dhaliwal. PATIENT: GURNAM SINGH The patient was operated on 29.05.2000.

13

One TTK Chhitra

Mitral valve was implanted

for which he was charged Rs.49,000/-. Out of profits, Rs.12,000/were given to Dr.

R.S.Dhaliwal.

PATIENT: SHAM LAL The patient was operated on 18.09.2000. Two TTK Chhitra Mitral valves were implanted for which he was charged Rs.70,000/-. Out of profits, Rs.21,000/were given to Dr.

R.S.Dhaliwal.

PATIENT: KAMLESH KUMARI The patient was operated on 31.08.2000. One TTK Chhitra Mitral valve was implanted for which she was charged Rs.35,000/-. Out of profits, Rs.10,500/were given to Dr.

R.S.Dhaliwal. PATIENT: ISRO DEVI The patient was operated on 20.04.2000. One TTK Chhitra Mitral valve was implanted for which she was charged Rs.35,000/-. Out of

14

profits,

Rs.15,000/-

were

given

to

Dr.

R.S.Dhaliwal.

PATIENT: JANKI DEVI The patient was operated on 02.11.2000. One TTK Chhitra Mitral valve was implanted for which she was charged Rs.35,000/-. 6. During investigation, it was found that Surinder

Singh Uppal had issued two cheques dated 02.03.1995 for Rs.26,000/- and dated 30.11.1994 for Rs.24,400/- in favour of Dr. Dhaliwal from the amounts so collected from the patients. Dr. Dhaliwal deposited the cheques and the amounts were credited to his account. Further, Surinder Singh Uppal issued two more cheques for Rs.31,000/and Rs.2,000/- respectively on 19.02.1996. Dr. R.S. Dhaliwal deposited the cheques in his account. 7. The documents in which erasings/ alterations/ Govt. Expert of He gave

interpolations were made were sent to

Questioned Documents (for short GEQD).

positive opinion as to the authorship of Dr. R.S. Dhaliwal. 8. During investigations Surinder Singh Uppal got

15

recorded his statement under Section 164 of Code of Criminal Procedure on 3.11.2005. Subsequently vide order dated 23rd February 2006 he was granted pardon by the Court and was allowed to be arrayed as a witness for the prosecution. After getting the sanction for prosecution of accused Dr.R.S. Dhaliwal charge sheet was filed. 9. Copies of charge sheet and documents were

supplied to the accused named above free of costs in compliance of the provisions contained in Section 207 of the Code of Criminal Procedure. 10. Finding prima facie case, charges under Sections

120-B, 420, 467,468 and 471, of the Indian Penal Code and under Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption act, 1988 were framed against accused. The accused pleaded not guilty and claimed trial. 11. To prove its case, the prosecution examined 49

witnesses. They can be divided into following categories. The officials/Doctors from PGI. I. II. PW1 Dr. V.K. Batra, Department of Anesthesia. PW2 Dr. V.K. Grover, Department of Anesthesia. Professor, Professor,

16

III. IV.

PW4 Dr. R.K. Sharma, Deputy Medical Officer. PW6 Smt. Kanchan Ba Jandeja, Chief Perfusionist, department of CTVs.

V.

PW7

D.P.

Mehta,

Joint

Medical

Superintendent. VI. PW8 Dr. Anil Kumar Gupta, Medical

Superintendent. VII. PW10 Gauri Shankar Sinha, Senior

Medical Record Officer. VIII. PW13 Sh. Bihari Lal, Principal Secretary Department. IX. PW14 Dr. Deepak Puri, who joined PGI as Junior Resident and worked as Senior Resident and as Assistant in CTVS. X. PW15 CTVS. XI. PW16 Shimla. XII. PW18 Dr. Devinder Mohan, the then Senior Resident, who worked as Senior Dr. R.S. Kanwar, Associate Dr. Rana Professor, Sandip Singh, of Professor to the Head of Private the

Additional

Department

Professor, Department of CTVS, IGMC,

17

Resident in the department of from January 2000 to December XIII.

CTVS 2002.

PW19 Dr. Gangadhar. He did senior residency from department of CTVS from January 2001 to December 2003. PW20 Smt. Satnam Kaur. She worked as Stenographer in the department of CTVS from 1991-1992 to 2001. PW23 Sh. Jagmohan Superintendent Purchase. Singh,

XIV.

XV. XVI.

PW 26 K.K.Sharma. He remained posted as Senior Lab. Technician, Technical Assistant and Perfusionist from 1971 to 2002. PW31 Daya Dhar, Assistant Cashier. PW47 Suman Arora, Senior Assistant, Accounts Branch.

XVII. XVIII.

The patients or their wards. I. II. III. IV. V. VI. PW22 Jai Singh- Ward of patient Dola Ram. PW24 Ashok Kumar- Ward of patient Vikram Singh. PW25 Dilbag Rai- Ward of patient Sunder Sham. PW27 Mohinder Kaur- ward of Patient Baldev Singh. PW28 Smt. Manohar Lal- ward Darshna Devi. of Patient

PW29 Gali Ram- ward of Patient Leela Devi.

18

VII. VIII. IX. X. XI XII. XIII. XIV. XV. XVI. XVII. XVIII. XIX. XX.

PW35 Nirmal Surinder Kaur.

Singh-Ward

of

Patient patient

PW36 Sh. M.S. Manj- Ward of Mohinder Kaur.

PW37 Satnam Singh- Ward of patient Amarjit Kaur. PW38 Hari Singh- Ward of Patient Smt. Amriti Devi. PW39 Idrish ward of Patient Gulzar. PW41 Jeet Ram- ward of Patient Ali. PW44 Neter Savitri Devi. PW45 Draruv Sharmila. Singh-Ward Rajward of of Shokat patient Patient

PW46 Gurmail Singh- ward of Patient Gurnam Singh. PW 48 Satpal Singh- ward of Patient Santosh Devi. PW49 Rani DeviBalwinder Singh. ward of Patient

PW 50 Raghbir Singh- ward of Patient Sanjogita. PW51 Paras Ram- ward of Patient Kamlesh Kumari. PW57 Jasbir SinghBabli. ward of Patient

19

The Suppliers/representatives. I. PW21 Kewal Kumar Seth, C&F Agent of TTK Health care. PW30 Sh. Sandeep Ghaisas Distribution Manager, Edwards Life Sciences India Pvt. Ltd.

II.

Bank Officers. I. II. Manmohan Singh Officer, Punjab Sind Bank, Sector 17, Chandigarh. &

PW Mandeep Singh, Senior Manager, Centurian Bank of Punjab, Sector 35C, Chandigarh. PW17 Sh. Rachana Ram Pal, Chief Manager, State Bank of Patiala, New Delhi. PW32 J.R. Thakur, Chief Manager, State Bank of India, Dharamshala. PW33 Lalit Kumar, Vice President, Centurian Bank of Punjab, Sector 26, Chandigarh. PW40 Jagir Punjab and Chandigarh. Singh, Senior Manager, Sind Bank, Sector 17,

III.

IV. V.

VI.

VII.

PW42 Jeet Singh, the then Officer in Punjab & Sind Bank Branch, Sector 17, Chandigarh. PW54 M.L. Gupta, Special Assistant, State Bank of India, PGI Branch, Chandigarh.

VIII.

20

Sanctioning Authority. I. PW-9 Dr. K.K. Talwar, Director, PGI.

Witnesses as to handwriting. I. PW59 Dr. Ravindra Sharma, Assistant Govt. Examiner of Questioned Documents. PW 53 Anil Singla- In whose presence specimen signatures/handwritings of Surinder Singh Uppal were taken. PW 56 Yog Raj- in whose presence specimen handwriting/signatures of Surinder Singh Uppal were taken.

II.

III.

Witnesses as to Miscellaneous matters. I. PW3 Dr. Raman Radiology, General 16, Chandigarh. Nijawan, Hospital, SMO, Sector

II.

PW11 Surinder Singh Parmar, the then Assistant Excise and Taxation Commissioner, Chandigarh. PW34 Ashok Kumar- he handed over the record pertaining to reimbursement of medical bills of patient Isro Devi. PW43 Harbilas- He handed over the record pertaining to medical reimbursement of patient Sunder Shyam. PW52 Harminder (Vigilance) FCI. Singh, Manager

III.

IV.

V. VI.

PW 55 Ram Pal Assistant Registration Branch, Panjab, University, Chandigarh. PW60 Surinder Kumar Dabra, Senior

VII.

21

Assistant, Office of Services-cum- Principal

Director,Health Medical Officer.

Investigating Officer. I. PW61 Jai Singh Inspector CBI. Approver. I. PW58- Surinder Singh Uppal.

12. Code

In his statements recorded under Section 313 of of Criminal Procedure, when the confronted accused with

incriminating innocence. 13.

circumstances,

pleaded

The following explanation was given by him:I became the HOD of CVTS Department in 1998. There was no proper purchase procedure for procuring disposable items or Artificial Heart Valves (AHVs) for open heart surgery before I became HOD. There was no purchase system as prevalent in AIIMS, Delhi and other prestigious Private Hospitals (like Apolo Hospital, Fortis Hospital etc.). During my tenure also despite my best efforts I could not succeed in introducing efficient system due to various impediments. At that time there were very few suppliers of AHVs and disposable items for open heart surgery e.g.

22

1. 2.

Paul Medical Hall Bharat Medicos.

Before I became HOD of CVTS, in cases of private patients the patients or their wards were verbally told to go to one of the supplier and procure disposable items and AHVs. Set (s) of AHVs however were supplied by supplier to operation theatre directly. Usually particular

suppliers kept particular brands of valves. The information regarding the suppliers was sought by patients/ wards from other patients, wards of other patients, staff and doctors of CVTS

department. In case of sponsored patients the

requisition was sent to MS office and it was the prerogative of the MS office to procure the AHVs and disposables. At the M.S. Office the system in practice was either to form Spot Committees or float short term tenders for procuring these items. Even in the cases of sponsored patients the suppliers brought the set of AHVs (consisting of 5-6 AHVs of different sizes) to the operation theatre as the price of only one AHV was paid to

23

the supplier. When I joined as HOD in 1998, I tried to streamline process of purchase by introducing lists of disposable items and valves for different open started heart operations. given to Thereafter patients the or lists their

being

attendants. Similar lists were supplied to MS office regarding sponsored patients. When the patient comes to OPD of CVTS department, directly or after having been

referred by Cardiology or Pulmonary Medicine Department, then he is firstly checked by Junior residents or senior residents of CVTS department and thereafter shown to a consultant Surgeon and after a set of investigations the decision regarding the replacement of Heart valve (HV) is taken. Patient and his attendants are told to arrange blood and told in about the approximate The

expenditure

involved

operation.

procedure for fixing the dates and supply of lists of consumables/ disposables and AHVs to the patients or their wards is handled mainly by

24

senior residents. Files of the patients and operation notes and pre and post operation progress notes are written by senior residents as it is their main duty. Regarding the allegation that patients were charged for 2 AHVs but only one implanted or patients charged were for expensive AHV but cheaper one implanted it is explained that ever since I joined CVTS department, the procedure followed relating to surgery for implanting the AHV remained almost the same. The supplier/ his representative would bring a set of AHV

(consisting of different sizes) to the operation theatre just before the AHV was to be implanted. The set was handed over by the supplier to one of the profusionist or a technician of CTVS operation theatre. The profusionist and attending nurse opened the sealed boxes containing the AHVs and handed over the same to the

Operating Surgeon in the presence of surgeon /anesthesia team. In case two AHVs were

25

planned to be implanted then two sets would be brought. Each set used to contain the AHVs of following sizes: The AHVs of St.Jude, Omni and TTK brands consisted of following sizes: Mitral 21mm 23mm 25mm 27mm 29mm 31mm Aortic 17mm 19mm 21mm 23mm 25mm 27mm

The AHVs of Star Edwards and Machhi brands consisted of following sizes : Mitral 1m 2m 3m 4m 5m Aortic 8A 9A 10A 11A 12A

26

Many a times the set/ sets brought by supplier consisted of AHVs of different brands. It was because at times the supplier did not have complete set/ sets of one brand which had been requisitioned or for which the patient had been charged by the supplier. In such circumstances there was no time to arrange the set of the specific brand of AHV which was requisitioned as by the time the set was brought to operation theatre the patient was connected to heart lung machine and his heart was exposed and opened for implantation. However AHV of whatever

brand was implanted was duly mentioned in the operation notes in the patient file. The AHVs were always of reliable and established brand conforming to international standards. The

remaining AHVs i.e the ones left after use from the set/ sets, were taken by the supplier/ representative back after the surgery. At times after the surgery the doctors including myself used to mention the size of the AHV which had been used for the information and record of the

27

supplier/ his representative. I mentioned the sizes of the AHV implanted on few occasions on my letter head on being requested by supplier or his representatives. The patients/ wards used to pay only for one or two AHV(s) to the supplier directly or through MS/PGI, whereas the supplier used to bring to the operation theatre full set/ sets of AHVs because the size of AHV(s) to be implanted could be known only after opening the chamber of the heart of the patient, where valve had to be implanted. Due to that reason the AHV was never handed over to the patient/ward by the supplier because while the patient paid for only one or two AH valves the exact AHV(s) had to be chosen from the full set/sets, each set consisting of 5/6 AHVs of different sizes, which was many more time costly than the single valve. The AHV was also not handed over to the patients/wards because it is packed in a highly sterile sealed box and there was risk of contamination of AHV if the same was opened

28

before operation by the patients/wards out of curiosity. Some such instances had been noted in the past. There were times when the doctors planned to implant two AHVs during pre

operative work up of patient but at the operation table, on examination of heart, it was concluded/ decided that it was possible to repair one heart valve or not to treat it in any way as the defect was too minor, therefore, even if two AHV sets were requisitioned, only one AHV was implanted. Similarly if one heart valve was planned for replacement, but at the operation table it was found repairable or was found all right then the whole set of the AHVs requisitioned or brought by supplier was returned to supplier without implantation of AHV. Whether two or one or no AHV was implanted was duly mentioned in the operation always notes. The by operation notes were

written

senior

resident

doctors

assisting the main operating surgeon. In case senior resident doctors sought any guidance then

29

operating surgeon used to give/ provide the same. It was always expected of the senior resident doctors to write the operation notes correctly and honestly. After the surgery it was always expected of the suppliers that they would refund the amounts to the patients or the PGI in case the AHV(s) supplied by them were not implanted and therefore returned to them or if they had supplied the AHV of brand of lesser price after having charged for AHV of brand of higher price. This procedural aspect was not within the control of main operating surgeon. The disposables and AHVs were supplied by suppliers after the receipt of money from patients directly or through MS office of PGI. The disposable items were handed to the patients/ attendants but AHVs i.e. the set of AHVs was supplied directly in the operation theatre at the time of open heart surgery. The bills submitted by the patient/wards for verification for the purpose of reimbursement

30

at CVTS department, were verified by senior residents in OPD. Because of the heavy work load some discrepancies could have remained undetected as the bills were verified by the senior residents in routine without meticulous comparison between the bills and operation files of the patient.

Regarding

Surinder

Singh

Uppal

it

is

explained that: The wife of Surinder Singh Uppal and my wife were close friends before marriage. During their school times both were Punjab State Level and National Level Basketball

players. They played together many tournaments as team mates and traveled and stayed together during those times and became good friends. After Surinder Singh Uppals marriage the social interaction between the families also continued as both of them i.e my and Surinder Singh Uppals wife settled in Chandigarh. His wife was teacher to both of my sons in their nursery

31

school

i.e.

Ankur

Nursery

School

(Panjab

University Campus) As Surinder Singh Uppal was not well settled in any profession, therefore, he continued to change his professions e.g. 1. 2. 3. Private Tuitions Sold books (Agent) Sold electric meters. Surinder Singh Uppal and his wife

borrowed money from us after their marriage somewhere in middle 80s at various stages totaling about over Rs.2.00 lacs which Surinder Singh Uppal always promised to return whenever his financial condition became stable. Surinder Singh Uppal at his own

initiative made enquiries from me and various other doctors and employees of CTVS

department regarding procedure for the supply of AHVs and other materials for use in CTVS

department, PGI. Taking advantage of close social

relations with me he was able to campaign and

32

persuade the various doctors and employees of CTVS department to introduce the names of his concerns to the patients and their wards

regarding supply of AHVs. There were very few suppliers of AHV in Chandigarh at the time when he established himself in this field e.g. 1. 2. Paul medical Hall Bharat Medicos. I never directly helped him by specially mentioning the names of his concerns to the patients or their wards regarding AHVs. The patients and their wards decided about the suppliers of AHVs by asking from other patients/wards, employees and doctors of the CTVS department. Whenever the patients/wards directly asked me then I used to mention the names of all the established suppliers including the name of Surinder Singh Uppals concerns after I found him also to be a reliable supplier. I never gave any referral slips to

33

patients/wards

in

favour

of

Surinder

Singh

Uppals concerns or any other supplier. However I did mention the exact implanted AHVs brand name and size on my letter head after the implantation on being asked by supplier or his representative for their information or record. Such information was also given in writing by other doctors whenever the supplier asked for the same. Such information on my letter heads is being projected wrongly as reference slips in favour of Surinder Singh Uppal/his firms.

