K.S. Sidhu, J.
1. The two appeals listed above arise out of one and the same judgment of conviction and sentence, and can therefore be quite conveniently disposed of together. By his judgment and order dated, April 22, 1982, the learned Special Judge Jaipur convicted and sentenced the appellants as follows:
Brij Mohan and Narain Lal Nirala
(i) Rigorous imprisonment for one year, and a fine of Rs. 500/- or, in default, further simple imprisonment for two months each under Section 120B, Indian Penal Code;
(ii) Rigorous imprisonment for one year and a fine of Rs. 1000/-, or in default, further simple imprisonment for four months each, under Section 161, Indian Penal Code;
(iii) Rigorous imprisonment for one year and a fine of Rs. 1000/- or, in default further simple imprisonment for four months each under Section 468, Indian Penal Code;
(iv) Rigorous imprisonment for, one year and a fine of Rs. 1000/- or, in default, further simple imprisonment for four months each, under. Section 5(2), read with Section 5(1)(d), Prevention of Corruption Act, 1947.
(i) Rigorous imprisonment for six months and a fine of Rs. 500/-, or, in default, further simple imprisonment for two months under Section 120B, Indian Penal Code;
(ii) Rigorous imprisonment for one year and a fine of Rs. 1000/-, or in default, further simple imprisonment for four months under Section 468, Indian Penal Code.
All the substantive sentences were ordered to run concurrently. The fourth accused, namely, Satish Chandra, was convicted under Sections 120B and 468 of the Indian Penal Code. Instead of passing an order of sentence immediately in his case, the trial judge found it just and proper to release him on probation of good conduct for. three years.
2. As already stated, Brij Mohan, Narain Lal Nirala and Govind Lal have appealed against their conviction and sentence as mentioned above. Satish Chandra seems to be satisfied with his release on probation of good conduct. He has not preferred any appeal against the order of conviction passed against him.
3. The case of the prosecution which resulted in the conviction and sentence of the three appellants as aforementioned may be shortly stated here. Narain Lal Nirala and Brij Mohan were posted as Vaid and Up-vaid, respectively in the Government Ayuro-vedic Aushdhalaya, Galta Road, Jaipur at the material time in 1973. Khem Chand Tojwani, Additional Superintendent of Police in the Anti-Corruption Department of the State Government received information that corruption was rampant in the said Aushdhalaya. The information was that Brij Mohan was in the habit of, preparing bogus medical bills for Government servants on payment of 35 per cent of the amount of the bills by way of illegal gratification. Govind Lal, the proprietor of M/s Navin Ayuro-vedic Stores, Bhindo-ka-rasta Chandpole Bazar Jaipur and his servant, Satish Chandra were also parties to this criminal conspiracy. The modus operandi for the commission of these crimes, as agreed to between the conspirators, was that Brij Mohan would prepare a false out-door patient ticket in the name of Government servant in a back data, and arrange to get bogus cash memos relative to that ticket, prepared by Govindlal and Satish Chandra of the Navin Ayuro-vedic Store. Narain Lal Nirala was also a party to this criminal conspiracy inasmuch as he used to verify such cash memos and issue the requisite essentiality certificate to enable the government servant concerned, i.e. the, so-called patient, to realize payment of the amount of bogus cash memos from the Government. The amount of illegal gratification realised by Brij Mohan used to be divided by Brij Mohan, Narain Lal Nirala, Govindlal and Satish Chandra between them.
3A. On receipt of this information, Khem Chand Tejwani, the Additional S.P. in the Anti-Corruption Department, decided to lay a trap to catch the culprits and thus put an end to this racket. He passed an order, Ex. P/1, dated June 5, 1973, directing constable Jagdish Singh, one of his subordinates, in the Anti-Corruption Department, to contact Brij Mohan, posing as a teacher in the Education Department of the Government, and request him for necessary documents including essentiality certificate, for claiming Rs. 100/- from the Government in the form of reimbursement for medical expenses. The directions contained in Ex. P/1 further required Jagdish Singh to put up the appearance of haggling over the amount of gratification which may be demanded by Brij Mohan and eventually settle the transaction at the amount agreeable to Brij Mohan, and pay such advance as demanded.
