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State of Rajasthan Vs. Dr. J.P. Sharma and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1983CriLJ858; 1982()WLN60
AppellantState of Rajasthan
RespondentDr. J.P. Sharma and ors.
Cases ReferredIn Thakar Abir v. Province of Bihar
Excerpt:
criminal law amendment act, 1952 - section 6(1) and 7(2) and prevention of corruption act, 1947 - section 5(1)(d) & (2) and penal code--section 161--special judge--appointment of-two special judges--no objection raised during trial regarding jurisdiction--held, order cannot be set aside unless prejudice is caused;under the notification dated may 20, 1965 in respect of sessions judge, jaipur city so far as the trial of the cases investigated by the delhi special police establishmant was concerned special judge no. 2 jaipur was appointed as special judge. the sessions judge, jaipur city was appointed to be special judge under the notification of february 26, 1958 for trial of offences under section 6(1) of the act in respect of the cases other than those investigated by delhi special.....m.b. sharma, j.1. this is a state appeal against the judgment dated february 8, 1973 passed by special judge, for rajasthan, jaipur city, in special criminal case no. 19/71 acquitting the accused-respondents of the charges under sections 120(b), 420, 461 i.p.c. and under section 5(1)(d) read with section 5 (2) of the prevention of corruption act, 1947.2. in the year 1964 the accused dr. j.p. sharma was posted as assistant director, health services, udaipur and accused nathu lal was then personal assistant to the principal, ravindra nath medical college, udaipur. accused shyam sunder kabra at that time was a partner of m/s. hansa medical hall, johari bazar, jaipur. under the scheme then in force indents for the purchase of medicines for various government hospitals vised to be placed by.....
Judgment:

M.B. Sharma, J.

1. This is a State appeal against the judgment dated February 8, 1973 passed by Special Judge, for Rajasthan, Jaipur city, in Special Criminal Case No. 19/71 acquitting the accused-respondents of the charges under Sections 120(b), 420, 461 I.P.C. and under Section 5(1)(d) read with Section 5 (2) of the Prevention of Corruption Act, 1947.

2. In the year 1964 the accused Dr. J.P. Sharma was posted as Assistant Director, Health Services, Udaipur and accused Nathu Lal was then Personal Assistant to the Principal, Ravindra Nath Medical College, Udaipur. Accused Shyam Sunder Kabra at that time was a partner of M/s. Hansa Medical Hall, Johari Bazar, Jaipur. Under the scheme then in force indents for the purchase of medicines for various Government hospitals vised to be placed by the Assistant Director, Health Services with the sole distributors. The medicines so purchased were cheaper by about 50 per cent than their prevalent market rates. The case of the prosecution is that taking advantage of this difference in rates of the various medicines accused Dr. J.P. Sharma, the then Assistant Director, Health Services, Udaipur entered into the conspiracy with Nathulal Mehta and Shyamsundei Kabra. After placing fictitious indents the delivery of the medicines was taken by the accused persons and those medicines were sold at the market rates at the shop of M/s. Hansa Medical Hall. Jaipur through accused Shyamsunder Kabra. All the three accused persons used to distribute the profit which accrued as a result of the sale of the various medicines. On 11-3-1964 by a telegraphic order Ex. P-99 which later on was confirmed vide order Ex. P-44, an order for 25,000 capsules of Chloromycetin, by an order No. 1209 dated Nov. 30, 1964 (Ex. P-10), for 30,000 capsules of the same medicine was placed with M/s. Spencer & Co. Ltd., Jaipur and indents were issued under the signatures of Dr. J. P. Sharma. Similarly by an order No. 7405 dated December 18, 1964 (Ex. P-7) an order for 40,000 Entromycetin capsules was placed with Deys Medical Stores Pvt. Ltd., Jaipur.