Regarding Diary of Surinder Singh Uppal, it is explained that: After he started supplying the AHVs to CVTS department, it appears that he started having stable income and then he started

repaying the loans he had taken from us. On few occasions, he made the repayments by cheques from his concerns. I told him that since he was supplying the AHV to CVTS departments through his concerns/firms, therefore, the repayments of

34

loans by cheques from those concerns could be misconstrued. Therefore the repayments of loans were predominantly by cash. This is the reason why the cheque to payments of could profit not be

connected

allegations

sharing

between Surinder Singh Uppal and myself even in the fabricated diary. He repaid the loans by 1998. I never received payments for AHVs or for any other purpose on behalf of Surinder Singh Uppal/his concerns or on behalf of any other supplier. I never shared any profits from the sale of AHVs with owners of Paul Medical Hall. From the time I joined in preliminary enquiry and regular case investigation by Enquiry Officedr /Investigating Officer the CBI officials did not even show or mention to me the diary /ledger allegedly

prepared contemporaneously by Surinder Singh Uppal. The diary is a fabrication, a forged document prepared in connivance between the CBI officials and Surinder Singh Uppal after

35

Surinder Singh Uppal decided to become an approver probably when he was confronted by CBI with evidence of overcharging from patients for AHVs. The purpose was to entangle me in a false case as otherwise the CBI were not in a position to implicate me. For making Surinder Singh Uppal the approver, the CBI officials apparently subjected him to persistent physical and mental torture. The open heart register at CVTS

department was filled by the profusionists. It was taken for reference by various senior residents, junior residents, doctors in connection with their medical research papers and publications not only of CVTS department but other departments as well. It never remained in custody of any one in particular and never remained in lock and key of anyone. All the allegations of interpolation,

erasures, forgeries against me whether in open heart/ operation register, in patient files, or bills or any where else are false. All the allegations

36

that

campaigned to

for

or

referred Singh

the

patients/wards

Surinder

Uppals

concerns are false. The PWs were tutored by Investigating Officer Jai Singh to make allegations against me while recording their statements and then in the court with various pressure tactics. He

pressurized them by threats that in case the PW did not make statements as recorded by him under section 161 of the Code of Criminal Procedure then they would be prosecuted for perjury. He lured them by mentioning

compensation if the PWs deposed in a particular way regarding deaths of the relatives. A few patients died after the open heart surgery because of various reasons. Surgery for replacing HV is a major surgery and there is always a heavy risk involved. The patient can die because of following reasons :i. Heart failure due to weak muscle of the heart or prolonged heart disease.

37

ii.

Due to bleeding during post operative period, which could be because of

prolonged cardio pulmonary bypass, use of heparin, damage to components of blood by H/L machine, multiple blood transfusion and deranged coagulation

profile of the patient which is common in long standing heart disease. iii. Acute renal shut down which can happen in any patient after open heart surgery. iv. Respiratory failure because lungs are badly damaged in most of heart patients. v. vi. vii. Infection Myocardial infarction Cerebro vascular accident like brain

hemorrhage or thrombosis. viii. Due to poverty, negligence or ignorance, number of patients do not take anti coagulant tablets/ drugs after

implantation of AHV. This can lead to thrombosis on the valve leading to its malfunctioning which can lead to

38

death. ix. Due to excessive intake of anti coagulant drugs by patients it can result in

hemorrhage in brain or in any other vital organ. But against me in order the to PWs prejudice were the fed PWs with

misinformation that inferior quality AHVs were implanted leading to deaths of their relations. Jai Singh, Investigating Officer was

always present outside the court and tutored/ pressurized the PWs before they deposed in the court. There were times when the Medical Superintendent office of PGI told the staff of CVTS department to transmit the cheques of the suppliers to them i.e. the suppliers. On receiving the information through telephone call the

cheques were brought by CVTS staff and passed on to the suppliers. This task was assigned to CVTS department especially because of shortage of staff with Medical Superintendent office and

39

their heavy load of work. This case is the result of the influence exerted on the CBI by vested interests who wanted to harm me professionally for their own selfish ends.

14.

In

defence

the

following

witnesses

were

examined:DW-1 Jarnail Singh, whose son Jagtar Singh was operated by accused R.S.Dhaliwal. DW-2 Mandhir Mohan, whose wife was

treated by Dr. R.S.Dhaliwal. DW-3 Dr. Rama Krishana who did senior

residency in the department of CVTS from 2000 to 2003. DW-4 Subhash Gupta, whose wife Indu Gupta was treated by Dr. R.S.Dhaliwal. DW-5 Dr. Lakhbir Dhaliwal. She is the wife of Dr. R.S.Dhaliwal and Head of Department of OB Gynecology.

40

DW-6

Dr. Kuldeep Singh Sidhu who did

senior residency CVTS from 1985 to 1987. DW-7 Dr. Rajan Mehra, who did senior

residency CVTS from 1991 to 1993. DW-8 Ms. Jassy Anand, Documents Expert.

15.

Dr. R.S.Dhaliwal himself appeared in the witness

box as DW9 after getting due permission within the meaning of Section 315 of the Code of Criminal

Procedure. 16. I have heard the learned Public Prosecutor and

learned counsel for the accused. 17. Following points arise for determination:(i) Whether cognizance has been taken on

the basis of valid sanction for prosecution of accused Dr. R.S.Dhaliwal? (ii) Whether there was criminal conspiracy

between R.S.Dhaliwal and Surinder Singh Uppal to cheat the patients, the funding agencies and, the PGI?

41

(iii)

Whether in pursuance of conspiracy Dr.

R.S.Dhaliwal used to refer the patients/wards to Surinder Singh Uppal who used to charge

exorbitant rates for artificial heart valves and then used to share these spoils/illgoten gains with Dr.R.S. Dhaliwal? (iv) Whether in pursuance of conspiracy Dr.

R.S.Dhaliwal tampered with record? (v) Whether in pursuance of conspiracy no

heart valve was implanted in the hearts of some patients but they were charged? (vi) Whether in pursuance of conspiracy Dr. committed and various with acts of

R.S.Dhaliwal commissions intention? 18.

omissions

dishonest

In so far as the sanction of prosecution is

concerned, PW-9 Dr. K.K.Talwar has made clear that Governing Body of the PGI was competent authority and as such the relevant papers supplied by CBI were placed before the Governing Body and vide agenda item No.17, dated 9.1.2006 (ExD2) it accorded sanction and

42

simultaneously authorized him, being Member Secretary, to sign and convey the sanction on behalf of Governing Body. 19. Learned counsel for accused would argue that

the sanction is bad for the following reasons:I. As admitted by PW-9, vide Agenda Item

No.17 he was only authorized to sign and convey the sanction whereas the discussion regarding the matter had taken place on earlier dates i.e. 31.8.2005 and 20.12.2005. II. minutes Neither the Agenda Item No.17 nor the of 31.8.2005 and 20.12.2005 were

supplied to the Investigating Officer. III. There is no reference to the meetings

dated 31.8.2005 and 20.12.2005 in the Agenda Item No.17. IV. Admittedly, the sanction order was

prepared only after the meeting dated 9.1.2006 in which Agenda Item No.17 was taken up but the same was never placed before the Governing

43

Body for its approval before being signed by PW-9. V. The Sanction order was prepared by the

Vigilance Section attached with the office of PW-9. This means that there was no application of mind by the competent authority i.e.

Governing Body. VI. PW-9 does not remember which

documents were gone through or perused by him before he signed the order prepared by the Vigilance Section. He even could not remember what documents were circulated to the Governing Body and how the documents were circulated. 20. To my mind, the reasons cited by the defence

are not convincing. There is no doubt that Governing Body of the PGI is the competent authority to remove Dr. R.S.Dhaliwal from service. It cannot be disputed that the Governing Body can authorize any person to sign the orders on its behalf. Whether the decision to accord sanction for prosecution of Dr. R.S.Dhaliwal was taken on 20.12.2005 the fact remains that agenda came to be

44

signed by the Chairman of the Governing Body on 9.1.2006. Therefore, what is relevant is the Agenda Item vide which the decision to accord sanction was taken. A bare perusal of Agenda Item No.17 ExD2 would make it clear that Governing Body had taken the decision to accord sanction. Since the minutes were signed on 9.1.2006 technically it can be said that the decision was taken on 9.1.2006 irrespective of the fact that practically the decision was taken on 20.12.2005. 21. When PW-9 says that the decision to accord

sanction had been taken on 20.12.2005 but he was authorized to convey and sign the sanction on 9th

January 2006, he does not mean to say that these were two different meetings. He never said that Agenda Item No.17 was meant to only authorize him to sign the sanction order. As discussed above, the Agenda Item No.17 is self- explanatory that decision to accord sanction and to authorize PW-9 to sign and convey the sanction on behalf of the Governing Body was taken in one meeting. Since the minutes of meeting were signed by the Chairman of the Governing Body on 9.1.2006 PW-9 said that the decision to accord sanction was taken on

45

20.12.2005 but, he was authorized to convey and sign the sanction order on 9.1.2006. There was the technical reasons for him to say so. Because authorization could be possible only after signing of the minutes by the Chairman of the Body. 22. Agenda Item No.17 itself makes it clear that the

decision to accord sanction was being taken after due deliberations and after considering all aspects of the case. The documents which were gone through by the

Governing Body are mentioned in the Agenda Item. The report of S.P. includes the statements of witnesses. It is therefore, evident that Governing Body had gone through the entire record and only thereafter it was satisfied about the necessity to accord sanction. Merely because, at this stage, PW-9 could not recall as to which particular documents were circulated among the members of the Governing Body it does not mean that the decision was taken without application of mind. Agenda Item No.17 is self explanatory. Moreover, the sanction order itself mentions statements documents. that of the the material examined and included the

witnesses

other

relevant

46

23.

In so far as placing of the sanction order before

the Governing Body again for its approval is concerned the same was not required because, there was no such direction by the Governing Body that PW-9 would sign the order only after getting the draft approved. Once the decision to accord sanction had been taken and PW-9 had been authorized to sign and convey the same, there was no need of placing the draft of sanction order before the Governing Body before signing and conveying it. There is presumption that all officials acts were duly performed. 24. There is nothing wrong if help from the Vigilance

Section was taken because PW-9 makes it clear that he signed the order only after finding it to be in order. Therefore, it cannot be said that it was the Vigilance Section and not the Governing Body of the PGI which accorded sanction. Even otherwise, the defence has not been able to show any defect which could be a pointer to non application of mind by the members of the Governing Body. Merely because PW-9 does not know what does Section 467 of Indian Penal Code mean, it does not mean non application of mind, the provisions of law alleged to have been violated by the accused were mentioned in the

47

FIR as well as the report of SP. If the Vigilance Section found them to be attracted and assisted PW-9, there is nothing wrong. 25. All said and done, the defence has not been able

to prove that the sanction for prosecution of Dr. R.S.Dhaliwal is invalid. Hence, point No.1 is answered in favour of the prosecution. 26. As to the allegations, learned counsel for the

accused argued, at the very outset, that the entire edifice of the prosecution case is built on the diary Ex.PW-58/1 recovered from Surinder Singh Uppal and the entries made therein which are inadmissible in evidence and, if taken out of reckoning, there would be left nothing to prove the allegations. It was canvassed that the nature and the character of the diary is such that it cannot be considered a book of account so as to come within the purview of Section 34 of the Evidence Act. Asserting that even if for the sake of argument, the diary is taken as book of accounts and read in evidence, learned counsel argued that there is no probative value attached to the entries therein as the same have been made on the

back of the accused and there is no independent

48

evidence of their trustworthiness. 27. Assailing the authenticity and reliability of the

diary, learned counsel argued that it is a fabrication, a forged document prepared in connivance between CBI and S.S.Uppal after the latter decided to become an approver. Viewed from another angle, learned counsel

argued that the diary was fabricated when no evidence came on record against Dr. R.S.Dhaliwal. S.S.Uppal

came under pressure when the CBI pressurized him with allegations of over charging from the patients. This coupled with the mental and physical contended torture that was the

S.S.Uppal.

Learned

counsel

Investigating Officer has tried to play down the intensity of interrogation to which S.S.Uppal was subjected during investigation but S.S.Uppal has himself admitted that he was made to sit at the CBI office many times from 10.00 a.m. till 11.30 p.m. at night and that he was interrogated by higher officers of the CBI on a number of occasions. 28. The features indicating the forged nature of the

diary were cited as under: 1) The diary was never sealed after it was

49

allegedly taken into possession by the Investigating Officer. 1) At the time of making statement under Section 164 of the Code of Criminal

Procedure, S.S.Uppal did not have the diary. Both S.S.Uppal and the Investigating Officer were asked as to why S.S.Uppal did not appear before the learned Special Magistrate along with the diary. Both of them gave unconvincing answers. This means that by the time the statement of S.S.Uppal was recorded under Section 164 of the Code of Criminal Procedure the diary had not been completely fabricated. 2) As per the prosecution case, payments on four occasions were made by S.S.Uppal to the accused through cheques towards his share in profits. However, the entries in the diary and the statement this of S.S.Uppal do not as

corroborate

version

inasmuch

according to S.S.Uppal the payments by cheques were made towards refund as no

50

purchase of artificial heart valves had been made in those of instances. Rs.24,400/Regarding by the

payment

cheque

Ex.PW-33/5, the claim of S.S.Uppal is that he had received Rs.26,000/from Dr.

R.S.Dhaliwal but no valve was purchased and after deducting Rs.1,600/- towards his share he had refunded Rs.24,400/to Dr.

R.S.Dhaliwal. Regarding cheque Ex.PW-5/2, the stand of S.S.Uppal is that he had received draft of Rs.26,000/- from the accused but thereafter Dr. R.S.Dhaliwal told him that the valve was not required and, therefore, refund was given. In this case, no money was kept by S.S.Uppal as his share. While filing report under Section 173 of the Code of Criminal Procedure, the prosecution has concluded that the original figure in the bill Ex.PW-39/2 was Rs.20,000/- and it was changed to Rs.26,000/- by the accused. This conclusion matches with the entry made in the diary Ex.PW-58/1. However as per the report of

51

the Government Expert, the original figure in the bill was Rs.22,000/- which was changed to Rs.26,000/-. (According to the counsel, the discrepancy appeared because the

Investigating Officer must have mistakenly observed the original figure to be Rs.20,000/and thereafter he must have got the entry in the diary fabricated little realizing that the opinion of the expert would falsify his stand). 3) In the matter of almost all the patients mentioned in the diary, the size of the valve has been mentioned even prior to the date on which the operation had taken place. This is against the established case that the size of the artificial heart valve to be implanted could be known only on the operation table after opening the heart and, thus, there was no question of the valves being requisitioned by size. Therefore, the mention of the size of the artificial heart valves in the diary even prior to the date of operation establishes the fabricated nature. Moreover in most of the

52

cases, even the share of the accused has been shown paid to Dr. R.S.Dhaliwal on the date prior to the date of operation.

Considering the fact that the different sizes of artificial heart valves had different prices and the supplier used to bring a mixed set to the operation theatre and the exact brand of the valve implanted could be known only after implantation, sharing of the profits even before the operation falsifies the genuineness of the entries in the diary.

29.

To appreciate the contention raised by counsel necessary to find out, in the

for the accused, it will be

very first instance as to whether the diary Ex.PW-58/1 is a book. Then the endeavour would be to find out whether it is a book of account which has been regularly kept in the course of business. 30. In Central Bureau of Investigation Versus

V.C. Shukla, 1998 (2) RCR (Criminal) Page 17, it has been held by the Hon'ble Supreme Court that book ordinarily means a collection of sheets of paper or other

53

material, blank, written, or printed, fastened or bound to together so as to form a material whole. Applying this

test, it has to be held that the diary Ex.PW-58/1 is a book within the meaning of Section 34 of the evidence Act. 31. In V.C. Shukla's case (Supra) itself, the word

'account' was interpreted to mean the preparation of record or statement of transactions or the like: a statement and explanation of one's administration or conduct in many affairs: a statement or record of financial transactions, a reckoning or computation; a registry of pecuniary transactions or a reckoning of money

transactions; a written or printed statement of business dealing or debts and credits; or a certain class of them. 32. The word 'business' was held to mean an activity

carried on continuously and systematically with a set purpose, (be it illegal), by a person by the application of his labour or skill with a view to earn an income. 33. In Kesheo Rao Versus Ganesh AIR 1926 Nagpur

407, the words 'regularly kept' were interpreted as under: "The regularity of which Section 34

speaks cannot possibly mean that there

54

is no mistake in the accounts as that would make the section a dead letter; no accounts could be admitted in evidence till they had been proved to be absolutely correct, which is in itself an impossible task and also cannot be begun have been admitted in til they

evidence.

Regularly and systematically means that the accounts are kept according to a set of rules or a system, whether the

accountant has followed the rules or system closely or not. Nor is there

anything in the section that says the system must be an elaborate or reliable one. Both those matters, the degree of of with the system it and has the been the its

excellence closeness

which

followed, affec t the weight of evidence of an entry, not

admissibility.

Thr roughest memoranda

of accounts kept generally according to the most elementary system, though

55

often departing from it, are admissible in evidence, but would of course have no weight". 34. The view expressed in Kesheo Rao's case (supra

found favour with the Hon'ble Supreme Court in V.C. Shukla's case (supra). 35. Time now to apply law as discussed above to the

diary Ex.PW-58/1. It is reiterated, even at the cost of repetition, that it is a book. It starts with 21st December, 1993 with three columns viz. particulars, receipt,

expenses.

Under the column of particulars, the date of

procurement of valve, the size of the valve and the price is mentioned. In the column of receipt, the date, the name of the patient and the amount received is

mentioned. In the column of expenses, the actual expenses viz. fare to Delhi, bank charges etc. are mentioned. After totaling the expenses, the words 'paid to DD' are mentioned. The date and the amount is also mentioned. The words 'DD' appear to be abbreviated form of Dr. Dhaliwal. The entries continue like this upto 21.04.1994. Thereafter, the receipts and expenses for the period December 1993 to April 1994 have been tabulated.

56

The cash paid to Dr. Dhaliwal during this period has been shown to be Rs.36,000/- while the cash received by SS (appears to be abbreviated form of Surinder Singh) has been shown as Rs.21,478/- after deducting the expenses. 36. From May 1994, there is a change in the practice that the main columns are that of receipt

in the sense

and expenses. In the column of receipt, the actual amounts received are mentioned. The mode i.e. Whether the amount has been received in cash or by

cheque/demand draft is also mentioned. The name of the patient for whom the amount is meant and the number of valves sought to be procured are also mentioned in this column. In the column of expenses, the actual expenses inclusive of cost of valve are mentioned. In the same column, the amount paid to Dr. Dhaliwal has been mentioned. The dates in all the columns are precisely mentioned. From 31.08.1994 onwards, the total amount shared by Dr. Dhaliwal and Surinder Singh Uppal from inception was started being mentioned. These entries

were carried forward on each page till 06.02.2001 by which time, the total amount to the share of Dr. Dhaliwal was shown as Rs.14,22,892/-. The total amount to the

57

share

of

Surinder

Singh

Uppal

was

shown

as

Rs.11,03,824/-. After 06.02.2001, these entries were not carried forward. 37. It is evident that the diary Ex.PW-58/1 contains a

record of monetary transactions such as receipts, debts, credits, amounts payable, amounts receivable etc.; in

most cases showing balance or result of comparison between items of opposite nature. Therefore, the diary fulfills the requirements of account. It records monetary transactions-such as receipts and payments-duly

reckoned. The accounts may not have been kept in technically correct manner but, it is evident that they have been regularly kept according to a system albeit, in some instances, the system has not been followed closely. It cannot be denied that the accounts were being kept in the course of activity carried on continuously and systematically with a view to earning an income.