4. In compliance with the aforementioned order, Jagdish Singh went to the Government Ayuro-vedic Aushdhalaya, Galta Road, Jaipur and met Brij Mohan there on June 5, 1973 at about 1.15 P.M. He pretended to Brij Mohan that he was a school teacher in need of raising Rs. 100/- by way of false re-imbursement of medical bills and that if Brij Mohan would help prepare the necessary documents for the purpose, he would be willing to pay him a reasonable portion of that amount by way of gratification for the said job. Brij Mohan demanded Rs. 35/-for giving Jagdish Singh the essentiality certificate and the cash memos for Rs. 100/- duly signed and verified by the competent authority. Jagdish requested Brij Mohan to reduce the amount of Rs. 35/- but eventually agreed to pay the same on an assurance by Brij Mohan that he would reduce it appropriately at the time of final payment. As desired by Brij Mohan, Jagdish Singh paid him Rs. 10/- by way of advance. Brij Mohan promised in return that he would prepare the documents get them signed and verified and keep them ready for delivery to Jagdish Singh after a day or two against payment of the remaining amount of Rs. 25/- by Jagdish Singh to him.
5. Jagdish Singh reported compliance of his assignment, as above, to Tejwani on June 5, itself in the form of a written endorsement on the back of the document Ex. P/1. Tejwani entered these proceedings in the police roznamcha vide report No. 117, dated, June 5, 1973, 3-30 P.M. He decided to take further action in the matter on June 7, 1973.
6. On June 7, 1973, Tejwani initialled and treated 5 currency notes (2 ten-repee notes 2 two-rupee notes and 1 one-rupee note) with phenolphthalien powder and delivered them to Jagdish Singh for passing them on to Brij Mohan as part of the transaction already settled and mentioned above. This was done in the presence of, among others, a motbir by the name of Mohanlal Sharma. While the raid party headed by Tejwani was waiting at a descreet distance and place away from the Aushdhalay Jagdish Singh went inside and requested Brij Mohan to deliver the necessary documents to him. Brij Mohan told Jagdish Singh that the latter could collect the documents on June 8 and should in the meantime pay the remaining amount of Rs. 25/-. Jagdish Singh declined to make the payment stating that he would do so only after obtaining delivery of all the necessary documents including the essentiality certificate which had not been prepared till that time. In an attempt to impress Jagdish Singh that he was sincerely trying to perform his part of the bargain and in order to inspire confidence of Jagdish Singh in himself, Brij Mohan returned the amount of Rs. 10/- paid earlier to Jagdish Singh stating that the latter could pay the entire amount of Rs. 35/- together at the time of the delivery of the documents to him.