3. The case of the prosecution further is that accused Nathu Lal gave the exemption certificate for exemption of octroi duly and this was with regard to the medicines for which the orders referred to earlier were placed with M/s. Spencer & Co. The exemption certificate along with railway receipts were given by Nathu Lal to one Nand, Ram. P. W. 2, peon attached with Principal, Ravindra Nath Medical College, Udaipur. Nand Ram took the delivery from the Railway station and delivered the goods at the house of accused Natlui Lal Mehta. So far as the medicines for which the indents were placed by Dr. J. P. Sharma with Deys Medical Stores, Jaipur are concerned the case of the prosecution is that the goods were received at the office of Assistant Director, Health Services, Udaipur, But it was revealed that an order was not placed for those medicines and, therefore, Deys Medical Stores was informed accordingly. It in turn asked the Assistant Director, Health Services, Udaipur (A. D. H. S.) to send back the medicines. The medicines are said to have been returned vide R.R. No. 99550 dated January 22, 1965 but on March 5, 1965 accused Dr. J. P. Sharma along with one Shahdad Khan. P. W. 14 clerk of his office, went to Jaipur to Deys Medical Stores and took delivery of 40,000 capsules of Entromycetin. Receipt for the medicines was given by Shahdad Khan P. W. 14, to Deys Medical Stores. Accused Dr. J. P. Sharma along with Shahdad, Khan, P. W. 14 then went to M/s. Hansa Medical Hall, Jaipur and Dr. J. P. Sharma is said to have delivered the packet of medicines to accused Shyam Sunder Kabra for being sold at M/s. Hansa Medical Hall. It is further the case of the prosecution that a draft of Rs. 7344/- through State Bank of Bikaner and Jaipur, Branch Udaipur, was sent by Dr. J. P. Sharma to Deys Medical Stores. On the report of the Principal Medical and, Health Officer, Udaipur the matter was investigated and later on the case was investigated by the A. C. D. Jaipur. The investigating officer seized number of documents and specimen writings and signatures of the accused Dr. J. P. Sharma and of accused 'Nathu Lal were taken by R.K. Agarwal, Magistrate, Jaipur. The specimen writings and signatures so taken and disputed documents were sent for examination to handwriting expert Shri Krishna Charan, P, W. 26, whose opinion was that the writer of the specimen writings and of signatures were the same persons. A charge sheet was filed against the accused persons.

4. The accused persons pleaded not guilty to the charges and claimed to be tried. The prosecution examined as many as 34 witnesses. Thereafter each of the accused was examined under Section 313 Cr. P.C. to explain the circumstances appearing against them in the evidence of the prosecution witnesses. In their statement under Section 313 Cr. P.C. the accused persons denied their complicity in the crime Dr. J. P. Sharma and Nathujal also denied that their specimen writing and signatures were taken by Sh. R.K. Agarwal Magistrate. Accused Shyam Sunder Kabra denied having any connection with any of the transaction. On behalf of the accused persons three witnesses were examined including two handwriting experts namely A.S. Kapoor, D, W. 2 and V. Kumar Sakhuja, D. W. 3.

5. The learned Special Judge after discussion of the evidence on record and after hearing the arguments acquitted all the accused persons of the various charges levelled against them.

6. We have heard learned Public Prosecutor and learned advocates for the accused persons and have gone through evidence on record. The contention of the learned Public Prosecutor is that the statement of handwriting expert has been wrongly disbelieved by the learned Special Judge and the evidence of the handwriting expert is as good, evidence as any other evidence and can form the basis of conviction. He further submits that from the statements of Nand Ram, Peon, P. W. 2 and Mod Singh P. W. 22 it is clearly established that it was accused Nathu Lai who had given R. Rs. to Nand Ram who took the delivery of the medicines from the railway station and delivered them at the house of accused Nathu Lal. Thus, the learned Public Prosecutor submits that the prosecution has satisfactorily established the case against the accused persons. The learned Advocate for the accused persons contends that learned Special Judge has considered the statement of all the witnesses and has not placed reliance on them. This Court while dealing with an appeal against acquittal should give due weight to the opinion of the trial Judge so far as reliability of witnesses is concerned. Because the view of the trial Judge so far as the evidence of the witnesses is concerned, cannot be said to be unreasonable, this Court should not interfere in an appeal against acquittal. He further contends that there is absolutely no evidence that R. K. Agarwal, the Magistrate had taken specimen writings and signatures of accused Dr. J. P. Sharma and Nathu Lal. In other words according to him the prosecution has failed to establish the identity of the specimen hand writing taken by the Magistrate as those of the accused persons, therefore, the opinion of the handwriting expert Shri Krishna Charan is not relevant. He further contends that there is absolutely no case against any of the accused persons and so far as accused Shyam Sunder is concerned, the statement of Shehdad Khan, the only witness to connect him with the crime has been rightly disbelieved by the Special Judge. It is also contended by him that Special Judge, was not specified under Sub-section (2) of Section 7 of the Criminal Law Amendment Act, 1952 to be the judge to try the case and there being more than one Special Judge, for the area of Jaipur city at the relevant time, the trial by the Special Judge was without jurisdiction.