Therefore, in view of the law laid down in Central Bureau of Investigation Versus V.C. Shukla (supra), the diary Ex.PW-58/1 fulfills the requirements of Section 34 of the Evidence Act and as such the entires therein would be admissible.

58

38.

The

next

step

would

be

to

ascertain

the

probative value of the entries for it is well settled that even if all the requirements are fulfilled and the entries become admissible as relevant evidence, still, the

statement made therein shall not alone be sufficient evidence to charge any person with liability. There has to be an independent evidence as an additional safeguard. It has to be shown that the entries represent real transactions and that money was paid/received in

accordance with those entries. 39. Learned Public Prosecutor argued that there is

ample material in the shape of the statements of the witnesses, the record of the PGI, the referral slips Ex.PW-58/4 and Ex.PW-59/1 to Ex.PW-59/4 and the bank records to prove the authenticity of the entries in the diary Ex.PW-58/1. It was further argued that the grounds cited by the defence to prove that the diary Ex.PW-58/1 a fabricated and forged document are flimsy, non-existent and unconvincing. 40. to the Before we take up the evidence which, according prosecution, independently establishes the

authenticity of the entries in the diary, let us discuss the

59

grounds on which the diary is being sought to be rejected as a piece of fabrication. 41. That the diary Ex.PW-58/1 was seized from

Surinder Singh Uppal vide seizure memo Ex.PW-52/1 on 07.06.2004 stands proved by the Investigating Officer and PW-52 Harminder Singh who joined as independent witness. According to PW-52, the diary was handed over to the Investigating Officer by a Sikh gentleman in his presence as well as in the presence of his colleague Marcus Mundu and at that time both of them had initialled all the pages of the diary as an acknowledgment that it was the same diary which had been seized in their presence. There was no suggestion to PW-52 that his initials as well as that of Marcus Mundu were not there on each page of the diary Ex.PW-58/1 or that their initials were obtained not on the date of seizure but on some later date. It is, thus,, proved that Ex.PW-58/1 is the same diary which was seized on 07.06.2004 in the presence of independent witnesses. Merely because it was not sealed, it does not mean that the entries therein have been fabricated subsequently. Even in the seizure memo Ex.PW-52/1 while giving the description of the diary, it

60

was mentioned that it was containing hand written entries in pencil/pen regarding purchase and sale of heart valves and payments made to Dr. R.S.Dhaliwal (patient wise). It means that entries were there from Page No.20 to Page No.95, as indicated in the seizure memo. While all the entries regarding particulars, receipts, expenses are in pencil, most of the entries carrying forward the account are in ink (red ink). There are no marks of erasings in any entry except the first two entries of 1994. Therefore, it cannot be said that the entire diary was fabricated later on after erasing the previous entries. There are some cuttings/overwritings in few entries but the same appear to be in routine. The manner in which the entries have been made and the account has been carried forward at the end of each page from Page No.26 onwards leaves no doubt that these entries were already in existence when the diary was seized. Otherwise, it would have been highly improbable if not impossible to first delete the

previous entries and then make fresh entries. 42. Therefore, there is no substance in the

contention of the defence that the entries in the diary were fabricated at a later stage after Surinder Singh

61

Uppal agreed to become an approver.

Merely because,

the diary was not with Surinder Singh Uppal when he made statement under Section 164 of the Code of Criminal Procedure, it does not mean that at that time the diary in its present form was not in existence. The diary had nothing to do with the statement under Section 164 of the Code of Criminal Procedure which Surinder Singh Uppal was supposed to make from memory. 43. On first blush, one would like to accept the

contention that the mention of the size of the artificial heart valves in the diary even prior to the date of operation establishes its fabricated nature considering the fact that the size of the artificial heart valve to be implanted could be known only on the operation table after opening the heart. However, on deeper analysis, the contention would appear baseless. Although, it has come on record that as a matter of practice, the suppliers used to bring a set of valves of different sizes, at times of different brands, to the operation theatre just before surgery and valve of suitable size used to be implanted yet, there is nothing on record to prove that even Surinder Singh Uppal used to resort to this practice. He

62

has categorically stated that he never used to take a complete set of different sizes to the operation theatre. According to him, he used to hand over to Dr. Dhaliwal the valve of particular size as told to him by Dr. Dhaliwal. He explained that he was not aware of the

procedure/method adopted by other dealers/suppliers. According to him, he used to make payment to the dealer for particular valve of a particular size and not for the entire set. This statement and explanation inspires

confidence. Merely because, other suppliers used to bring a set of valves to the operation theatre, it does not mean that Surinder Singh Uppal also used to do that. Since Dr. Dhaliwal had been sharing profits with Surinder Singh Uppal, he might have devised a method to accommodate the latter by accepting the valve of a particular size from him. There could have been many ways to substitute the valve so supplied with the valve of the required size. This would be evident from the case of Surinder Kaur. The valves supplied for her were found implanted in the hearts of other patients namely Om Parkash and Kashmiri Lal while some other valves were implanted in her heart. From this, it can be inferred that Dr. Dhaliwal had some

63

kind of arrangement with other suppliers whereby he used to exchange the valves supplied by Surinder Singh Uppal. 44. Had the entries in the diary Ex.PW-58/1 been

fabricated at a later stage as canvassed by the defence, the size of the valve purported to have been supplied would have matched with the size of the valve actually implanted in all the instances. However, this is not so. In the following cases the size of the valve supplied as per the diary differs from the size actually implanted as per the operation notes: Sr. Patient's Name No. 1. 2. 3. 4. 5. Santosh Devi Surinder Kaur Baldev Singh Amriti Devi Shaukat Ali Size supplied Size implanted 3M 8A & 3 M 27 MM 27MM 21MM 27MM 2M 3M & 9A 21 MM & 27MM 19MM 29MM &

45.

Insofar as the alleged discrepancy regarding

original amount mentioned in the bill Ex.PW-39/2 is concerned, the same does exist but, is not material. To say that the discrepancy is not inherent but a result of wrong observation made by the Investigating Officer

64

would not be exaggregation. This point shall be taken up in detail in the later part of the judgment. Needless to say that there is nothing to suggest that the entries in the diary Ex.PW-58/1 have been fabricated. 46. To prove the transactions between Surinder

Singh Uppal and accused R.S.Dhaliwal, the prosecution has cited four cheques Ex.PW-12/14, Ex.PW-12/15,

Ex.PW-5/2 and Ex.PW-33/5. Out of these cheques, Ex.PW-12/4 and Ex.PW-12/5 were issued by High Tech Surgical Company. The cheques Ex.PW-5/2 and

Ex.PW-33/5 were issued by Surinder Singh Uppal as Proprietor of Alfa Surgicals. According to Surinder Singh Uppal, the cheque Ex.PW-12/14 was issued by him as one draft for the same amount had been received and deposited in the account for the purchase of heart valve but later Dr. Dhaliwal instructed him not to

procure/supply the valve. This statement corroborates the entry at Page No.38 of the diary Ex.PW-58/1, as per which PW-58 had received draft for Rs.31,000/- from Dr. Dhaliwal on behalf of patient Harjinder Kaur but on 19.02.1996 this amount was refunded by him by way of cheque to Dr. Dhaliwal. From the statement of account of

65

Hi-Tech Surgical Company (Ex.PW-12/16-A), it is evident that a sum of Rs.31,000/- was credited to the account on 16.02.1996 by clearing. The same statement of account proves that on 27.02.1996, an amount of Rs.31,000/was debited to the account towards encashment of cheque No.18072 in favour of R.S.Dhaliwal. This is the same cheque which, according to Surinder Singh Uppal, was handed over by him to Dr. Dhaliwal for refund of the money received by him by way of draft dated

15.02.1996. 47. In the diary at Page No.38 itself, there is an

entry dated 15.02.1996 as per which Surinder Singh Uppal received Rs.6,000/- from Dr. Dhaliwal by way of draft for patient Vinod. Out of this, he refunded

Rs.2,000/- by cheque to Dr. Dhaliwal on 19.02.1996. At the same page, there are detailed calculations as per which he adjusted Rs.4,000/-. 48. That the draft of Rs.6,000/- was encashed and

credited to the account of Hi-Tech surgical Company is proved from the statement of account Ex.PW-12/16-A. According to Surinder Singh Uppal, he had adjusted Rs.4,000/- which were due from Dr. Dhaliwal and had

66

paid

Rs.2,000/-

to

the

latter

by

way

of

cheque

Ex.PW-12/15.

From the pay-in-slip Ex.PW-17/4, it is

proved that Dr. R.S.Dhaliwal deposited both the cheques No.18072 and 18073 (Ex.PW-12/14 and Ex.PW-12/15 respectively) in his account. From the statement of

account Ex.PW-12/16-A, it is proved that the amount of the cheque No.18073 was debited to the account of HiTech Surgicals in favour of R.S.Dhaliwal on 27.02.1996. The statement of account Ex.PW-17/2 of Dr. R.S.Dhaliwal proves that the amount of Rs.33,000/- was credited to his account on 27.02.1996. 49. According to Surinder Singh Uppal, he had

received draft for Rs.26,000/- from Dr. Dhaliwal on 17.11.1994 for purchase of one 3M valve for some patient whose complete name could not be noted down by him in the diary but later Dr. Dhaliwal told him that he will procure the valves himself, therefore, the amount after deducting the profit be refunded and accordingly, he issued cheque Ex.PW-33/15 for Rs.24,400/after

deducting his share of profit. From the statement of account Ex.PW-33/19, it is proved that on 22.11.199, an amount of Rs.26,000/- was credited to the account of

67

Alpha Surgicals by way of clearing and on 03.12.1994, an amount of Rs.24,400/- was debited to the account. From the pay-in-slip Ex.PW-32/11, it is proved that the cheque Ex.PW-33/15 was deposited by in his account on

01.12.1994. From the statement of account Ex.PW-32/12 of Dr. R.S.Dhaliwal, it is proved that the amount of Rs.24,400/- was credited to his account on 05.12.1994. The corresponding debt entry is there in the statement of account Ex.PW-33/19 of Alpha Surgical Company. 50. A perusal of Page No.28 of the diary Ex.PW-58/1

would make it clear that on 17.11.1994, a draft for Rs.26,000/- was received. This entry is in encircled

portion 'A'. Against this entry, it is mentioned that a Med Tech. Valve was procured on 19.11.1994. It means that against the amount of rs.26,000/received on

17.11.1994, the valve was procured. From this, it would be clear that the statement of Surinder Singh Uppal, to this extent, is wrong. However this, by itself, will not be sufficient to prove that it is a false statement. The witness may have committed an error but he has not lied as is evident from the perusal of the entire entries made on Page No.28 of the diary. It is clear that on 25.11.1994 a

68

sum of Rs.20,500/- was received from Dr. Dhaliwal through different instruments of Rs.70/-+Rs.200/on

+Rs.320/-+

Rs.5,000/-+Rs.15,000/-.Thereafter

30.11.1994, another sum of Rs.,5410/- was received from Dr. Dhaliwal the by way of another so instrument. was

Therefore, Rs.26,000/-.

total

amount, the

received, of

From

statement

account

Ex.PW-33/19, it is proved that on 28.11.1994, a sum of Rs.14,980/- was credited to the account by way of transfer. Thereafter, a sum of Rs.5590/- was credited by way of clearing on 29.11.1994. This was followed by a credit entry of Rs.5410/by way of clearing on

02.12.1994. These entries correspond the entries made in the diary in the name of Vinod Kumar. It appears that out of Rs.15,000/-, a sum of Rs.14,980/- was credited to the account after deducting the commission by the bank. In the diary, there is no entry of purchase of any valve for Vinod Kumar on whose behalf the amount of rs.26,000/was received through different instruments. Against this very entry, there is mention of refund of Rs.24,400/- to Dr. Dhaliwal by way of Cheque No.205054. (Again there appears to be clerical error inasmuch as the cheque No. is

69

205053). It is, therefore, clear that the amount of Rs.24,400/- which was refunded by Surinder Singh Uppal to Dr. R.S.Dhaliwal was on account of Vinod Kumar. However, when Surinder Singh Uppal appeared in the witness box, he might have got confused and by mixing up the facts, he appears to have stated that the amount was meant for another patient on 17.11.1994. Such an error can be a result of lapse of attention or confusion but the entries are corroborated by documentary evidence, viz; statement of account and the cheque Ex.PW-33/15. 51. According to Surinder Singh Uppal, he received

draft of Rs.26,000/- from Dr. R.S.Dhaliwal on 24.02.1995 for purchase of one 3 M valve for patient Jasbir Kaur but then Dr. Dhaliwal told him that the valve was not required, therefore, the amount be refunded and

accordingly, he issued cheque Ex.PW-5/2. As to the entry in the diary, he pointed out portion A at Page No.30 only the factum of receipt of draft and cancellation of the bill is mentioned. The cheque is Ex.PW-5/2. From the pay-inslip Ex.PW-32/17, it is proved that Dr. Dhaliwal deposited this cheque in his account. Statement of account

Ex.PW-32/18 proves that the amount of the cheque was

70

credited to his account on 07.03.1996. The corresponding debiting entry is available in the statement of account of Alfa Surgical Company (Ex.PW-5/3). 52. To explain the receipt of cheques, Dr.

R.S.Dhaliwal has come up with defence that his wife and the wife of Surinder Singh Uppal were close friends before their marriage Chandigarh, and since both of them settled in interaction between the families

social

continued. Moreover, the wife of Surinder Singh Uppal used to teach his both sons in Ankur Nursery School but, Surinder Singh Uppal was not well settled inasmuch as he continued changing his profession from private tuitions to selling books and electric meters. According to Dr.

Dhaliwal, Surinder Singh Uppal and his wife borrowed money totalling approximately Rs.2 lacs from 'us'

(meaning thereby that money was borrowed from him as well as his wife) on many occasions in mid 80s with

promise to return whenever his financial condition would become stable and that taking advantage of close social relations with him he was able to campaign and persuade various doctors and employees of CVTS Department to introduce the names of his concerns to the patients and

71

wards regarding supply of AHVs. Dr. Dhaliwal explains further that he never directly helped Surinder Singh Uppal by specially mentioning the names of his concerns to the patients or their wards but whenever anybody would ask him, he would mention the names of all the established suppliers including Surinder Singh Uppal's concerns as he was also found to be a reliable supplier. According to Dr. Dhaliwal, Surinder Singh Uppal started repaying the loans after his income became stable and on few occasions he made repayment by cheques from his concerns. He explains I told him that since he was supplying the AHVs to CVTS Department through his concerns/firms,

therefore, the repayments of loans by cheques from those concerns could be misconstrued. Therefore, the

repayments of loans were pre-dominantly by cash. This is the reason why the cheque payments could not be connected to the allegations of profit sharing between Surinder Singh Uppal and myself even in the fabricated diary. 53. According to Dr. Dhaliwal, Surinder Singh Uppal

repaid the loans by 1998. To support him, his wife DW-5 Dr. Lakhbir Dhaliwal stepped in the witness box. She fine

72

tuned the explanation by saying that at no point of time Surinder Singh Uppal and his wife borrowed more than Rs.10,000/- in single instance. 54. Learned counsel for the accused would echo the

views expressed by the latter in his statement under Section 313 of the code of Criminal Procedure. He argued that as per the prosecution version, all the four cheques were handed over by Surinder Singh Uppal to the accused in pursuance of sharing of profits but, according to Surinder Singh Uppal himself, three out of the four cheques were refund cases where no purchase of AHVs had been made and only the cheque Ex.PW-12/15 for Rs.2000/was towards sharing of profits. Learned

counsel would question as to why no instance of cheque payment has been found relatable to the sharing of profits? He contended that while fabricating the diary,

the cheques were also incorporated to show that there were dealings otherwise than the loan transactions. 55. Apart The explanation does not convince the court. from the bald statements of accused Dr.

R.S.Dhaliwal himself and his wife Dr. Lakhbir Dhaliwal, there is no material to prove that Surinder Singh Uppal or

73

his wife had borrowed moneys from them on any occasion. No doubt that according to them, the relations between both the families were so good that it was not considered proper to execute any document of loan but the fact remains that according to DW Dr. Lakhbir Dhaliwal, accounts used to be kept. While stating so, she said that she had not brought those accounts. She did not claim that the accounts were no more available or that the same had been destroyed after the repayment of loan. Therefore, it appears that the claim that accounts used to be kept was made on the spur of moment to justify herself, whereas there were no such accounts. The fact that according to DW Lakhbir Dhaliwal, Surinder

Singh Uppal, on no occasion borrowed money exceeding Rs.10,000/-, is also interesting. The catch is that as per the conduct rules, any transaction exceeding Rs.10,000/had to be reported to the employer albeit, DW Lakhbir Dhaliwal pleaded ignorance if there was any such rule.

Dr. R.S.Dhaliwal has tried to explain as to why most of the amount allegedly lent by him and his wife to Surinder Singh Uppal and his wife was repaid in cash. While

explaining this in his statement part of which has been

74

reproduced above, he has given impression that he was aware that the payment through cheques could be misconstrued, therefore, he himself insisted on cash. The question arises as to when did he warn or advise Surinder Singh Uppal not to repay by cheque. The fact remains that the payments by cheques were on 30.11.1994, 02.03.1995 and 19.02.1996. Dr. Dhaliwal has not

explained as to why he did not warn/advise Surinder Singh Uppal when the payment by way of cheque was made in the first instance. If he had warned/advised, Surinder Singh Uppal only in February 1996, question arises as to why there had been payments in cash in

between. It is not that there were payments by cheques initially which stopped. The payments of cheques and cash were in between. The Court is convinced with the explanation of Surinder Singh Uppal that whenever he was not having sufficient cash he used to draw cheques. 56. It is correct that none of the cheques relates to

sharing of profits technically albeit, in respect of the Cheque Ex.PW-33/5, Surinder Singh Uppal had retained his share of Rs.1600/- out of the total amount of Rs.26,000/-. Insofar as cheque Ex.PW-12/15 is

75

concerned,

the

same

was

also

not

towards

Dr.