7. Jagdish Singh reported these goings-on to Tejwani and told him that Brij Mohan would be expecting his visit to the Aushdhalaya on June 8, Tejwani treated all the six currency notes (3 ten-rupee notes, 2 two-rupee notes and 1 one-rupee note) with phenolphthalien powder -once again and delivered them to Jagdish Singh, Carrying these notes with him, Jagdish Singh entered the Aushdhalaya on June 8, 1973 at about 5.20 P.M. Other members of the raid party including Tejwani kept waiting at a proper distance so that without being noticed by Brij Mohan they could be in a position to receive a signal from Jagdish singh after the money had been passed on to Brij Mohan. On entering the Aushdhalaya, Jagdish Singh discovered that Satish Chandra one of the co-accused, and a woman peon were also present there. Brij Mohan gave two blank forms Ex. P/7 and Ex. P/8 to Jagdish Singh talking him that the same should be filled in by him with the help of cash memos, Ex. P/5 and Ex. P/6, which were also passed on to him. Jagdish Singh filled in the blank C to D in these forms and also copied out into those documents the numbers, dates, and other contents pf cash memos mentioned above. Brij Mohan affixed the necessary seals on Exs. P/5, P/6, P/7 and P/8. He then prepared the outpatient ticket Ex. P/9, in the presence of Jagdish Singh. The names of medicines were already written in Ex. P/9. Brij Mohan wrote out the name of patient as 'Jagdish Singh', the name of illness as 'Udar Vikar' the date as '3.5.1973', and the serial number of out-patient register as '1068' in the presence of Jagdish Singh. Brij Mohan then went into the room of Narain Lal Nirala, talked to him for some time and then came back to his own room. It was then that accused Satish Chandra brought to the notice of Brij Mohan that the cash memos Ex. P/5 and P/6 suffered from errors in totaling and that since the cash memos were prepared at his end there would be no difficulty in making the corrections in them even after they had been signed by Narain Lal Nirala in token of the so-called verification. At about that time, Narain Lal Nirala came to the room of Brij Mohan and asked for money. Brij Mohan told him that money would be paid to him in a short while and that in the meantime he should sign all the documents.
8. The story given by Jagdish Singh further goes that Narain Lal Nirala thereupon signed Ex. P/5, Ex. P/6, Ex. P/7, and Ex. P/9 at various places in his presence. He also wrote the date '13.5.1973' marked 'Z' and made his initials marked 'Y' on Ex. P/9 in the presence of Jagdish Singh. Brij Mohan then gave these documents to Satish Chandra who went into a room and filled in the entry marked 'P' in Ex. P/7 and Ex. P/8 after looking into some register. Satish Chandra returned these documents to Brij Mohan who told Jagdish Singh that they were ready for him to collect against payment. Jagdish Singh gave the marked and powdered currency notes of Rs. 35/- to Brij Mohan and asked him to return some amount as per his earlier assurance. Brij Mohan returned the one-rupee currency note and pocketed in his shirt the remaining 5 notes (3-ten-rupee notes and 2 two-rupee notes) making a sum of Rs. 34/-only. Brij Mohan delivered the documents Ex. P/5, Ex. P/6, Ex. P/7 and Ex. P/9 to Jagdish Singh.
9. After making the payment and collecting the documents, as aforementioned, Jagdish Singh came out of Aushdhalaya and gave the pre-arranged signal. The raid party headed by Tejwani and Jagdish Singh entered the Aushdhalaya. On being pointed out by Jagdish Singh Brij Mohan was accosted by Tejwani who introduced himself and asked Brij Mohan to return the currency notes of Rs. 35/-which he had received by way of bribe from Jagdish Singh. Brij Mohan at first denied the receipt of any money by him from Jagdish Singh, but soon realised the futility of such denials, and surrendered the five currency notes making a total amount of Rs. 34/-. The numbers of the five notes tallied with the numbers already recorded by Tejwani in the memo Ex. P/4 before they were powdered and delivered to Jagdish Singh. On enquiry by Tejwani about the one-rupee currency note which had yet to be recovered, Jagdish Singh gave the same to Tejwani stating that Brij Mohan had returned it to him in response to his request to reduce the amount of gratification as per his own earlier assurance to reduce it at the time of receiving the final payment. Jagdish Singh also handed over the documents Exs. P/5, P/6, P/7 and P/9 to Tejwani. Tejwani arrested both Brij Mohan and Narain Lal Nirala on the spot. Satish Chandra had in the meantime disappeared from the Aushdhalaya. Tejwani tested the hand-wash and pocket-wash of Brij Mohan for the presence of phenolphthalien1 and found the result positive. He seized the register. Article 12 containing entries in respect of out-door patients for May 3, 1973, He discovered that the name of Jagdish Singh did not figure anywhere in that register as a patient. Instead, it contained the name of one Ganga Ram at serial No. 1068 on May 3, 1963. Thus, the out-door ticket Ex. P/9 giving the serial number 1068 of the out-door patients' register as the serial number concerning Jagdish Singh, turned out to be bogus and fictitious.