7. Before we take up the appeal on merits we would deal with the contention of the learned advocate for the accused, respondents that there were more than one Special Judges in Jaipur and unless the State Government would have specified under Sub-section (2) of Section 7 of the Criminal Law Amendment Act, 1952 (Act No. XLI of 1952) (for short the Act hereafter), as to which of them will try the case the Special Judge was not authorised to try the case as such the trial of the case by the Special Judge having not been specified under Sub-section (2) of Section 7 of the Act was without jurisdiction and the trial is vitiated. Section 7 of the Act is as follows:

7. Cases triable by Special Judge.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1398, or in any other law the offences specified in Sub-section (1) of Section 6 shall be triable by Special Judge only.

(2) Every offence specified in Sub-section (1) of Section 6 shall be tried by the Special Judge for the area within which it was committed or where there are more Special Judges than one for such area by such one of them as may be specified in this behalf by the State Government,

(3) When trying any case, a Special Judge may also try any offence other than an offence specified in Section 6 With which the accused may, under the Code of Criminal Procedure, 1898 be charged at the same trial.

8. Under Section 6(1) of the Act, the State Government has powers to appoint as many Special Judges as may be necessary for such area or areas as may be specified in the notification to try offences punishable under Sections 161, 162, 163, 164, 165 and 165A of the Penal Code or Section 5 of the Prevention of Corruption Act, 1947 or to try any conspiracy to commit or attempt to commit any abetment of any of the offences specified. Thus, more than one Special Judges can be appointed for area or areas and the appointment of Special Judge is not for any particular case but is for an area or areas. By virtue of Sub-section (1) of Section 7 of the Act all offences specified by Sub-section (1) of Section 6 of the Act are triable exclusively by Special Judges. Such offence or offences shall be tried by the Special Judge of the area within which offence was committed, or where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the State Government.

9. Sanction under Section 197 of the Code of Criminal Procedure for prosecution of accused respondents Dr. J. P. Sharma and Natnu Lal is as under:

Whereas, it has been brought to the...Now therefore, in pursuance of Section 197 of the Code of Criminal Procedure and Section 6 of the Prevention of Corruption Act, 1947, the Government of Rajasthan being the competent authority to remove the said servants Shri J. P. Sharma and Nathu Lai Mehta from their office, do hereby accord sanction for prosecution of the said servants Shri J. P. Sharma, Assistant Director, Health Services, Udaipur, and Nathulal Mehta P. A. to the Principal Medical College, Udaipur (Both under suspension) for offence under Sections 420/408/120B, I.P.C. and Section 5 (1) (d) (2) of the Prevention of Corruption Act, 1947 and any other offence made out on the aforesaid facts in the court of Special Judge, Jaipur City.