R.S.Dhaliwal's share in profits. Although, this cheque was towards repayment of the amount of Rs.6,000/- received on behalf of patient Vinod yet, only Rs.2,000/- were paid. The remaining Rs.4,000/- were not towards share in the profits in that particular instance but were, according to Surinder Singh Uppal, due to him which he adjusted. He never said that the cheque Ex.PW-12/15 for Rs.2,000/was towards sharing of profits. Even, the entry in the diary does not reflect that the cheque for Rs.2,000/- was towards Dr. R.S.Dhaliwal's share in profit. 57. The fact that there were running transactions

between Dr.R.S.Dhaliwal and Surinder Singh Uppal is proved from the statement of Surinder Singh Uppal as well as from the diary Ex.PW-58/1. It is not that in every single instance, the actual payment being made was as per the decided ratio. 58. At this stage, it would be pertinent to mention

that as per the prosecution case, the profits used to be divided in the ratio of 60% to 70% for Dr. R.S.Dhaliwal and 30% to 40% for Surinder Singh Uppal. However, when Surinder Singh Uppal stepped in the witness box he

76

said that the ratio was 50:50 but since the expenses were to be borne by him, effectively it was 60% for Dr. R.S.Dhaliwal and 40% for himself. 59. As already observed, the amount shared till

06.02.2001 was Rs.14,22,892/- for Dr. R.S.Dhaliwal and Rs.11,03,824/- for Surinder Singh Uppal. The total would be Rs.25,26,716/-. Forty per cent of this would be Rs.10,10,686.40 Ps. The amount kept by Surinder Singh Uppal towards his share is round about that although, it is not exact 40%. Surinder Singh Uppal never claimed that agreed ratio was 60 to 70% for Dr. R.S.Dhaliwal and 30 to 40% for him. He had always been claiming that effectively the ratio was 60:40. When he said that the

ratio was 50:50, he explained that since the expenses were to be borne by him, the effective ratio was 60:40. It is not clear from where the Investigating Officer deduced that the ratio was 60 to 70% for Dr.

R.S.Dhaliwal and 30 to 40%

for Surinder Singh Uppal.

Anyways, it is the statement of the witness and the record which matters and not the conclusion wrongly drawn by the Investigating Officer. 60. Needless to say that the cheques Ex.PW-5/2,

77

Ex.PW-12/14, Ex.PW-12/15 and Ex.PW-33/5 and the bank record referred to above corroborate the entries in the diary Ex.PW-58/1. Had the diary been fabricated as is being alleged by the defence, the cheques could easily have been shown towards the sharing of profits to bolster the case of the prosecution. 61. PW Surinder Singh Uppal has made clear that till

1998 he had been going to the office of Dr. R.S.Dhaliwal who would hand over to him cash/drafts received from the patients/wards but, then Dr. R.S.Dhaliwal started sending the attendants of the patients to him with handwritten slips after briefing the patients/attendants about the amount to be paid to him. According to him, he used to accept money from the attendants/patients by way of cash or draft and, thereafter, he would, after purchasing the valves, deliver the same to Dr. Dhaliwal. Some of the slips have been placed on record as Ex.PW-58/4, Ex.PW-58/5, Mark PG, Mark PG/1 and Mark PG/2. Although, Ex.PW-58/4 and Ex.PW-58/5 were sent

to the Government Examiner of Questioned Documents for opinion yet, the same, on comparison with the standard writings of Dr. R.S.Dhaliwal are proved to be in

78

his hand. Mark PG, Mark PG/1 and Mark PG/2 have not been formerly proved. But Ex.PW-58/4 and Ex.PW-58/5 clearly prove that Dr. R.S.Dhaliwal had been asking the patients/wards to prepare drafts for Hi-Tech Instruments. This corroborates the statement of Surinder Singh Uppal. 62. Apart from Ex.PW-58/4 and Ex.PW-58/5, Mark

PG, Mark PG/1 and Mark PG/2 which are on plain paper, there are certain referrals on letter head of Dr.

R.S.Dhaliwal. The same are Ex.PW-59/1 to Ex.PW-59/4. On these, the name of the patient, the valve required and the size thereof are mentioned. Dr. R.S.Dhaliwal has not denied these, though, he has explained that these are not referral slips in favour of Surinder Singh Uppal's concerns or any other supplier. According to him, he used to mention the brand name and the size of the AHV actually implanted on his letter head after the implantation on being asked by the supplier or his representative for their information or record. 63. The explanation by Dr. R.S.Dhaliwal is far from

convincing. Ex.PW-59/1 is dated 9/10. It is in the name of Pale Ram. The valve mentioned is Starr Edwards Mitral Valve 3M. I have gone through the entire open heart

79

register. No patient by the name of Pale Ram was ever operated. It appears that the patient's name was Dole Ram but it was incorrectly mentioned as Pale Ram in the letter head Ex.PW-59/1. Even Dole Ran had never been operated. Therefore, the question of mentioning the valve purported to have been implanted in his heart does not arise. 64. Ex.PW-59/2 pertains patient Darshan Singh. It is

dated 01.10.1996. The valve mentioned is Starr Edwards Mitral 2M. As per Page No.44 of the diary Ex.PW-58/1,

an amount of Rs.38,165/- was received on behalf of Darshan Singh on 01.10.1996 itself. As per the open heart register, Darshan Singh was operated on

25.10.1996 and the valve implanted was 3M Starr Edwards. 65. Ex.PW-59/3 pertains patient Sanjogita. It is

dated 25.05.1996. The valve mentioned is Mitral 3M. As per entry in the diary Ex.PW-58/1, a sum of Rs.35,165/was received by Surinder Singh Uppal on behalf of patient Sanjogita on 25.05.1996 itself. As per the open heart register, Sanjogita was operated on 27.05.1996 and the valve implanted was 3M Starr Edwards.

80

66.

Ex.PW-59/5 pertains patient Sat Pal Jindal. It is

dated 23.08.1996. The valve mentioned is Starr Edwards Aotic 10A and 11A. As per Page No.43 of the diary Ex.PW-58/1, an amount of Rs.42,000/- was received by Surinder Singh Uppal on behalf of Sat Pal Jindal on the same day i.e. on 23.08.1996. As per open heart register, Sat Pal Jindal was operated on 16.09.1996 and the valve implanted was 9A Starr Edwards. 67. The A perusal of the above would reveal a pattern. dates mentioned on Ex.PW-59/1, Ex.PW-59/2,

Ex.PW-59/3 and Ex.PW-59/5 correspond to the dates mentioned in the diary Ex.PW-58/1. Since these were issued before the patients were operated, it can be safely inferred that these are referral slips. Not even one of them was issued after the date of surgery so as to corroborate the statement of Dr. R.S.Dhaliwal that he used to mention the details on his letter heads after surgery at the instance of the supplier/representative. Moreover, in the case of Darshan Singh, the valve actually implanted was 3M while in Ex.PW-59/2, it is mentioned as 2M. In case of Sat Pal Jindal, the size of the valve implanted was 9A but in Ex.PW-59/5, it is

81

mentioned

as

10A

and

11A.

The

stand

taken

by

Dr.R.S.Dhaliwal, therefore, stands falsified. Conversely, it is proved that Ex.PW-58/4 and Ex.PW-59/1 to

Ex.PW-59/5 are referral slips which used to be issued by Dr. R.S.Dhaliwal to the patients/wards. 68. Coming to PW-58 Surinder Singh Uppal, in view

of the law laid down in Ram Narain Versus State of Rajasthan 1973 SCC Criminal 545, he is a competent witness though, to be reliable he has to be corroborated in material particulars. How the statement of such a witness is to be read has been explained by the Hon'ble Supreme Court as under: "Before considering the evidence on the record it may be borne in mind that the court should evaluate the evidence of an approver dehors

the corroborating pieces of evidence for, if his testimony is itself uninspiring and unacceptable justifying its rejection outright, then, it would be futile and wholly unnecesary to look for corroborating evidence. It is only when the approver's evidence is considered otherwise acceptable that the court applies its mind to

82

the rule that his testimony needs corroboration in material particulars connecting or tending to connect each one of the accused with the crime charged". 69. PW Surinder Singh Uppal, the approver has

deposed that his wife had some gynaecological problem for which she was taking treatment from Dr. Mrs. Lakhbir Dhaliwal of PGI. During that period, his wife developed

intimacy with Dr. Mrs. Lakhbir Dhaliwal and they started visiting each other. Some time in October 1993, Dr. R.S.Dhaliwal came to their house and suggested that he will provide him with the particulars of the dealers and he (the witness) should procure the valves from those dealers and start supplying to him. It was further suggested by him that he will be receiving payments from the patients that; the amount required for purchase of valves would be passed on to him to be given to the dealers and that; the remaining amount would be shared in the ratio of 60:40. (According to the witness, actually the ratio agreed was 50:50 but since the expenses were to be borne by him he has stated that the ratio settled was 60:40). He found the suggestion appealing and

83

contacted the dealers whose particulars were supplied to him by Dr. R.S.Dhaliwal. Contel devices and Medtronic devices were based on in Delhi while Med Tech devices were based in Bombay. According to the witness, he was working under the name Alpha Surgical till about 1995 in whose name he opened account with Punjab & Sind Bank, Sector 17, Chandigarh and then he floated a new concern under the name of Hi-Tech Surgical Comopany and opened the account in that name with Bank of Punjab and thereafter, somewhere around 1998, he floated another venture Health Care Instruments Company and opened the account with Bank of Punjab itself. The witness stated that he used to enter all the transactions in the diary Ex.PW-58/1. He went on to explain the transactions. 70. inspires The Court feels that the statement of PW-58 confidence even dehors the corroborating

evidence. The relations between his family and that of Dr. R.S.Dhaliwal's family are admitted albeit, Dr. R.S.Dhaliwal claims that his wife and the wife of the witness had studied together and were friends. However, there is no evidence to prove this. There were financial transactions between Dr. R.S.Dhaliwal and the concerns floated by

84

Surinder Singh Uppal. The Court

has already discarded

the theory advanced by Dr. R.S.Dhaliwal that those transactions were in respect of the loans taken from him and his wife by Surinder Singh Uppal and his wife. The fact that Surinder Singh Uppal was one of the suppliers of artificial heart valves has been admitted by Dr.

R.S.Dhaliwal in no uncertain terms. No doubt, there are certain improvements made by Surinder Singh Uppal over his statement under Section 164 of the Code of Criminal Procedure (Ex.DD). The fact remains that the

improvements are natural. It is rare to come across the testimony of a witness which does not have a fringe of untruth. However what matters is the truth of the evidence in the main. There would be hardly a person who would be able to reproduce the statement previously made by him. It is not as if a video tape is replayed on the mental screen. Therefore, each time a witness is questioned, there would be some differences as to the details. The testimony of such a witness would be rendered unreliable only if the discrepancies introduced therein go to the root of the matter and shake the basic version. I have gone through the statement made by

85

Surinder Singh Uppal before this Court as well as the one made by him under Section 164 of the Code of Criminal Procedure. The only differences or improvements are in regard to collateral or subsdiary facts or matters of detail. These are hardly a ground to reject his evidence when there is general agreement and consistency in regard to the substratum of the case. 71. All said and done, there is ample corroboration to

the statement of Surinder Singh Uppal and to the entries in the diary Ex.PW-58/1. To say that there is independent evidence of the transactions to which the entries in the diary relate would not be unfair. 72. Faced with this situation, learned counsel for the

accused argued that the entries could, at the best, be taken to be admission made by Surinder Singh Uppal. Hence, the same can be admissible only against him by virtue of Section 18 read with Section 21 of the Evidence Act but not against the accused. 73. To an extent, the counsel for the accused is

right. The entries in the diary are admission but not confession. An admission can be proved only against the

86

maker or his representative while confession, by virtue of Section 30 of the Evidence Act, can be proved against coaccused also. However to say taht there is no provision under which the entries in the diary can be proved against Dr. R.s.Dhaliwal would not be correct. From the statement of Surinder Singh Uppal, it is proved that after he entered in conspiracy with Dr. R.S.Dhaliwal, he started writing diary wherein he used to enter all the transactions viz. patient's name; amount received; amount spent for the purchase of valves; expenses incurred by him; the amount shared by himself and Dr. Dhaliwal. Although, it is not the case olf Surinder Singh Uppal that he had started writing diary on being asked by Dr. R.S.Dhaliwal or as decided by them yet, it cannot be denied that the entries were made in reference to the common intention. Since there were to be not one but many transactions and the profits were to be shared, if, to ensure 'transparency', Surinder singh Uppal started making entries in the diary forthe purpose of record, the entries are relevant and have to be read against both by virtue of Section 10 of the Evidence Act. 74. As the gist of offence of conspiracy lies in the

87

forming

of

agreement

of

conspiracy

and

such

an

agreement can be inferred from the circumstances, especially declaration, act and conduct of the

conspirators, let us take up the instances separately to find out as to what actually happened.

PATIENT: SAWROOP SINGH

As per operation note in the patient file

(Ex.PW-10/21) of Sawroop Singh, he was operated on 24.04.1995 and one 3M SE (Stands for Starr Edwards) valve was replaced. However, as per open heart register Ex.PW-6/1 Entry No.152 at Page No.18 (Ex.PW-26/4) the valve replaced was Machhi. As per diary Ex.PW-58/1 Page No.30 Surinder Singh Uppal received a draft for

Rs.26,000/- from Dr. Dhaliwal on 21.03.1995 for one 3M valve for patient Sawroop Singh. He procured valve for Rs.17,600/- inclusive of tax thereby making profit of Rs.8,400/-. Out of that he paid Rs.4,200/- in cash to Dr. Dhaliwal on 28.03.1995.

PATIENT: BABLI
As per patient file Ex.PW-10/16, Operation Note Ex.PW-14/18, Babli was operated on 01.04.1999 and her

88

Mitral and Aortic valves were replaced with 3 M Starr Edwards and 19 MM St. Jude valves respectively. Entry No.37/1 Ex.PW-26/12 at Page No.103 of the open heart register Ex.PW-6/1 corroborates this. As per Page No.70 of the diary Ex.PW-58/1, Surinder Singh Uppal received draft of Rs.33,165/- from Jasbir Singh on 31.03.1999 for purchase of 3 M valve for patient Babli. Surinder Singh Uppal procured valve for Rs.22,540/-. An amount of Rs.105/- was spent as courier charges. Out of profits, he paid Rs.5,000/- to Dr. Dhaliwal on 03.04.1999. Mark PF is the copy of the bank draft which was given by Jasbir Singh to Surinder Singh Uppal. The bill issued by Surinder Singh Uppal is Ex.PW-60/1 as per which one Starr Edwards Mitral valve serial No.FH7442 was supplied along with 2 coronary P.Cs and 2 ACFs. Otherwise, according to PW-57 Jasbir Singh, he was simply asked to purchase a valve from sikh gentleman in Sector 15, Chandigarh (the description matches that of Surinder Singh Uppal). He nowhere states that apart from valve, something else was also to be procured. It is interesting to note that in the file Ex.PW-8/2 there is a requisition dated 13.13.1999 to Paul Medical

89

Hall whereby along with an Aotic St. Jude heart valve other items were requisitioned. An Auto vent-cum-filter and a coronary perfusion Cannula were amongst those items. From the bills issued by Paul Medical Hall, which are lying in the file, it is proved that these items were issued on 30.03.1999. The short form of Coronary Perfusion Cannula would be Coronary PC and the short form of Auto Vent-cum-filter would be ACF. It is quite strange that despite having procured these items from

Paul Medical Hall the same were again procured from Health Care Instruments Company of Surinder Singh Uppal. If more than one coronary PCs and Auto Ventcum-filters were required, the question arises as to why the same were not requisitioned in the first instance. Therefore, it appears that these items were shown in the bill Ex.PW-60/1 simply to justify the receipt of

Rs.33,165/-. In the file Ex.PW-8/2, there is a bill issued by Paul Medical Hall towards the sale of one 19 MM Aortic St. Jude valve for Rs.45,000/-. This means that one valve was supplied by Surinder Singh Uppal while the other was by Paul Medical Hall. It is not clear as to why in the first

90

instance both the valves were not requisitioned from the same supplier/chemist. There could have been an

argument that the amount lying deposited in the PGI for the treatment of the patient was not sufficient. However this, by itself, does not justify the requisitioning of valves from different suppliers particularly, when there is

nothing on record to indicate that Paul Medical Hall the other supplier did not have Starr Edwards valve in stocks. It is, thus, evident that the objective was patient. to fleece the

PATIENT: SHAUKAT ALI

As per patient file Ex.PW-10/3, Operation Note Ex.PW-14/2, Shaukat Ali was operated on 01.05.2001 and his Mitral valve was replaced with 29 MM TTK Chitra valve. Entry No.1/55 Ex.PW-26/21 at Page No.157 of the open heart register Ex.PW-6/1 corroborates this. As per Page No.92 of the diary Ex.PW-58/1, Surinder Singh Uppal received cash of Rs.32,500/- from Shaukat Ali on 30.04.2001 for purchase of 27 MM valve for patient Shaukat Ali. Surinder Singh Uppal procured valve for Rs.13,500/- inclusive of expenses and out of profits, he paid Rs.9,750/- to Dr. Dhaliwal on 30.04.2001 itself. PW

91

Jeet Ram, the brother of Shaukat Ali appeared in the witness box as PW-41 and stated that on 30.04.2001 Dr. Dhaliwal had introduced him to an agent for the purchase of valve and the agent had taken him to Sector 47-C, Chandigarh, where he had made payment of Rs.32,500/for purchase of valve and the chemist had issued the receipt Ex.PW-41/4. The receipt Ex.PW-41/4 has been issued by Surinder Singh Uppal for Northern Remedies Pvt. Ltd. To justify the receipt of Rs.32,500/-, he has mentioned two additional items i.e. Geotx Patch and R Cardio Pledia system in the bill. The modus operandi is akin to that in Babli's case.

PATIENT: SANJOGITA
As per of operation note she in the patient operated file on

(Ex.PW-10/1)

Sanjogita,

was

27.05.1996 and one 3M SE (Stands for Starr Edwards) valve was replaced. As per open heart register

Ex.PW-6/1 Entry No.310 at Page No.38 (Ex.PW-26/5), the valve replaced was Starr Edwards. As per diary

Ex.PW-58/1 Page No.41, Surinder Singh Uppal received a draft for Rs.35,165/- from Dr. Dhaliwal on 25.05.1996. He incurred expenses of Rs.23,535/- for procuring the

92

valve for patient Sanjogita thereby, making profit of Rs.11,630/-. Out of that he paid Rs.6,000/- in cash to Dr. Dhaliwal on 30.05.1996. The entry in the diary is corroborated by the letter Ex.PW-7/28 written by Raghbir Singh, father of patient Sanjogita, whereby he sought refund of Rs.35,165/- intimating that he had paid that much through cheque to Hi-Tech Surgical Company. This was recommended by Dr. R.S.Dhaliwal on 18.06.1996. Raghbir Singh appeared in the witness box as PW-50 and deposed that he had obtained advance from his

department and deposited the same in PGI.

However,

when surgery was to be performed, Dr. R.S.Dhaliwal called him and told that the concerned clerk who was to issue cheque in favour of the supplier was on leave and if he wanted to get the surgery done immediately, he shall have to pay the amount from himself and get the amount refunded later. According to the witness, Dr. Dhaliwal

gave him the name of the supplier and asked him to get a draft of Rs.35,165/- prepared in the name of that

supplier. He made clear that the draft was handed over by him to Dr. R.S.Dhaliwal and thereafter, on 27.05.1996 Sanjogita was operated and, after some time he moved

93

application

Ex.PW-7/28

for

refund,

which

was

recommended by Dr. R.S.Dhaliwal on the basis of which, the cheque was received from the office of M.S. The cheque so received by him is Ex.PW-32/45. The fact that the accused Dr. R.S.Dhaliwal had asked Raghbir Singh to purchase the valve from Surinder Singh Uppal is

corroborated by Ex.PW-59/3 which is letter head of Dr. R.S.Dhaliwal. The date mentioned on the top is

25.05.1996 which co-incides with the date mentioned in the diary Ex.PW-58/1 at Page No.41. Patient's name and the size of Mitral valve has been written on this letter head under the signatures of Dr. R.S.Dhaliwal, who as discussed above has not denied the same. It is thus,

clear that Dr. R.S.Dhaliwal devised a new method to divert the patients/wards from approved suppliers to Surinder Singh Uppal with a purpose (worth mention here that if the Medical Superintendent Office, where money was lying deposited, had requisitioned artificial valves, it would have been from a supplier whose rate contract had been approved).

PATIENT: DARSHANA DEVI

As per operation note in the patient file

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(Ex.PW-10/5) of Darshana Devi, she was operated on 21.11.1994 and one 3 M Machhi valve was implanted. As per open heart register Ex.PW-6/1 Entry No.98 at Page No.11 (Ex.PW-26/2), the valve replaced was Machhi. As per diary Ex.PW-58/1 Page No.28 Surinder Singh Uppal received a draft for Rs.26,000/- from Dr. Dhaliwal on 17.11.1994 for one 3 M valve for patient

_______________ Devi (The name Darshana is not mentioned). He procured valve for Rs.15,000/on

19.11.1994; deposited Rs.1,000/- in the account of Alfa (Alfa Surgicals company) on 21.11.1994 and, paid

Rs.5,000/- in cash to Dr. Dhaliwal on 23.11.1994. From the statement of PW-28 Manohar Lal, it is proved that at the instance of Dr. Dhaliwal, he got prepared a draft of Rs.26,000/- in favour of Alfa (He means to say Alfa Surgicals) and handed over the same to Dr. R.S.Dhaliwal. This statement is corroborated from the bank record Ex.PW-32/13. The pay-in-slip Ex.PW-33/5 proves that the draft was deposited by Surinder Singh Uppal in the account of Alfa Surgicals company on 21.11.1994.

PATIENT: SURINDER KAUR

As per operation note in the patient file

95

(Ex.PW-10/8) of Surinder Kaur, she was operated on 26.11.1998 and one 3 M (M stands for Mitral) and 9 A (A stands for Aortic) valve were replaced. At Page No.94, Entry No.135/16 (Ex.PW-26/11) of open heart register Ex.PW-6/1, two stickers have been pasted which show that two Starr Edwards valves were implanted in the heart of Surinder Kaur. The description of the valves is as under: (i) Model/size 6120/28 MM/2M

Serial/Lot No.DH08635/96H010 (ii)Sr.No.FH00597 Lot No.97A010 Model No.1260 Size No.23MM 9-A However, as per the bill Ex.PW-35/2 issued by Health Care Instruments in the name of Surinder Kaur the valves supplied to her were of the following

description: (1)SR # FH 00260 Mitral 3 M (2) SR # CR 5210 Aortic 8 A

96

From the statement of PW-35 Nirmal Singh, the husband of Surinder Kaur, it is proved that he approached Surinder Singh Uppal at the instance of Dr. R.S. Dhaliwal for procurement of heart valves and gave him two drafts for approximately Rs.33,000/- each. Surinder Singh Uppal told him that valves will be handed over to Dr. Dhaliwal. Surinder Kaur was operated on 26.11.1998 by Dr. Dhaliwal but, she died on the night intervening

27/28.11.1998. After her death, he visited Surinder Singh Uppal a number of times for the bill. After about 15-16 days Surinder Singh gave him the bill which was dated 30.11.1998. He applied to his employer for

reimbursement and, was met with the objection that money was deposited on 25.11.1998 but, the bill was dated 30.11.1998. He met Dr. R.S. Dhaliwal who affirmed that he had received the valves on 25.11.1998. Then he contacted Surinder Singh Uppal who gave the certificate Ex.PW-35/1 on which Dr. R.S. Dhaliwal gave

endorsement and on the strength of that certificate reimbursement was allowed. From the certificate

Ex.PW-35/1 issued by Health Care Instruments Company, it is evident that the valves supplied by the company to

97

Dr. R.S. Dhaliwal were serial numbered FH00260 and CR 5210. The endorsement of Dr. R.S.Dhaliwal made on 15.02.1999 explains that the valves were received on 25.11.1998 26.11.1998. From the patient file Ex.PW-10/22 of Om and the patient was operated upon

Parkash, it is seen that the he was operated on 18.02.1999. It was a case of double valve replacement. The valves implanted were 21-A Starr Edwards and 30 MK Starr Edwards. From the stickers pasted on his admission form, it appears that the serial number of the Mitral valve was FH 6670 and that of the Aortic valve was CR 05210. It is, therefore, clear that the valve which was received by Dr. R.S.Dhaliwal for Surinder Kaur on 25.11.1998 (Sr. No. CR 05210) was implanted in the heart of Om Parkash on 18.02.1999. It is worth mention that the same details are mentioned in the open heart register Ex.PW-6/1 against entry of Om Parkash at Page No.100. From the patient file Ex.PW-10/4 of Kashmiri Lal, it appears that he was operated for Mitral valve

replacement and one 3 M Starr Edwards Valve was implanted in his heart on 08.12.1998. As per the stickers

98

pasted against the entry of Kashmiri Lal at Page No.94 (Entry No.139/13) of the open heart register Ex.PW-6/1, the serial number of the Mitral valve implanted in the heart of Kashmiri Lal was FH00260. This is the same

serial number which, as per the bill Ex.PW-35/2, was supplied for Surinder Kaur. As per diary Ex.PW-58/1 Page No.65 Surinder Singh Uppal received two drafts for Rs.33,165/- each on 25.11.1998 for patient Surinder Kaur. He procured two valves for Rs.24,500/each, making profit of

Rs.17,330/-. Out of that he paid Rs.8,665/- in cash to Dr. Dhaliwal on 26.11.1998. From the same page of diary Ex.PW-58/1, it is evident that Surinder Singh had received draft of

Rs.33,165/- from Dr. R.S. Dhaliwal for patient Kashmiri Lal. He procured the valve from Kishore Bhatia for Rs.22,500/- and incurred expenses of Rs.105/- as courier charges. Out of the profit, he p;aid cash of Rs.5,000/- to Dr. R.S. Dhaliwal on 10.12.1998. From Page No.68 of diary Ex.PW-58/1, it is proved that on 18.02.1999, Surinder Singh Uppal

99

received a draft of Rs.48,000/- from Dr. R.S. Dhaliwal for patient Om Parkash. On 19.02.1999, he handed over one 8-A valve to Dr. Dhaliwal with cash of Rs.24,000/-. The valve was purchased for Rs.10,000/-. Rs.14,000/- were kept by him as his share. Since only one valve was supplied by Surinder Singh Uppal for patient Om Parkash and there is no evidence on record to prove from where the second valve implanted in the heart of Om Parkash was procured, it is clear that the valve serial No.FH6670 which was meant for Surinder Kaur was implanted in the heart of Om Parkash. From the endorsement made by Dr. R.S.Dhaliwal on Ex.PW-35/1, it appears that the valves meant fro Surinder Kaur were received by him on 25.11.1998 and the patient was operated on 26.11.1998. It is, therefore, not clear as to how the valves were switched. While there could be a mix up in cases of Surinder Kaur and Kashmiri Lal on whose behalf the amount was received by Surinder Singh on 25.11.1998 and 30.11.1998 respectively, there could be no chance of such a mix up in the case of Om Parkash on whose behalf the amount was received much later i.e on 18.02.1999. It is mysterious as to how the

100

valve meant for Surinder Kaur was implanted in Om Parkash. This fact was in the special knowledge of t he accused Dr. R.S.Dhaliwal but, he has not come up with new explanation. At the stage of arguments, learned counsel tried to explain that Surinder Singh Uppal after supplying the particular valves might have brought a complete set of different sizes on the date of operation and since the sizes of the valves supplied were 3M and 8 A but the size of the valves implanted were 2M and 9A respectively, he might have taken 3M and 8A valves back and then again

supplied them for Om Parkash and Kashmiri Lal. This contention appears attractive but, has no base as Surinder Singh Uppal has categorically stated that he never used to take operation theatre. In any case, it is proved that Dr. R.S.Dhaliwal got share in the profits which Surinder Singh Uppal made by charging exorbitant price from Surinder Kaur as well as Kashmiri Lal and Om Parkash. the set of valves to the

101

PATIENT: GULZAR
As per operation note Ex.PW-15/2 in patient file Ex.PW-10/2, Gulzar was operated on 24.6.1994 and one 3 M Machhi valve was implanted. Page No.5 of open heart The entry No.45 at Ex.PW-6/1 also

register

mentions Machhi valve having been implanted in Gulzar. PW-39 (the father of Gulzar) says that, as directed by Dr. Dhaliwal he paid Rs.26,000/- to him towards cost of heart valve and Dr. Dhaliwal handed over the bill Ex.PW-39/2 to him. In the bill Ex.PW-39/2, there is overwriting in the column of amount, whereby the amount of Rs.22,000/has been changed to Rs.26,000/-. In the column of particulars, the words 'Starr Edwards' have been added in the portion Q-39. According to the Handwriting Expert, this is in the hand of the accused. I have gone through the record to ascertain as to whether the writing in the portion Q-39 on the bill Ex.PW-39/2 is actually that of Dr. R.S.Dhaliwal. I have come across many documents on which there is no dispute about the writing of Dr. R.S.Dhaliwal. Out of those documents, the following are being referred to specifically:

102

1.

The noting Ex.PW-8/35 in the patient file of Jigri Singh.

2.

Application

dated

26.06.1985

Ex.PW-13/14 written by Dr. R.S.Dhaliwal to the Director PGI, Chandigarh. 3. The Discharge and follow up card of patient Vikram in the file Ex.PW-10/23 containing the portion A-109 to A-112. In the noting Ex.PW-8/35 the accused has used the word 'Starr Edwards'. This writing matches the writing in portion Q-39 in all its details and its particulars. In the application Ex.PW-13/14, the accused has used the word 'forwarded'. The manner of execution of letters w,a,r,d and the manner in which they have been joined is identical with the portion Q-39. Same is the case with regard to the word 'forwarded' used in Q-109 and Q-112 as compared to the word 'Edwards' in Q-39. In portion

A-109 of the discharge card of Vikram the manner of writing the letter 'r' and joining thereof with another letter 'r' in the word 'arrange' is identical in execution and particulars with the letters 'rr' in the word 'Starr' in Q-39.

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Having looked at the record with as much effort as it could, this Court has also gone through the opinion evidence and it finds itself in agreement with the expert. While the prosecution has examined the

Government Expert as PW-59 Dr. Ravinder Sharma and the defence has examined a private witness Jassy Anand as DW-8. Naturally, the opinion of the Government Expert is in favour of the prosecution while that of the private expert is in favour of the defence. However, the Court has considered the opinion of both the experts without any bias or prejudice keeping in mind the settled principle that the evidentiary value of the defence witness is the same as that of prosecution witnesses. It is worth mention that while standard

writing/signatures were forwarded to the Government Expert along with the disputed writings/signatures, the private expert obtained the specimen writings of Dr. R.S.Dhaliwal on her own and compared them with the disputed writings. Dr. R.S.Dhaliwal had moved an

application seeking permission from the Court to the expert Jassy Anand to take photographs of his disputed handwritings and admitted/specimen signatures

104

/handwritings from the court file

and to

take his

specimen signatures and handwriting in the court. Vide order dated 23/04.2008, permission was granted to the expert to take photographs of the disputed handwriting and admitted /specimen signatures /handwriting of

accused Dr. R.S.Dhaliwal from the court file. At the same time, it was made clear that no indulgence of the court was required insofar as the taking of the specimen signatures/handwritings of Dr. R.S.Dhaliwal by the expert was concerned, as this could be done by the expert at her own level. This, however, did not mean that the accused could select the mode of proof. Had the accused Dr. R.S.Dhaliwal been serious, he would have asked for the summoning of the record having his handwriting from the PGI so as to be compared with the questioned writing. Instead he opted to lend his specimen writing before the expert engaged by him. It is interesting to note here that in crossexamination, DW Jassy Anand was put a specific question under which provisions of law Dr. R.S.Dhaliwal had given his specimen writings. In reply, she stated that Dr.

R.S.Dhaliwal was allowed by the court to give his

105

specimen writings in the court. In response to another question as to in whose presence, the specimen writings of Dr. R.S.Dhaliwal were taken by her, the expert replied that the same were taken in the presence of the counsel and the ahlmad as ordered by the court. On all the counts, the expert appears to have moulded her answers cleverly so as to convey that the since court had allowed the taking of the specimen writings in the court,

therefore, she took the specimen writings in the presence of the ahlmad. Needless to say that there was no such direction. It was made clear that the specimen signatures could be taken by the expert at her own level. It was never specified that the specimen writings were to be taken in the court in the presence of the ahlmad. Even otherwise, the signatures of the ahlmad were not taken as a token of the fact that the specimen writings were taken in his presence. It appears that the specimen signatures/writings of Dr. R.S.Dhaliwal were taken by the expert in her own laboratory. But for the reasons best known to her she is claiming that the same were taken in the court.

106

The

possibility

of

Dr.

R.S.Dhaliwal

having

changed his writing under the expert supervision cannot, thus, be ruled out. The disputed writings were available when the specimen writings were taken by expert Jassy Anand. Changing the speed, the wrist movement, the size and spacing between the letters, the alignment, the slant and other aspects while having the disputed writings in front would not have been a difficult task particularly, when there was an expert to guide. While drawing this inference, the court has exercised utmost caution in not getting swayed by surmises and conjectures. The Court is alive and cautious that an inference is to be drawn not from another inference but from facts. The manner in which the facts are presented is also a relevant consideration. Therefore, the court has to be at its intuitive best to separate grain from the chaff. It is a fact that in respect of the same FIR, two separate chargesheets were filed. One is the instant chargesheet and the other was in respect of those cases in which Dr. R.S.Dhaliwal was engaged in conspiracy with

107

Paul Medical Hall. The expert Jassy Anand tendered her common opinion in both the chargesheets. Ordinarily evidence of one case cannot be read into other case but, in view of this peculiar situation where the report of the expert is common in both the chargesheets and the

expert has rendered common grounds, in order to appreciate the opinion/report, the documents which are not the part of this chargesheet but, have been referred to in the report/opinion by DW Jassy Anand can be looked into for the limited purpose of finding out the veracity of the opinion. While taking specimen handwriting of Dr.

R.S.Dhaliwal, DW Jassy Anand has, inter alia, taken the following specimen: Please make payment from the balance left. Rest will be paid by patient's attendant. DW Jassy Anand has compared the above

portion, marked SH by her, with the disputed writing Q-68 Ex.PW-13/8 in Chargesheet No.2. She has come to the conclusion that the writing Q-68 along with other disputed writings is a result of copied forgery. Hence, for

108

the limited purpose of comparison, this court has no option but to look into the writing Q-68 in the

Chargesheet No.2. At the same time, an endeavour has to be made to find out as to whether in chargesheet No.2, Dr. R.S.Dhaliwal ever denied the noting Q-68 when he stepped in the witness box. I have found that there is no such denial. Therefore, the denial by PW-8 is virtually meaningless. It is worth mention that in the specimen SH, Dr. R.S.Dhaliwal had lent his writing as well as

signatures. DW-8, while making comparison, ignored the signatures and just concentrated on the writing as would be evident from the photograph Ex.DW-8/25. It is evident that the segregation of writing from the signatures was done deliberately as no opinion as to the forgery of the signatures would have been possible. The portion Q-68 is the noting given by Dr. R.S.Dhaliwal on the back of his letter Ex.PW-8/33 (in Chargesheet No.2) in response to the information sought by the Office of Medical

Superintendent. It is reiterated, even at the cost of repetition that although this noting was in context of patient Jigri Singh yet, the same is being considered here for the sole purpose of testing the genuineness of the

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opinion

rendered

by

DW-8.