10. The contention of Mr. Khandelwal, learned Counsel for the accused persons is that because at the relevant time there were more than one Special Judges in Jaipur city, it was necessary for the State Govt. to specify in the sanction itself as to in the court of which of them the case should be tried. In support of his contention he has placed reliance on Dr. Kailash Nath v. State of Rajasthan 1074 Raj LW 428. In the aforesaid case the learned single Judge of this Court held that it was necessary under Section 7 (2) of the Act for the State Government to specify which of the Special Judges shall try the offence committed by the accused and as State Government did not so specify by any such notification the trial of the case by one of them was without jurisdiction. The State Government in exercise of the powers conferred by Section 6 of the Act issued first notification dated August 26, 1952 appointing all Sessions Judges and Additional Sessions Judges in Rajasthan, by virtue of their office, to be Special Judges within their respective jurisdiction for the purpose of the Act. In partial modification of the aforesaid notification, the State Government issued second notification on November 18, 1955 and was pleased, to appoint Sessions Judge, Jaipur city to be Special Judge also for the trial of all the cases investigated by the Delhi Special Police Establishment involving offences punishable under Section 161 or 105 or 165A of the Indian Penal Code or Section 5 (2) of the Prevention of Corruption Act, 194? with jurisdiction over the whole State of Rajasthan. In supersession of the aforesaid notification issued in this behalf, the third notification was issued by the State Government on February 26, 1958 and under it the Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges specified in Col. 2 of the sub-joined Schedule by virtue of their office were appointed to be Special Judges to exercise jurisdiction respectively in the areas mentioned against each in column 4 thereof In respect of the cases other than those investigated by the Delhi Special Pottca Establishment, In column 2 of the sub-joined Schedule, for Jaipur city (Municipal Limits) Sessions Judge, Jaipur city and for Jaipur district (excluding Municipal limits of Jaipur) Sessions Judge, Jaipur District, Jaipur were appointed as Special Judges. Later on by another notification dated May 20, 1965 so far as para (11) was concerned, the State Government made an amendment in the aforesaid notification dated February 26, 1958 and in the said notification in para (11), before the Schedule, for the expression 'Sessions Judge, Jaipur city' the expression 'Special Judge, Jaipur city' who under the notification dated February 26, 1058 was appointed as Special Judge for the Jaipur city (Municipal- limits) in respect of the cases other than those investigated by Delhi Special Police Establishment, was appointed Special Judge with jurisdiction over whole of the State of Rajasthan for trial of cases investigated by Delhi Special Police Establishment. Under the notification dated May 20, 1965 in respect of Sessions Judge, Jaipur city so far as the trial of the cases investigated by the Delhi Special Police Establishment was concerned Special Judge No. 2 Jaipur was appointed, as Special Judge, The Sessions Judge, Jaipur city was appointed to be Special Judge under the notification of February 26, 1958 for trial of offences under Section 6 (1) of the Act in respect of the cases other than those investigated by Delhi Special Police Establishment. Yet another notification under Sub-section (1) of Section 6 of thy Act was issued on July 17, 1967, whereby the State Government was pleased to appoint Shri Gopal Sahai Sharma, officiating Civil and Addl. Sessions Judge as Special Judge with his headquarters at Jaipur for the whole of Rajasthan to try the offences specified in Section 6 (1) of the Act. Thus at the relevant time when a charge-sheet was filed, against the accused persons there were two Special Judges for cases other than of the Delhi Special Police Establishment, one Sessions Judge, Jaipur City and the other Special Judge (G.S. Sharma). This Court in Chandra Shekhar Parashar v. State of Rajasthan ILR (1858) 8 Raj 653 had the occasion to consider the aforesaid notification of 1952 under which all Sessions Judges and Additional Sessions Judges were appointed as Special Judge with jurisdiction over their respective areas. For Jaipur City, therefore, there were two Special Judges (i) Sessions Judge, Jaipur city and (ii) Additional Sessions Judge, Jaipur city it was observed as follows:

Where (here are two special Judges for the same area, Sub-section (2) of Section 7 comes into play, and specification has t0 be made by the State Government as to which of the two Special Judges is to try a particular offence. This specification can be made by allocating different classes of offences or persons or by reference to the agency by which the investigation is made.

11. In State of Rajasthan v. Ham Prasad 1958 Raj LW 378 : 1958 Cri LJ 971 a Division Bench of this Court in a case where occurrence took place in Kota and the case was firstly investigated by the Rajasthan Police and then by Delhi Special Police Establishment and taking note of the fact that there were two Special Judges, one Sessions Judge, Kota and the other Sessions Judge Jaipur City observed that the second notification of Nov. 18, 1955 under which the Sessions Judge, Jaipur city was appointed to be Special Judge also for the trial of all cases investigated by Delhi Special Police Establishment involving offences punishable under Section 161 or 165 or 165A of the Indian Penal Code or Section 5 (2) of the Prevention of Corruption Act, 1947 with jurisdiction over the whole State of Rajasthan can be taken to be an appointment for several areas assuming State had been divided into several areas by the notification of 1952. It was observed that it would have been quite in order if in the present case an order had been passed by the Slate Government that the present case be tried by the Special Judge, Jaipur City. The same result has been achieved by a general Order that the cases investigated by the Delhi Special Police Establishment shall be tried by Special Judge, Jaipur City. It was thus, held that trial of the cases by Special Judge, Jaipur City was legal.

12. In Dr. Haldiyas' case (supra) the learned single Judge of this Court considered the aforesaid authority of Division Bench but held that the aforesaid authority does not apply because the case has not been investigated, by Delhi Special Police Establishment. It was held that under Section 7 (2) of the Act where there is more than one Special Judge in the area, the State Government specify as to which of them shall try the case. In taking that view the learned Judge took support from Ananthashayanacharya Dombal v. State of Mysore 1964 (2) Cri LJ 486 (Mys).

13. A perusal of Sub-section (2) of Section 7 of the Act leaves no manner of doubt that in case there are more than one Special Judges for an area, then the offence specified under Sub-section (1) of Section 6 of the Act can only be tried by such of them who is specified in that behalf by the State Government.

14. In the aforesaid case of Dr. Haldiya it was also held that unless a Special Judge in case there are more than one Special Judge for the area, is specified, by the State Government, the trial by any of the Special Judges will be without jurisdiction. To us it appears that to that extent that case has not laid down the correct law. The Special Judge is appointed under Section 6 (1) of the Act and as already stated earlier as many Special Judges as may be necessary can be appointed by the State Government, for an area or areas as nay be specified in the notification to try the offences specified in Section 6 (1) (a) and (b) of the Act. Thus, all the Special Judges, in case there are more than one appointed for the area, shall have jurisdiction to try the case. Even if without being specified as required under Sub-section (2) of Section 7 of the Act a Special Judge of the area tries an accused for an offence specified under subjection (1) of Section 6 of the Act, then the trial shall not be vitiated and the accused, will have to show that as a result of trial by a Special Judge without being so specified by the State Government, his case has been prejudiced. Under Section 531 Cr. P.C. (old), no finding, sentence or order of any criminal court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong Sessions Division, district sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice. Their Lordships of the Supreme Court in Ram Chandra Prasad v. state of Bikaner AIR 1961 SC 1620 : 1961 (2) Cri LJ 811 were dealing with a case where Special Judge had no territorial jurisdiction to try the accused for an offence committed at Dhanbad in the Manbhum District. On an application by the accused the High Court transferred the case to the court of Munsif Magistrate, Patna. Subsequent to the order of transfer the Criminal Law Amendment Act, 1952 came into force. The case thereafter was forwarded to the Special Judge, at Patna in view of Section 10 of the Act. The accused was tried by the Special Judge of Patna and convicted. In appeal, objection was raised that there was Special Judge at Manbhum district where the occurrence took place and therefore he alone could have tried the case. It was held that Section 531 of the Cr. P.C. (old) was applicable and in view of that section the order of the Special Judge, Patna was not to be set aside on the ground of his having no territorial jurisdiction to try the case when no failure of justice has actually taken place. In Dr. Haldiya'a case the learned single Judge white dealing with the aforesaid authority of the Supreme Court observed that that authority will not apply. In view of the learned single Judge Ram Chandra's case (supra) will not apply because in that case the Special Judge had no territorial jurisdiction to try the case whereas in Dr. Haldiya's case the Special Judge, Jaipur City had territorial jurisdiction to try the case but his appointment was not specified by the State Government under Section 7 (2) of the Act, The learned Judge in the aforesaid case of Dr. Haldiya's also referred to the observations of their Lordships of the Supreme Court in R.V. Ahuluwalia v. State of Delhi, : AIR1971SC1552 , We are of the opinion that if one of the Special Judges having jurisdiction over the matter tries the accused and no objection is taken by the accused during the course of trial then this will not vitiate the trial unless the accused can show that as a result of such trial there has in fact been failure of justice. An objection with regard to the jurisdiction of the court should be taken at the earliest opportunity, and at any rate before the trial court pronounces judgment. This to us appears to he the settled position of law. It is strange that the accused never raised an objection during the course of trial that the Special Judge having not been specified under Sub-section (2) of Section 7 of the Act was not competent to try them. In Thakar Abir v. Province of Bihar AIR 1945 Pat 98 : 46 Cri LJ 399 (FB) while dealing with the Special Criminal Courts Ordinance 1942, Shearer J. observed:

Where a court has jurisdiction to try an offence it is, as a rule, immaterial whether it has taken cognizance of the Offence without being empowered to do so or whether the case has been transferred to it by another court which was not empowered to make the order of transfer.

15. To permit the accused respondents, who deliberately submitted to the jurisdiction of the Special Judge, who had been appointed as such under Section 6 (1) of the Act, to raise an objection of want of jurisdiction or competence, will not be in the interest of justice. The accused person having submitted to the jurisdiction and having taken a chance cannot be allowed now to say that the Special Judge had no jurisdiction to try them, A distinction has to be made in cases where an objection with regard to the jurisdiction of the court to try the case is raised at the earliest opportunity or at any rate before judgment is pronounced and in cases where it is not so raised. In the later cases the accused will have to show that there has been a failure of justice. The learned Counsel for the accused could not show to us as to what failure of justice has been occasioned to them as a result of trial a special judge who though appointed under Sub-section (1) of Section 6 of the Act was not specified under Sub-section (2) of Section 7 of the Act. The stage in Ahluwalias case AIR 1971 SC 1552 (supra) and Dombal's case 1964 (2) Cri LJ 486 (Mys) (supra) on which the learned single Judge has placed reliance on the aforesaid case of Dr. Haldiya was that the trial was going on when objection to jurisdiction of the court was raised. Thus with due respect to the learned Single Judge we are unable to agree that even if an objection to jurisdiction of the Special Judge is not raised during the course of trial it can be raised in appeal and the trial will be vitiated even if there has been no failure of justice. The trial of the case by a Special Judge when there are more than one Special Judge appointed under Sub-section (1) of Section 6 of the Act for the area or areas, even if such Special Judge is not specified under Sub-section (2) of Section 7 of the Act cannot stand on a lesser footing than that by a special Judge having no territorial jurisdiction. As held by the Supreme Court in Ram Chander's case (supra) that the order of the Special Judge can-not be set aside on the ground that he had no territorial jurisdiction to try the case when no prejudice was shown to have been caused to the accused. We are therefore of the opinion that if an objection with regard to the jurisdiction of a Special Judge if there are more than one appointed under Sub-section (1) of Section 6 of the Act is not raised during the course of trial, the order of that Special Judge cannot be set aside unless the accused can show that there has been a failure of justice,

16. Coming to the merits of the case we may straightway say that so far as accused Shyam Sunder is concerned, it is not the case of the prosecution that the medicines received from the M/s. Spencer and Co. Ltd., Jaipur were delivered to accused Shyam Sunder at M/s. Hansa Medical Hall, Jaipur. The case of the prosecution is that accused Dr. J. P. Sharma accompanied with Shahdad Khan, P. W. 14 had gone to M/s. Deys Medical Store, Jaipur and had taken delivery of 40,000 capsules of Entromycetin and had delivered the packet of medicines to Shyam Sunder Kabra at M/s. Hansa Medical Hall, Jaipur. The Special Judge has discussed the statement of Shahdad Khan, P. W. 14 in detail and has not placed reliance on his statement. Apart from the other infirmities in his statement as discussed by the learned Special Judge one serious infirmity that Shahdad Khan himself had signed the delivery note of the medicine at Deys in Medical Store. If Dr. J. P. Sharma would have been present he would have signed it because the medicines, it is said were meant for A. D. H. S., Udaipur. Shahdad Khan, P. W. 14 even does not know where M/s. Hansa Medical Store is situated. Thus, against Shyam Sunder Kabra, the learned Special Judge has rightly held that there is absolutely no evidence.