Dr.

R.S.Dhaliwal

never

claimed that his signatures in the portion Q-68 are genuine but the writing is not that of him. Even

otherwise, it is not understandable as to why Dr. R.S.Dhaliwal would affix his signatures with date on the back of the letter in blank portion and why would somebody else copy his writing by giving a note above the signatures. It is evident to naked eye that the entire note with signatures has been executed in one go with same pen. The note is not out of the context as would be evident from the letter Ex.PW-8/33 and the notings Ex.PW-8/34, Ex.PW-8/35 and the subsequent notings given on the face of the letter Ex.PW-8/33. In fact, nobody stood to gain by forging this noting Ex.PW-13/8. So long as there is no dispute about the noting Ex.PW-8/35, no question mark can be raised against the noting Ex.PW-13/8. But, in their wisdom the accused R.S.Dhaliwal and DW-8 have ventured to prove that the noting Ex.PW-13/8 is a result of copied forgery. This sole instance shows the worth of the opinion rendered by DW-8. To say that she has gone out of the way in supporting Dr. R.S.Dhaliwal, who had engaged her, would

110

not be exaggregation. Even regarding the remaining questioned writings, DW-8 has termed natural variations as inherent dis-similarities. If there could be

dissimilarities between the specimen SH and the portion Q-68, the fact that there are dis-similarities between the remaining questioned writings and the specimen writings is meaningless. Even if, it is assumed that while lending

specimen, Dr. R.S.Dhaliwal was not tutored by DW-8 or that he did not try to change his writing deliberately, the mere fact that according to DW-8 herself there are dissimilarities between specimen SH and disputed writing Q-68, the dissimilarities as highlighted by her between the other specimen and questioned writings, have to be ignored being natural variations. While expressing so, the Court has taken the noting portion Q-68 (Ex.PW-13/8) as duly proved to be in the hand of Dr. R.S.Dhaliwal and none else. (It is made clear again that Q-68, Ex.PW-8/33, Ex.PW-8/34, Ex.PW-8/35 and Ex.PW-13/8 are the

documents which relate to Chargesheet No.2 and not to this chargesheet but have been looked into for the

limited purpose of testing the genuineness of the opinion

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of DW Jassy Anand). It is, thus, evident that instead of assisting, DW Jassy Anand has tried to mislead the court in order to serve the interests of accused Dr. R.S.Dhaliwal who engaged her. To justify her opinion, she has come out with general observation that the specimen writings have been written with excellent speed while the disputed writings have been written with slow and medium speed that; the specimen writings have been written with forearm-cum-wrist movement whereas the disputed

writings have been written with wrist movement only that; the writer of the specimen writings is in the habit of writing bigger size letters as compared to the writer of the disputed writings where the letters are of small to medium size that; the specimen writings exhibit well connectivity of letters and strokes as compared to the disputed writings where there are pen lifts almost after each letter and sufficient spacing between the words and that; line quality is much superior in the specimen writings as to be compared to the disputed writings etc. I have looked into these aspects and have found that there is virtually no difference between the specimen and

112

disputed writings especially between Q-39 on the bill Ex.PW-39/2 and SA and SB. Of course, natural variations are there. Hence the over zealous but partisan opinion rendered by DW-8 has to be ignored. As against this, the court finds opinion rendered by PW-59 to be truthful, unbiased and convincing.

In Murari Lal Vs. State of M.P. AIR 1980 (SC) 531, the Hon'ble Supreme Court after considering a catena of precedents held that where the reasons for the opinion of handwriting expert are convincing and there is no reliable evidence showing a doubt, the uncorroborated testimony of the expert may be accepted. The Hon'ble Apex Court observed:An expert deposes and not decides. His duty is to furnish the Judge with the necessary scientific criteria for testing the accuracy of his conclusion so as to enable the Judge to form his own independent judgment by the

application of these criteria to the facts proved in evidence ------------. By comparing the writing itself the Court would not assume to itself, the role of an expert. Section 73 of the

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Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of a person by whom it purports to have been written. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative text book and the Court's own experience and knowledge. But discharge it must, its plain duty with or without expert with or without other evidence. Murari Lal's case (supra) acts as a beacon light to guide the Courts as to how the opinion evidence of handwriting expert is to be appreciated. No doubt, the science of identification of handwriting is not as perfect as the science of identification of finger prints is. However, in cases where the Court comes to the conclusion about the identity of the handwriting in dispute with or without expert opinion, no further corroboration is required and the accused can be convicted accordingly. Learned defence counsel would point out that the case of the prosecution is that in the bill Ex.PW-39/2 the

114

figure of Rs.20,000 was changed to Rs.26,000/-. This, according to the counsel, is manipulation by the

investigating agency. Otherwise, it is evident even to naked eye that the original figure was 22,000 and not 20,000. Learned counsel would point out that the

prosecution has come up with figure of Rs.20,000 because in the diary Ex.PW-58/1 at page 35 Surinder Singh Uppal has mentioned having received Rs.20,000/from Dr. R.S.Dhaliwal for purchase of 3 M valve for Gulzar. To my mind, there is no substance in the above contention. The Investigating Officer may have reached

wrong conclusion due to some mistake. No doubt at Page No.25 of the diary Ex.PW-58/1 it is mentioned that on 13.05.1994 Surinder Singh Uppal received Rs.20,000/from Dr. R.S.Dhaliwal for purchase of one 3 M Valve for Gulzar. But the reason why he issued bill of Rs.22,000/is clear from this very page of the diary in which, at the bottom, it is mentioned that Dr. R.S.Dhaliwal had

received cash of Rs.22,000/- from Gulzar. The only inference to be drawn from these entries is that Dr. R.S.Dhaliwal paid Rs.20,000/- to Surinder Singh Uppal for

115

procuring valve for Gulzar but also informed that he had received Rs.22,000/- from the patient. This is why Surinder Singh Uppal issued the bill for Rs.22,000/-. Having cheated his partner-in-crime by falsely disclosing that he had received Rs.22,000/- from Gulzar, whereas, he had actually received Rs.26,000/-, the accused

appears to have made the additions and alterations in the portion Q-39 and Q-39-C on the bill Ex.PW-39/2. Learned defence counsel further contends that in the absence of any direct evidence that accused Dr. R.S.Dhaliwal came in possession of the bill Ex.PW-39/2 it cannot be said that he had an opportunity to make the additions/alterations. Going a step further learned

counsel argues that nobody saw Dr. R.S.Dhaliwal making the additions /alterations in the bill, therefore, simply on the basis of the expert opinion any such conclusion would be unwarranted. The contention is without merit. PW-39 has categorically stated that Dr. R.S.Dhaliwal had handed over bill Ex.PW-34/2 to him. He does not say, neither any suggestion was given to him that he had received the bill directly from the Chemist/Supplier. Therefore, to say that

116

Dr. R.S.Dhaliwal had no occasion to make interpolations / additions will not be correct. No doubt, PW-39 contradicted himself by stating that immediately after receiving the money Dr. Dhaliwal had handed over the bill Ex.PW-39/2, whereas in the statement recorded under Section 161 of the Code of Criminal Procedure, he stated that over to him after the is the bill was handed of Gulzar. This is

discharge not

contradiction,

however,

material.

What

important is that the bill was handed over to him by Dr. Dhaliwal and not by the supplier. As to the stage when the bill was handed over, the witness must have made estimate on the spur of moment. No gain saying the fact that the contradiction is only on the matter of detail and does not touch the core of the issue. Merely because, nobody saw Dr. R.S.Dhaliwal making the additions/alterations in the bill, it does not mean that there is no evidence to prove the authorship. No gainsaying that the proof of authorship of a document/ signature is proof of a fact like any other fact and as held in Mubarak Ali Ahmad Vs. State of Bombay AIR 1957 SC 657, the evidence relating thereto may be

117

direct or circumstantial. It may consist of direct evidence of a person who saw the document being written /signed. It may be the proof of the handwriting of the contents or the signatures by one of the modes provided in Sections 45 & 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the documents and other external evidence. Taking everything into account the Court has no doubt that it was Dr. Dhaliwal and none else who wrote the words Starr Edwardsin the portion Q-39 of bill Ex.PW-39/2. There should be no doubt that it was he who changed the figure of Rs.22,000/- to Rs.26,000/- with dishonest intent to justify the charging of Rs.26,000/-.

PATIENT: SHARMILA
As per operation note Ex.PW15/19 in Patient File Ex.PW10/15 of Sharmila, she was operated on

16.01.1995 and one 3M Machhi artificial heart valve was implanted. As per open heart register Ex.PW6/1 entry

No.114 at page 13 (Ex.PW26/3) the valve replaced was 3M Machhi. As per diary Ex.PW58/1 page 29, on

06.01.1995 S.S.Uppal received draft for Rs.26,000/- from

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Dr. Dhaliwal for 3M valve for the patient Sharmila. He purchased valve for Rs.15,000/- on the same day and, after deducting the expenses, paid Rs.5,000/- to Dr. Dhaliwal as his share out of excess amount obtained from the patient for purchase of one valve. Hence, it is proved that Dr. Dhaliwal in conspiracy with Surinder Singh Uppal obtained Rs.26,000/- from the patient Sharmila towards the cost of one valve against the actual cost of

Rs.15,000/-.

PATIENT: DOLA RAM

From the patient file Ex.PW-10/18, admission form Ex.PW-15/11, it is proved that Dola Ram was admitted in PGI on 20.04.1996 with provisional diagnosis 'MR'. He was, however, discharged without surgery on 29.05.1996. His father PW-22 also says that he was discharged without surgery on 29.05.1996 and that after discharge he died on 19.07.1996. In the open heart register, there is no entry of Dola Ram. It is thus, proved beyond doubt that Dola Ram was never operated. Since Dola Ram was sponsored by Himachal Pradesh

Government, a sum of Rs. 95,000/- was deposited by the Government in the P.G.I. The receipt in this behalf is

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Ex.PW-7/3. On 04.05.1996, Dr. R.S.Dhaliwal wrote letter Ex.PW-7/4 referring to the fact that Rs.95,000/- have been deposited in the account of PGI vide receipt No.64509, dated 03.04.1996 (this co-relates with the receipt Ex.PW-7/3). Vide this letter, Dr. R.S.Dhaliwal requested the Medical Superintendent that in order to get artificial heart valve for Dola Ram, a draft in the sum of Rs.37,165/- be prepared in the name of M/s. Hi-tech Surgical Company and be sent to him for despatching to the Company. From Ex.PW-7/6, it is proved that Cheque No.139623, dated 03.09.1996 was issued in favour of M/s. Hi-tech Surgical Company on behalf of patient Dola Ram and that Ms. Satnam Kaur PW-20, had received the cheque from the office of Medical Superintendent on 08.10.1996. Ms. Satnam Kaur, who was the Stenographer in the department of CTVS and hence, attached with Dr. R.S.Dhaliwal, admitted having received the cheque from the office of Medical Superintendent Vide Ex.PW-7/6. Although, she stated that she was not recollecting whether the cheque was handed over to Dr. R.S.Dhaliwal or whether it was sent to the supplier yet, in response to the Court question as to on whose directions she collected

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the cheque, she made it clear that it was on the directions of the Head of Department (for short HOD). There is no doubt that Dr. R.S.Dhaliwal was the HOD at the relevant time. PW-20 Ms. Satnam Kaur tried her best to mislead the Court and to avoid the question as to whether she had handed over cheque to Dr. R.S.Dhaliwal or whether it was sent to the supplier. However, from entry at Page No.44 of the diary Ex.PW-58/1, it is clear that Surinder Singh Uppal had received the cheque from Dr.

R.S.Dhaliwal on 08.10.1996 itself. It is quite strange that, according to PW Ms. Satnam Kaur, it was her duty to collect cheques from the Medical Superintendent Office but, when she was questioned by the Court as to on what basis she was saying so, she faltered and answered that there was no written instruction in this behalf and that there used to be instructions by the HOD which were to be followed. She further stated that no separate

instructions for individual cheques used to be issued and it was a routine affair. Again a court question was put as under:What do you mean by routine affair and what

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were the instructions issued? The following is the answer:No such instructions were given but still it was routine I cannot explain what do I mean by routine. This was followed by the Court Wasn't it the duty Office to question:of Medical send the

Superintendent

cheques to your department? The answer was as follows:Yes, it was their duty but we used to receive messages to collect cheque as there was shortage of staff in the office of Medical Superintendent.

As examination

the

witness

had

stated the

in

her

crossor his

that

whenever

supplier

representative used to come to collect the cheque by hand his signatures as acknowledgment were being taken in a register maintained separately, she was asked if she could produce the register. She replied that she was not in a position as she had been transferred. The entire

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statement of PW-20 would make it clear that through out her effort was to save Dr. R.S.Dhaliwal. despite having admitted that she This is why collected

had

cheque/draft from the office of Medical Superintendent on the directions of HOD, she avoided the issue as to whether she had handed over the same to Dr.

R.S.Dhaliwal. However, from the letter Ex.PW-7/4 itself, it is evident that Dr. R.S.Dhaliwal wanted the draft to be sent to him. This coupled with the fact that he had deputed PW-20 proves that PW20, after collecting from the office of Medical Superintendent, handed over the cheque/draft to him. The cheque is Ex.PW-31/1. The fact that it was presented on 10.10.1996 in Bank of Punjab, Chandigarh is borne out from the face of the cheque. From the statement of account Ex.PW-12/16-A, it is evident that this cheque was encashed and the amount was credited to the account of Company. It is clear that when the letter Ex.PW-7/4 was written by Dr. Dhaliwal, the patient was lying admitted in the ward. Therefore, the writing of the letter was justified albeit, there was no justification for the request that the M/s. Hi-tech Surgical

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draft be sent to him to be despatched to the company. The fact remains that by the time the patient was discharged on 29.05.1995 the cheuqe by the Medical Superintendent Office had not yet been prepared. PW Satnam Kaur received the cheque from the Office of Medical Superintendent on 08.10.1996 on the direction of Dr. R.S.Dhaliwal. She made this clear in response to the court question. There was no cross-examination on behalf of Dr. R.S.Dhaliwal that he had never directed her to collect the cheque. The question, therefore, remains as to why did Dr. R.S.Dhaliwal direct PW Satnam Kaur to collect the cheque from the Office of Medical

Superintendent when he knew that the patient had already been discharged and now there was no need to purchase the valve? While being cross-examined, Dr. R.S.Dhaliwal tried to explain his noting Ex.PW-7/7 by saying that he did not call for the file record from his subordinate office before making the noting because the patient had already been discharged on the request of his father in May 1996 and the file came to him in March 1997. Moreover, the patient had died at his house in 1996.

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While trying to explain one thing Dr. R.S.Dhaliwal got caught in the web weaved by himself. He ended up admitting that Dola Ram had died in 1996 itself. He has not made it clear as to how, when and, from whom he came across this fact regarding the death of Dola Ram. Therefore, it can be safely inferred that when Dr. R.S.Dhaliwal directed PW Satnam Kaur to collect the

cheque from the Medical Superintendent Office, he knew that Dola Ram had died. Perhaps, this is the reason he took chance to make money thinking that the patient having died nobody including funding agency was going to question. It is interesting to note that in the file

Ex.PW-7/1, there is a bill Mark A-1 issued by Surinder Singh Uppal for High Tech Surgical Company against supply of 3M Starr Edwards Mitral heart valve for Rs.37,165/- for Dola Ram care of PGI, Chandigarh. In

the column of transporter, it is mentioned that the valve has been delivered by hand. In the column of reference, the name of Dr. R.S.Dhaliwal stands mentioned. This bill dated 01/02.07.1996 was verified by Dr. R.S.Dhaliwal on 02.07.1997. While Dr. R.S.Dhaliwal has tried to explain as

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to why he made the noting Ex.PW-7/7, he has no explanation to offer as to under what circumstances did he verify the bill Mark A-1. If there had been no delivery of the valve, the question of verification of the bill did not arise. Even if, for the sake of argument, it is assumed that Dr. R.S.Dhaliwal made the noting Ex.PW-7/7 in routine without bothering to go through the record, the verification of the bill Mark A-1 is not explainable. When the patient had already been discharged on 29.05.1996, receipt of the valve, (if it was supplied), on

01/02.07.1996 is not understandable. If the valve was actually supplied by Surinder Singh Uppal, question arises as to for whom because, by that time Dola Ram was no more admitted in the ward. If the valve was not supplied and it was only the bill which was issued, again the question arises as to why the bill was verified by Dr. R.S.Dhaliwal. Viewed from any angle, there remains no substance in the explanation that it was the duty of the supplier to refund the amount to the PGI or that Dr. R.S.Dhaliwal was not to figure in at any stage in that respect. Coming back to the noting Ex.PW-7/7, the

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explanation given by Dr. R.S.Dhaliwal is that the query was what should be done in case of balance money? According to him, he presumed that money had been refunded by the supplier and, therefore, he gave the noting that the balance should be refunded to the funding agency. I have gone through the file. In fact, there was no such query as is being canvassed by Dr. R.S.Dhaliwal. Rather, the noting was that before sending the cheque for balance amount of Rs.57,835/- to the funding agency the comments of Dr. R.S.Dhaliwal should be obtained. The purpose was not to ask Dr. Dhaliwal as to what should be done with the balance money. The objective was to have his comments as to the genuineness of the amount spent as he was the performing surgeon and to be sure that nothing else was due to PGI. The moment he replied that the balance should be refunded to the funding agency it implied that everything was all right. It is not that he was so naive as to have not understood the query. He

understood and replied quite cleverly with dishonest intention. At this stage, it would be worth notice that the

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bill Mark A-1 has been read in evidence though, it has not been exhibited. The reason is that this bill forms part of the file which has been exhibited as Ex.PW-7/1.

Therefore, all the papers forming part of the file can be read in evidence without each one being exhibited separately.