17. It is the duty of the prosecution to prove that the specimen writings are of the accused and only then the question can arise as to whether the opinion of the handwriting expert who compared the specimen writings with the writing on the questioned documents that they are of the same person, should be relied upon or not. In the instant case R.K. Aggarwal, PW 18 on 23-4-65 was posted as Additional Munsif and Judicial Magistrate, Jaipur city (West). It is before him that the specimen writings of Nathulal Mehta on Exs. P. 46 to P. 49 were taken. On the same clay Mr. R.K. Aggarwal also obtained the specimen signature of Dr. J. P. Sharma on Ex. P. 50 and his specimen writings on Ex. P. 51. But Mr. Agarwal has clearly stated that he cannot identify either Nathulal or Dr. J. P. Sharma. If Mr. Agarwal was knowing the persons whose specimen writings and signatures he took he must have certified that he personally knew them or if he was not knowing them then he must have called the police officer who was present, the accused having been brought by the police officer, and should, have got the accused persons identified by the police officer and only thereafter he should have taken their specimen writings and signatures. Be that as it; may, Mr. R.K. Aggarwal, does not identify the accused persons and, therefore, identity of Dr. J. P. Sharma and Nathulal Mehta as the persons whose specimen writings and signatures were taken is not established. Both the accused persons denied, that their specimen writings and signatures were taken. Laxmi Kant PW 34 was Dy. S. P. A. C. D. at the relevant time. He has stated that specimen writings of the accused persons were taken before the Magistrate. He does not say that he was present at that time or identified the accused persons. He has clearly stated in cross-examination, that he cannot say that he himself took the accused persons for specimen signatures to the Magistrate or deputed his Assistant. Thus, the identity of the specimen writings and signatures is not established with the two accused persons Nathulal and Dr. J. P. Sharma. Therefore it cannot be said that the specimen writings and signatures which were sent to the handwriting expert were of the accused persons and thus, their comparison with disputed writings does not connect the accused persons with the crime.

18. The indents are said to have been placed under the signatures of Dr. J. P. Sharma who at the relevant time was A. D. H. S. Udaipur. The R. Rs. were also in the name of A. D. H. S. Udaipur. Nathu Lal was Personal Assistant to the Principal, R.N.T. Medical College, Udaipur. There is no direct evidence that the three R. Rs. Ex. 23, P. 3 and P. 20 were received by Nathu Lal or were delivered to Nathu Lal by Dr. J. P. Sharma, A. D, H. S., Udaipur or anybody from his office. R. R. Ex. P. 20 as per statement of Himmat Singh, P. W. 13 was received in the office of the A. D. H. S. and was given to B. L. Verma, Store Keeper. The endorsement of that R.R. was recorded in the office. There is no direct evidence that the endorsement on R.R. Ex. P. 25 and P. 3 is in the hand of accused Naihulal. The only evidence is of Nand Ram, P. W. 2 who had brought the goods covered by R.R. Ex. P. 3, The learned Special Judge has discussed the evidence of Nand Ram, P. W. 2 and has not placed, reliance on it as far as delivery of medicines to Nathulal is concerned. It is really surprising that Nand Ram was a peon attached with the Principal, R.N.T. Medical College and that he had come to know that the medicines are meant for A. D. H. S., Udaipur and Nathu Lai had no connection with A. D. H. S., Udaipur but still he takes delivery of the medicines from the railways and delivers them at the house of Nathulal when Nathulal was not even present. He is said to have taken the packets in a tonga but the tonga driver has not been examined. He would have at least corroborated that the packets from the railway station were taken to the house of Nathulal, Thus, the view of the evidence of Nand Ram, PW 1 taken by learned Special Judge cannot be said to be such which calls for any interference. We may state here that; because of the reasons already stated once it is not proved that the various invents were signed by Dr. J. P. Sharma or his signatures were forged by Nathulal the entire case of the prosecution becomes doubtful.

19. For the reasons stated above, there is no force on merits in the State appeal and the same is hereby dismissed.


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