PATIENT: SANTOSH DEVI

As per the discharge summary Ex.PW-48/2

patient Santosh Devi was operated on 03.09.1996 and her Mitral valve was replaced with 2M Starr Edwards valve. As per open heart register Ex.PW-60/1 Page No.43 also the valve replaced was Starr Edwards. She was a private grant patient and a sum of Rs.1,00,000/- stood deposited in the PGI for her treatment. Referring to this, Dr. R.S.Dhaliwal wrote letter Ex.PW-7/11 to the Medical Superintendent, PGI for making a draft for Rs.37,165/- in the name of High Tech Surgical Company. He also requested Medical Superintendent for sending the draft to him for despatching to the company. Pursuant thereto, the draft was prepared. From Ex.PW-7/12 coupled with the statement of PW-20 Satnam Kaur, it is proved that she received the cheque Ex.PW-31/2 on 02.09.1996. As

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per diary Ex.PW-58/1 Page No.43 Surinder Singh Uppal received the draft for Rs.37,165/- from Dr. R.S.Dhaliwal for purchase of one 3 M valve for Santosh Devi on 02.09.1996 itself. Out of the profits, he paid Rs.7,000/to Dr. R.S.Dhaliwal.

PATIENT:BALWINDER SINGH
As per patient file Ex.PW-10/12, Operation Note Ex.PW-15/8, Balwinder Singh was operated on

11.11.1996 and his Mitral valve was replaced with 3 M Starr Edwards valve. Entry Ex.PW-26/7 at Page No.48 of the open heart register Ex.PW-6/1 also corroborates this. As per Page No.45 of the diary Ex.PW-58/1, Surinder Singh Uppal received a draft for Rs.38,165/- from Dr. R.S.Dhaliwal on 28.10.1996 for purchase of one 3 M valve for Singh. The valve was purchased for Rs.23,000/-. The profit was divided equally between Surinder Singh Uppal and Dr.Dhaliwal. Miscellaneous expenses were borne by Surinder Singh Uppal.

PATIENT:MOHINDER KAUR
As per patient file Ex.PW-10/25, Mohinder Kaur was operated on 03.06.1997 and her Mitral valve was replaced with 3 M Starr Edwards valve. Entry

129

Ex.PW-26/10 at Page No.61 of the open heart register Ex.PW-6/1 also corroborates this. As per Page No.54 of the diary Ex.PW-58/1, Surinder Singh Uppal received a draft for Rs.39,165/from Dr. R.S.Dhaliwal on

04.06.1997 for purchase of one 3 M valve for Mohinder Kaur. The valve was purchased for Rs.23,000/-. The

profit was shared equally. PW-36 M.S. Manjh says that Dr.Dhaliwal had told him the name of the concern in whose favour the draft was prepared and that the bill for the valve was also given to him by Dr.Dhaliwal.

PATIENT:SAVITRI DEVI
As per patient file Ex.PW-10/7, Savitri Devi was operated on 13.01.1997 and her Mitral valve was

replaced with 3 M Starr Edwards valve. Entry Ex.PW-26/8 at Page No.51 of the open heart register Ex.PW-6/1 also corroborates this. PW-44 Netar Singh, the husband of the patient says that Dr. R.S. Dhaliwal had given him a slip with name of the supplier written thereon and at his instance he had got the draft for Rs.38,000/- prepared in favour of Hi-Tech Surgical and had handed over the draft to Dr. R.S.Dhaliwal. As per entry at Page No.47 of diary Ex.PW58/1,

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Surinder Singh Uppal received draft of Rs.38,165/- for one 3 M valve. The name of the patient on whose behalf the amount was received is not mentioned. However, the details tally with Savitri Devi. Surinder Singh Uppal procured the valve for Rs.20,000/-. Rupees Seventy were the expenses. Out of profits, he gave Rs.7500/- to Dr.Dhaliwal.

PATIENT: VIKRAM SINGH

As per patient file Ex.PW-10/23, Vikram Singh was operated on 27.05.1997 and his Mitral and Aortic valves were replaced with 3 M and 9 A Starr Edwards valves. Entry Ex.PW-26/9 at Page No.60 of the open heart register Ex.PW-6/1 also corroborates this. As per Page No.52 of the diary Ex.PW-58/1, Surinder Singh Uppal received two drafts for Rs.39,165/- each on 22.05.1997 from Dr. R.S.Dhaliwal for Vikram son of Ashok Kumar for purchase of one 3 M and one 9 A valve. PW-24, the father of the patient says that he was asked by Dr. R.S.Dhaliwal to get two bank drafts for

Rs.39,165/- each favouring Health Care Instruments Company and accordingly he got prepared the drafts and, as directed by Dr. R.S.Dhaliwal handed over both the

131

drafts to him. The prosecution has proved on record one of the drafts Ex.PW-24/1. As per the diary Ex.PW-58/1, Surinder Singh Uppal procured the valves for Rs.23,000/each and out of profits paid Rs.16,000/- (Rs.8,000/- +

Rs.8,000/-) to Dr. R.S.Dhaliwal.

PATIENT: BALDEV SINGH

As per patient file Ex.PW-10/11, Operation Note Ex.PW-14/11, Baldev Singh was operated on 08.02.2000 and his Mitral valve was replaced with 21 mm Shree Chitra valve. Entry Ex.PW-26/13 at Page No.126 of the open heart register Ex.PW-6/1 also corroborates this. As per Page No.80 of the diary Ex.PW-58/1, Surinder Singh Uppal received cash of Rs.45,000/- from Jasbir Singh on 04.02.2000 for purchase of 27 mm valve for Baldev Singh. PW-27 Mohinder Kaur, the mother of the patient says that Dr.Dhaliwal had asked her to purchase the valve from sector 15 and as such she along with her son went at that address and made a payment of Rs.45,000/to a tall sikh gentleman who represented to her that the valve would be delivered in the hospital before surgery. She could not remember the complete address but, the description given by her matches that of Surinder Singh

132

Uppal who has office in Sector 15, Chandigarh.

Her

statement corroborates the entry in the diary to the extent that cash of Rs.45,000/- was paid to Surinder Singh Uppal. As per the entry in the diary, Surinder Singh Uppal procured the valve of Rs.15,250/-. Rs.1,023/- were the expenses borne by him for trip to Delhi. Out of the profits, he paid Rs.20,000/- to Dr. R.S.Dhaliwal on 09.02.2000. From the statement of PW-21, the C&F Agent of TTK Health Care Limited, it is proved that the maximum retail price of TTK heart valve during the relevant period was Rs.19,900/-. No doubt the valve purchased for Baldev Singh was 27 MM TTK. But, the one implanted was 21 MM TTK but this does not matter. Going by the general defence version, exact size of the valve used to be determined only after opening the chest. Therefore, the possibility of the valve supplied by Surinder Singh Uppal exchanged with the valve of different size for being implanted in the heart of Baldev Singh cannot be ruled out. How and from whom the valve was exchanged the fact which was in

special knowledge of Dr. R.S.Dhaliwal. Prosecution could not have possibly led evidence on that aspect. But the

133

fact remains that valve was purchased and implanted and the sum charged by for the valve was Rs.45,000/- against MRP of Rs.19,900/-.

PATIENT: LEELA DEVI

As per patient file Ex.PW-10/14, Operation Note Ex.PW-14/16, Leela Devi was operated on 21.03.2000 and her Mitral valve was replaced with 27 MM TTK Shree Chitra valve. Entry Ex.PW-26/14 at Page No.129 of the open heart register Ex.PW-6/1 also corroborates this. As per the admission form Ex.PW-14/15, father's name of patient Leela Devi is Gali Ram. Gali Ram appeared in the witness box as PW-29 and stated that Dr. R.S.Dhaliwal had given a chit mentioning the address of the company from where valve was to be purchased. According to him, he handed over the chit to his brother-in-law who paid Rs.35,000/- to the concerned person of the company towards the cost of one valve. There is an entry No.131 at Page No.81 of the Diary Ex.PW-58/1 as per which Surinder Singh Uppal had received cash of Rs.35,000/from Gali Ram on 13.03.2000 for purchase of 27 M valve for Maya Devi. (It appears that instead of Leela Devi, Surinder Singh Uppal wrongly mentioned the name of the

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patient as Maya Devi but the bill Ex.PW-18/49 was issued in the correct name i.e. Leela Devi. Therefore, this entry No.131 in the diary can be safely related to patient Leela Devi). As per the diary, Surinder Singh Uppal purchased valve for Rs.15,250/-. Rs.830/- were the

expenses for his trip to Delhi. Out of the profits, he paid Rs.10,000/- to Dr. R.S.Dhaliwal on 15.03.2000.

PATIENT: AMARJIT KAUR

As per patient file Ex.PW-10/9, Operation Note Ex.PW-14/9, Amarjit Kaur was operated on 27.04.2000 and her Aortic valve was replaced with 21 MM TTK Chitra valve. Entry No.59/12 Ex.PW-26/15 at Page No.132 of the open heart register Ex.PW-6/1 also corroborates this. As per Page No.82 of the diary Ex.PW-58/1, Surinder Singh Uppal received a sum of Rs.45,000/- from Satnam Singh on 24.04.2000 for 21 MM valve for patient Amarjit Kaur. Out of that Surinder Singh Uppal paid cash of

Rs.20,000/- to Dr. R.S.Dhaliwal on 28.04.2000. The valve was procured on 30.04.2000 for Rs.15,250/-. PW-37 Satnam Singh, the husband of Amarjit Kaur says that before surgery Dr. Dhaliwal had asked him to deposit Rs.45,000/- with a sikh gentleman, resident of Sector 15,

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Chandigarh for artificial heart valve and, as such he had gone to the address given and deposited Rs.45,000/- with that sikh gentleman, whose name he could not recollect now. The witness further stated that the supplier had issued a kachha receipt and had represented that the valve would be delivered to Dr. Dhaliwal before surgery.

PATIENT:SUNDER SHYAM
As per patient file Ex.PW-10/10, Operation Note Ex.PW-14/9, Sunder Shyam was operated on 02.05.2000 and his Mitral valve was replaced with 27 MM TTK Chitra valve. Entry No.62/2 Ex.PW-26/16 at Page No.133 of the open heart register Ex.PW-6/1 corroborates this. As per Page No.82 of the diary Ex.PW-58/1, Surinder Singh Uppal received Rs.35,000/from Shaib Ram on

01.05.2000 for purchase of one 27MM valve for patient Sunder Shyam. Surinder Singh Uppal procured the valve for Rs.15,250/-. Out of the profits, he paid cash of Rs.10,000/- to Dr. Dhaliwal on the same day. From the admission form Ex.PW0-14/8, it is clear that Shaib Ram is the father's name of the patient Sunder Shyam. The bill issued in favour of Sunder Shyam is Ex.PW-18/1. The date of issue is 02.05.2000. According to PW-25 Dilbagh

136

Rai who is brother-in-law of Sunder Shyam the amount was deposited with Surinder Singh Uppal on the directions of Dr. R.S. Dhaliwal.

PATIENT: AMRITI DEVI

As per patient file Ex.PW-10/24, Operation Note Ex.PW-14/20, Amriti Devi was operated on 06.06.2000 and her Mitral valve was replaced with 27 M TTK Chitra and Aortic valve was replaced with 19 MM Omni Science valve. Entry No.82/5 Ex.PW-26/17 at Page No.136 of the open heart register Ex.PW-6/1 corroborates this. As per Page No.84 of the diary Ex.PW-58/1, Surinder Singh Uppal received cash of Rs.87,500/- from Hari Singh on 30.05.2000 for 27 MM and 21 MM valves and oxygenator for patient Amriti Devi. On 30.05.2000 itself, Surinder Singh Uppal procured oxygenator for Rs.11,600/-. On 31.05.2000 he procured valve for Rs.14,000/-. On the same day, he paid Rs.12,000/- cash to Dr. Dhaliwal; kept Rs.12,000/- for himself and Rs.38,000/- were shown cash in hand. However, bill Ex.PW-38/1 was issued for

Rs.87,500/- showing sale of two valves. PW-38 Hari Singh, husband of the patient says that Dr. Dhaliwal had asked him to deposit Rs.95,000/- with a person in Sector

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15, Chandigarh. His address was given on a slip by Dr. Dhaliwal. He went there and deposited Rs.95,000/- with sikh gentleman whose name he could not recollect now. There appears contradiction as it is evident that the amount paid was Rs.87,500/- and not Rs.95,000/-. However, this would not mean that his entire statement, which is otherwise lucid and clear, should be given a good-bye. The contradiction is as to matter of detail only and does not go to the root of the matter.

PATIENT:GURNAM SINGH
As per patient file Ex.PW-10/13, Operation Note Ex.PW-14/13 and Ex.PW-14/14, Gurnam Singh was

operated on 29.05.2000 and his Mitral valve was replaced with 27MM TTK Shree Chitra valve. Entry No.76/16 Ex.PW-6/3 at Page No.135 of the open heart register Ex.PW-6/1 corroborates this. As per Page No.84 of the diary Ex.PW-58/1, Surinder Singh Uppal received cash of Rs.49,000/- from Gurmail Singh on 26.05.2000 for one 27 MM valve and oxygenator for patient Gurnam Singh. Surinder Singh Uppal procured 27 MM valve for

Rs.14,000/- and oxygenator for Rs.11,600/-. Out of

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profits, he paid Rs.12,000/- to Dr. Dhaliwal and pocketed Rs.11,400/-. PW-46 Gurmail Singh says that as directed by Dr. R.S.Dhaliwal, he had made payment of

Rs.95,000/- for heart valve to Surinder Singh in Sector 15, Chandigarh whose complete address he could not recollect now.

PATIENT:SHYAM LAL
As per patient file Ex.PW-10/19, Operation Note Ex.PW-14/22, Shyam Lal was operated on 18.09.2000 and his Mitral and Aortic valves were replaced with 29 MM TTK Chitra and 21 MM TTK Chitra respectively. Entry No.136/11 Ex.PW-26/19 at Page No.144 of the open heart register Ex.PW-6/1 corroborates this. As per Page No.89 of the diary Ex.PW-58/1, Surinder Singh Uppal received cash of Rs.70,000/- from Sat Pal on 16.09.2000 for one 21 MM and 29 MM valves for patient Shyam Lal. As per admission form Ex.PW-14/21, Sat Pal is the father of the patient. Out of profits, Surinder Singh Uppal paid Rs.21,000/- to Dr. Dhaliwal on 18.09.2000.

PATIENT: KAMLESH KUMARI

As per patient file Ex.PW-10/28, Kamlesh Kumari was operated on 31.08.2000 and her Mitral valve was

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replaced with 29 MM TTK Chitra valve. Entry No.20/126 Ex.PW-26/18 at Page No.143 of the open heart register Ex.PW-6/1 corroborates this. As per Page No.88 of the diary Ex.PW-58/1, Surinder Singh Uppal received draft of Rs.35,000/from Dr. Dhaliwal on 01.09.2000 for

purchase of 29 MM valve for patient Kamlesh Kumari. Surinder Singh Uppal procured valve for Rs.13,000/- and out of profits, he paid Rs.10,500/- to Dr. Dhaliwal on 14.09.2000. Paras Ram, the father of Kamlesh Kumari appeared in the witness box as PW-51. He stated that he got prepared draft of Rs.35,000/- in favour of the firm the name of which was given to him by Dr. R.S.Dhaliwal. He made clear that he had handed over the draft to Dr. Dhaliwal.

PATIENT:ISRO DEVI
As per patient file Ex.PW-10/6, Operation Note Ex.PW-2/2, Isro Devi was operated on 20.04.2000 and her Mitral valve was replaced with 27 MM TTK Chitra valve. Entry No.57/10 Ex.PW-6/2 at Page No.132 of the open heart register Ex.PW-6/1 corroborates this. As per Page No.82 of the diary Ex.PW-58/1, Surinder Singh Uppal received cash of Rs.35,000/- from Hukam Singh,

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husband of he patient 17.04.2000 for purchase of 27 MM valve. He procured valve for Rs.15,205/- and out of profits, he paid cash of Rs.15,000/- to Dr. Dhaliwal on 18.04.2000. In the diary itself, it is mentioned that the serial number of the valve supplied for patient Isro Devi was F66314 HVP071 date of manufacture February 2000 and date of expiry March 2004. As per entry No.6/2 of the open heart register the serial number of the valve in the heart of Isro Devi was F66314. It is thus evident that TTK Chita valve was supplied but, to justify the charging of Rs.35,000/- bill was issued for Medtronic heart valve.

PATIENT: JANKI
As per Ex.PW14/23 in Patient File Ex.PW10/20, Janki Devi was operated on 02.11.2000 and one 27mm TTK Chitra Valve was implanted. As per open heart register Ex.PW6/1 entry No.156/1 at page 148

(Ex.PW6/20) the valve replaced was TTK 27mm Sr.No. H6 4228. The sticker affixed on the back of Ex.PW14/23

further corroborates the said fact. As per diary Ex.PW58/1 page 89, on 02.11.2000 S.S.Uppal received draft for Rs.35,000/- from Dr. Dhaliwal for 27mm valve. He has not mentioned the patient's name in his diary. But, from

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other details it can safely be inferred that the draft was for Janki Devi. Surinder Singh Uppal procured valve for Rs.13,000/- and out of profits gave Rs.11,000/- to Dr. R.S.Dhaliwal on 06.11.2000. 75. A common thread runs through the statements of

Pws 24, 25, 27, 28, 29, 35, 36, 37, 38, 39, 41, 44, 46, 50, 51 and 57 that Dr. R.S.dhaliwal used to refer the wards of the patients to Surinder Singh Uppal for the purchase of heart valves. In some instances, he even specified the amount required to be paid. Surinder Singh Uppal used to procure valves and supply them at exorbitant price. The profits used to be shared. 76. Learned counsel for the accused has assailed the

statements of these witnesses on the following grounds: 1. Even though it is the prosecution case that uptill 1998, the accused used to accept the cash or drafts from the patients and after 1998 he used to refer the patients to Surinder Singh Uppal but only one witness i.e. PW-39 Idrish has alleged that he paid cash to the accused. 2. PW-44 Netar Singh, whose patient was

operated before 1998, has alleged that he was

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referred accused. 3.

to

Surinder

Singh

Uppal

by

the

All the aforementioned witnesses have given surprisingly similar statements.

4.

No witness has produced any documentary evidence of having been referred by the accused.

5.

No witness was shown the slip allegedly given by the accused while referring him to Surinder Singh Uppal.

6.

PW-37 Satnam Singh and PW-38 Hari Singh have admitted that they were tutored by

prosecution before appearance in the court to make statement. 7. PWs No.35, 39, 41, 50 and 51 have made improvements over their statements under Section 161 of the Code of Criminal Procedure. To my mind, none of the grounds cited by the

77.

defence is sufficient to discard the statements of the wards of the patients referred to above. Merely because PW-37 and PW-38 have admitted that they were shown their statements under Section 161 of the Code of Criminal Procedure before they stepped in the witness

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box, it does not mean that what they have stated is not true. Merely going through the statement under Section 161 of the Code of Criminal Procedure before stepping in the witness box would be not sufficient to brand a witness unreliable. PW-38 even went to the extent that he was stating whatever was true. Whatever the witnesses have stated is corroborated by the entries in the diary Ex.PW-58/1. Merely because Surinder Singh Uppal has stated that till 1998, the accused used to accept cash or drafts from the patients himself and after 1998 he used to refer the patients to him, it does not mean that there were no exceptions. Therefore, when PW-44 Netar Singh says that he was referred to Surinder Singh Uppal by the accused, it does not mean that either he or Surinder Singh Uppal is lieing. 78. Merely because the statements of the witnesses

are similar, it does not mean that this is a flaw. As the witnesses got the similar 'treatment' from Dr. Dhaliwal, they had to say so. 79. If none of the witnesses could produce any

documentary evidence of having been referred by the accused, it does not mean that whatever they have stated

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is false. Generally, people do not retain documents which are not required for such a long time. 80. Merely because referral slips were not shown to

the witnesses, it does not mean that the statements are not trustworthy. The referral slips have, otherwise, been proved to have been issued by Dr. R.S.Dhaliwal. 81. Coming to the improvements alleged to have

been made by the witnesses in their statements, it has to be noticed that there would be nobody who would be able to reproduce the statement earlier made by him in parrot like fashion. There would be minor improvements here and there but, the same cannot be taken as a proof of unreliability of the witnesses unless they go to the root of the matter. Having gone through the statements, the Court believes that none of the alleged improvements made by the witnesses touches the core of the matter. All of them are with regard to matters of detail. The statements are convincing. In fact, the witnesses had no reason to toe the line of the CBI considering the fact that the relatives of most of them were given a new lease of life by Dr. R.S.Dhaliwal by successfully operating them.

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82.

As against the wards of the patients examined by

the prosecution the defence has pitted DW1 Jarnail Singh, DW2 Mandheer Mohan and DW4- Subhash Gupta. 83. According to DW1 as per the diagnosis made by

Escort Hospital his son Jarnail Singh required two valves to be replaced, but he brought his son to Chandigarh whee Dr. R.S.Dhaliwal operated and only one valve was replaced while the other was repaired. He further stated that after his son was admitted, 2/3 agents/persons had approached him regarding supply of artificial valves but after consulting the wards of other patients and, the Nursing Staff, he purchased valves from Paul Medical and after surgery the amount of one valve was refunded to him by Paul Medical. 84. According to DW2 initially when his wife was

brought to PGI Dr. Suri had diagnosed that her heart valve needed replacement, but he could not arrange the amount at that time and when after six months her condition deteriorated she was again brought to PGI. This time Dr. R.S.Dhaliwal performed surgery and repaired the heart valve. According to the witness he purchased the medicines and disposable from the chemist of his choice

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without any recommendation by Dr.R.S.Dhaliwal. 85. According to DW4 his wife Indu Gupta who is a

Teacher in Himachal Pradesh Education Department was operated by Dr. Dhaliwal in the year, 2000 and one artificial heart valve was implanted which was purchased through Medical Superintendent Office. He stated that

the consumables were purchased from Kumar Brothers and Paul Medical Hall in consultation with relatives at Chandigarh R.S.Dhaliwal. 86. The statements of DW1, DW2 and DW4 are without any recommendation by Dr.

subjective. They have deposed as to the manner in which they and their patients were treated. They have not

deposed about the other patients and the treatment meted out to them. prosecution that the to It has not been the case of the Dr. all R.S.Dhaliwal the was making to buy

recommendation

patients

valves/disposables/medicines from a particular supplier. It is not the case that the Dr. R.S.Dhaliwal had been cheating all the patients. Therefore, if some patients

were not cheated and their wards had no grievances, it can not be said that the prosecution witnesses are not

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reliable. 87. It would be pertinent to mention here that as per

the Open Heart Register Ex.PW6/1 Indu Gupta was operated on 8.8.2000. The valve implanted was 2mm

Starr Edwards. According to her husband DW4, the valve was purchased through the Medical Superintendent

Office. However, in the diary Ex.PW58/1 at page 87 there is an entry regarding receipt of draft of Rs.35,000/- by Surinder Singh Uppal from Dr. R.S.Dhaliwal for patient Indu Gupta. As per the entry Surinder Singh Uppal purchased the valve for Rs.14,000/- and out of profit gave Rs.10,500/- to Dr. R.S.Dhaliwal. When confronted with the fact that he had given draft in the sum of Rs.35,000/- to Dr. R.S.Dhaliwal for the purchase of valve, DW4 came out with evasive reply that he did not remember. This proves that the valve was purchased

from Surinder Singh Uppal and not from Paul Medical Hall or Kumar Brothers. It appears that DW4 appeared in

support of Dr. R.S.Dhaliwal little knowing that he too had been cheated into paying exorbitant price for valve. 88. In so far as the statements of DW3- Dr. Rama

Krishna, DW6- Dr. Kuldip Singh Sidhu and DW7- Dr.

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Rajan Mehra are concerned, a common thread runs through them that the wards/attendants of the patients used to purchase consumables/artificial valves after

conducting inquiries from the doctors, attending staff, relatives of the post operative patients etc. Their

statements however do not falsify the statements of the prosecution witnesses in as much as DW6 admitted that whatever he had stated was regarding the general practice and that it was an objective opinion of his. He explained that he will not be in a position to comment as to how the decision by a particular person in a particular case as to the purchase of valves etc was arrived at. As against this, the prosecution witnesses have been specific about their individual cases. What the defence has been able to probablize is only the general/ideal practice. It has failed to probablize its claim that no patient was ever referred by Dr.R.S.Dhaliwal to a particular

chemist/supplier. 89. Learned counsel for the accused would argue

that even if, for a pause, it is admitted that the doctor R.S.Dhaliwal and Surinder Singh Uppal joined hands and came to understanding that the former would be referring

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the patients/wards to the latter and the latter will supply artificial heart valves and both will share profits, it can not be said that they entered into criminal conspiracy as there was no agreement to break law or commit an illegal act. Referring to Section 43 of the Indian Penal Code,

learned counsel pointed out that an act would be illegal only if it is an offence or if it is prohibited by law and since business is neither an offence nor it is prohibited by law, it was averred that no criminal liability can be foisted upon the accused. 90. On first blush the contention appears attractive

in as much as running business is purely legal activity. However, Section 120-A of Indian Penal Code defines conspiracy as to include the illegal acts as well as the legal acts agreed to be done by illegal means. The gist or essence of the crime of conspiracy is unlawful agreement. If the agreement is by itself unlawful but some lawful activity is carried out as front, it does not become lawful. It has already been discussed above, as to what the agreement between the two was. Such an agreement if entered between two businessmen would, by itself, not have been unlawful. But if one of the parties is a doctor

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working for government and the other is initiated into business by him with the understanding that will be referring the patients/wards to him and the profits would be shared, the agreement will be unlawful. Even if logic is stretched beyond limit, and such an agreement is considered legal, the means adopted were surely illegal. If a Judicial Officer enters into some kind understanding with an Advocate that he will be referring litigants to him and the Advocate will represent the litigants for fee and the fee would be shared between them, would that be lawful? 91. Had Dr. R.S.Dhaliwal simply referred the

patients/wards to Surinder Singh Uppal without any personal interest the matter would have been different. But, here he had personal financial interest which was against the interests of the patients. The patients would be charged exorbitantly by Surinder Singh Uppal and Dr. R.S.Dhaliwal used to facilitate. Such an arrangement can not be termed as legal or lawful. From the acts and

conducts of Surinder Singh Uppal and Dr. R.S.Dhaliwal as discussed in earlier part of the judgment, it can safely inferred that there was a criminal conspiracy.

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92. accused

Faced with this situation, learned counsel for the argued that for being tried for criminal

conspiracy there has to be more than one accused but in the present case there is only one accused, therefore, the charge of criminal conspiracy would not survive and since it is not the case of the prosecution that everything was done by Dr. R.S.Dhaliwal individually without any

participation by another person, the other charges would also fall. 93. The contention lacks merit. To prove charge of

criminal conspiracy, the prosecution has to prove unlawful agreement between two or more persons. There could, however, be cases where only one conspirator is known while the identity of others remains unestablished even till the completion of investigation. In that eventuality, even one accused can be convicted. The instant case is on much better footing. known. Here both the conspirators were

However, chargesheet was filed against one

because the other had been pardoned by that time and had to be arrayed as a witness. Therefore legally speaking, this is not the case where the accused is being sought to be convicted for conspiring with himself. There

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is no doubt that the approver has implicated himself equally with the accused. He has given a full description of the conspiracy between him and the accused. evidence gets adequate corroboration from His other

independent witnesses and documents. The Court is, therefore, of the opinion that the approver's version

about the leading part in the conspiracy played by the accused in persuading him to join with him for the purpose of fleecing the patients by procuring artificial

heart valves at cheaper prices and supplying them at exorbitant prices is true. There is independent

corroboration of his evidence which is inconsistent with the theory of the accused being a mere over burdened surgeon, having nothing to do with the procurement of valves etc. 94. In Bimbadhar Versus Orissa State 1956 SC

469, a single accused was convicted under Section 120B of the Indian Penal Code on the evidence given by the approver. 95. Even if, for the sake of argument, the evidence

of the approver and the entries in the diary Ex.PW-58/1 are not taken into consideration, there is sufficient

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independent evidence to prove the factum of criminal conspiracy.

96.

As a last resort, learned counsel for the accused

argued that admitting everything, it was a simple case of overcharging which has been presented in a sensational manner as if the accused were a demon. It was contended that overcharging will not amount to criminal offence.

97.

To my mind, such an impression could be formed

only if the instances were to be taken up separately. In that eventuality, one or two instances could have been brushed aside as minor abberrations. But so many instances unerringly lead to only one conclusion taht there was unholy nexus between Surinder Singh Uppal and Dr. R.S.Dhaliwal.

98.

A motion picture is made of a succession of still

images flashed at a defined minimum speed which exceeds the rate at which the human eye and mind can perceive through sensory organs and, if the frequency is less they are perceived as disconnected still images.

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99.

While deciding cases like the one in hand the

Court has to have the vision to view and perceive the facts and circumstances at such a frequency that they present a complete picture and not just the still images. No doubt, each of the 24 instances has been discussed separately but they have to be pieced together to reveal and present a picture so complete and vivid as not to leave any room for doubt. The picture so presented reveals all the contours of conspiracy albeit, the instances of Dola Ram and Gulzar stand out. It was definitely not a simple case of overcharging the patients. Had Surinder Singh Uppal charged exorbitant price for the valves from the patients/their wards independently, the matter would have been different. Here, the accused fraudulently and dishonestly induced the wards of the patients to purchase artificial heart valves from Surinder Singh Uppal at exorbitant price. To justify that he also tampered with record. The interpolations in the record were made deliberately with a definite purpose. It is worth mention that as per Ex.PW-21/1, the maximum retail price of TTK valve was Rs.19,900/-. Against this, the patients were

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made to pay Rs.35,000/- to Rs.45,000/-. This was being done in active connivance with the accused. Even the

Office of Medical Superintendent was not spared. It was also deceived into issuing cheque for a valve which had never been implanted (Dola Ram's case). The forged and fabricated documents, for example, the Bill Ex.PW-39/2 were deliberately used by the accused as genuine with the same dishonest intention. The accused is proved to have not only abused his official position but also to have adopted corrupt and illegal means for obtaining for himself and, Surinder Singh Uppal, pecuniary advantage. The prosecution has, therefore, been able to bring home the guilt to the accused beyond doubt. Therefore, the accused is hereby convicted under Sections 120-B, 420, 467, 468, 471 of Indian Penal Code and under Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act.

100.

Before parting, the Court would like to place on

record its deep sense of appreciation for the untiring and diligent efforts of the Investigating Officer who has conducted the investigation in absolutely impartial

manner and, the learned Public Prosecutor and the

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defence counsel who have ably assisted the Court in bringing this case to logical conclusion.

Pronounced: 02.03.2009

Special Judge, Chandigarh.

This judgment contains 157 pages and all the pages have been signed by me.

Special Judge, Chandigarh.

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Question of Sentence Present:Shri R.L. Negi, Senior Public Prosecutor for C.B.I. Convict R.S.Dhaliwal on bail being assisted by Shri Matwinder Singh, Advocate. Heard. 2. Convict Dr. R.S.Dhaliwal claims that his

incarceration may not serve the ends of justice as he has to serve the society being a surgeon. His counsel pleads that the time wasted, if the convict is sent behind bars, would be at the cost of society. Pleading that the convict should be given a chance to reform. Learned counsel has pleaded for leniency. 3. Fridemant in his 'Law in changing Society' has

observed that the State of Criminal Law continues to be - as it should be - a decisive reflection of social consciousness of Society. Therefore,in operating the

sentencing system the law should adopt the corrective machinery or the deterrence based on factual matrix.

The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of crime, the

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conduct

of

the

accused

and

all

other

attending

circumstances are relevant facts which as observed by the Hon'ble Apex Court in State of M.P. Vs. Santosh Kumar 2006 (3) R.C.R. (Criminal) 554,would enter into the area of consideration. 4. In Sevaka Perumal Vs. State of Tamul Nadu

1991(2) RCR (Criminal) 427, it was observed by Hon'ble Supreme Court that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and Society could not endure under such serious threats. It is, therefore, the duty of every court to award condign punishment. 5. For deciding just and appropriate sentence to be

awarded, the aggravating and mitigating factors and the circumstances in which the crime has been committed are to be delicately balanced in a dispassionate manner. 6. Here, this Court is dealing with an unscrupulous

doctor/public servant who has not only failed to preserve the purity of his life which he had promised while taking Hippocratic oath but has also adopted devious means to earn money. Such like persons debase and defile the

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very system they are expected to protect and uphold. The kind of crime committed by him in common parlance is known as 'corruption in civil life' which is spreading its tentacles far and wide. It is getting contagious and threatening to devour the very vitals out of the bone marrow of the society. A crime committed in the heat of passion may call for sympathetic consideration. But a

calculated and organized crime like the one committed by the convict Dr. R.S.Dhaliwal in the instant case must be visited with severe and deterrent punishment. 7. The plea that sending the convict behind bars

will not serve any useful purpose in that it will deprive the society of the services of an able surgeon does not find favour with the Court. A surgeon has to be a human being. If the element of honesty and sincerity is taken out of a surgeon, there will be no difference between him and a robot. A gentleman surgeon with average capability will do great service to the society. But a corrupt surgeon with exceedingly fine and efficient hand will only end up causing harm to the system. 8. Needless to say that there are virtually no circumstances in favour of convict Dr.

mitigating

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R.S.Dhaliwal. The fact that he is under suspension and is likely to lose his job is hardly a reason to sympathize with him. He was being paid for his services by the

Government.

He was being treated like God by the

patients and the wards. Therefore, except for greed there was no motive with him to commit the crime. It is evident that Dr. R.S.Dhaliwal was the king pin. He was the axis around which the things revolved. Surinder Singh Uppal was brought in the net by him. No doubt, Surinder Singh Uppal was also driven by greed but he was simply the beneficiary. The master mind was Dr.

R.S.Dhaliwal. It was he who manipulated everything. It was he who subverted the system. Surinder Singh Uppal simply assisted him in achieving the object. 9. The age of the convict; the stage of life he is at

and, the fact that he has shown inclination to reform himself are though, the factors to be given due

weightage. 10. The Court, after giving thoughtful consideration

to the facts, circumstances, and nature of the crime; the manner in which it was planned and committed; and the motive and conduct of convict Dr. R.S.Dhaliwal sentences

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him as under: i) Section 120-B of Indian Penal Code: To undergo rigorous imprisonment for 3 (three) years and to pay fine of Rs.10,000/-. In default of payment of fine, to undergo further rigorous imprisonment for 1 (one) month.

ii)

Section 420 of Indian Penal Code: To undergo rigorous imprisonment for 3 (three) years and to pay fine of Rs.10,000/-. In default of payment of fine, to undergo further rigorous imprisonment for 1 (one) month.

iii.

Section 467 of Indian Penal Code: To undergo rigorous imprisonment for 5 (five) years and to pay fine of Rs.20,000/-. In default of payment of fine, to undergo further rigorous imprisonment for 3 (three) months.

iv.

Section 468 of Indian Penal Code: To undergo rigorous imprisonment for 3 (three) years and to pay fine of Rs.10,000/-. In default

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of payment of fine, to undergo further rigorous imprisonment for 1 (one) month. v. Section 471 of Indian Penal Code: To undergo rigorous imprisonment for 3 years and to pay fine of Rs.10,000/-. In default of

payment of fine, to undergo further rigorous imprisonment for 1 (one) month. vi. Section 13(1)(d) read with Section 13

(2) of Prevention of Corruption Act. To undergo rigorous imprisonment for 3 (five) years and to pay fine of Rs.10,000/-. In default of payment of fine, to undergo further rigorous imprisonment for 1 (one) month. 11. All the sentences shall run concurrently. The

period already undergone by the convicts in custody shall be set-off against the term awarded. It is made clear that out of the same FIR, two separate chargesheets were filed. Since Dr. R.S.Dhaliwal has been convicted in

Chargesheet No.2 as well, it is directed that the sentence awarded in this Chargesheet shall run concurrently with the sentence awarded in Chargehseet No.2. Fine paid. All the un-exhibited documents be returned to the concerned

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quarters against proper receipt. File be consigned to the record room.

Pronounced: 03.03.2009

(Jagdeep Jain) Special Judge, Chandigarh.

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