10. In the meantime, Shri Joshi, and Dy. S.P. who had gone out in search of Satish Chandra returned along with Govind Lal and some record of Navin Ayuro-vedic Store. Govind Lal was arrested as a participant in the criminal conspiracy and in the commission of other crimes in pursuance of that conspiracy.
11. Tejwani sent a detailed memorandum of the proceedings taken by him to the police station on June 9, 1973, at 1 A.M. A formal F.I.R., Ex. P23 was registered by the S.H.O. concerned on the basis of that memorandum. Satish Chandra was arrested on June 9, 1973 at 12-40 P.M.
12. On completion of the investigation Tejwani filed a charge-sheet in the Court of the Special Judge, Jaipur alleging that all the four accused, namely, Brij Mohan, Narain Lal Nirala, Govind Lal an Satish Chandra had entered into a criminal conspiracy to make money by way of illegal gratification to be realised from State and Central Government servants working in Jaipur in return for helping them realise money from the Government concerned' on the basis of bogus medical bills supported by false and forged documents prepared by the accused.
13. The learned Special Judge jointly tried all the four accused. Brij Mohan was charged with the commission of all the four crimes. The charge-sheet framed against him consists of four counts, i.e., under Sections 120B, 161 and 468, IPC and Section 5(2) read with Section 5(1)(d), Prevention of Corruption Act, 1947. Narain Lal Nirala was charged under Section 120B and Section 468, IPC and under Section 5(2) read with Section 5(1)(d), Prevention of Corruption Act, 1947. The charge-sheets framed against Govind Lal and Satish Chandra consist of two counts each, i.e.; under Sections 120B and 468, IPC. As already stated, Brij Mohan and Narain Lal Nirala have been convicted and sentenced under Sections 120B, 161 and 468, IPC and also under Section 5(2) read with Section 5(1)(d), Prevention of Corruption Act, 1947. Govind Lal has been convicted and sentenced under Sections 120B and 468, IPC.
14. One of the two appeals filed against the aforementioned order of conviction and sentence is by Narain Lal Nirala alone. Narain Lal Nirala was not charged and tried for the commission of the offence against Section 161, IPC. He could not therefore be lawfully convicted and sentenced under Section 161, IPC. His conviction and sentence under Section 161, IPC must therefore be and is hereby set aside. His appeal will now have to be considered only in respect of his conviction and sentence under the remaining three counts.
15. Brij Mohan and Govind Lal have jointly filed the second appeal against their convictions and sentences.
16. As already stated, both the appeals involving the three appellants, namely, Narain Lal Nirala, Brij Mohan and Govind Lal, have been heard together and. are therefore being disposed of by a common judgment.
17. All the three appellants stand convicted and sentenced for the commission of the offence of criminal conspiracy punishable under Section 120B, IPC. The gist of the charge under Section 120B is that between Feb. 8, 1973, and June 9, 1973 they mutually agreed to make wrongful gains at the cost of the State Government of Rajasthan and the Central Government in the shape of gratifications to be received from unscrupulous State and Central Government employees by making false documents enabling such employees to realize from their respective employers money on the basis of false medical bills supported by forged and false documents.
18. Before discussing evidence in support of this charge, it will be useful to bear in mind the provisions of Section 10, Evidence Act. This section is of crucial importance in the context of proof of criminal conspiracy. In Bhagwan Swarup v. State of Maharashtra AIR 1965 SC 682 : 1965 (1) Cri LJ 608, the Supreme Court analyzed the provisions of this section as follows:
(i) There shall be a prima facie evidence affording a reasonable ground for the Court to believe that two or more persons are members of a conspiracy:
(ii) If the said condition is fulfilled anything said, done or written by any one of them in reference to their common intention will be evidence against the other;
(iii) Anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them;
(iv) It would also be relevant for the said purpose against another who entered the conspiracy, whether it was said, done or written before he entered the conspiracy or after he left it, and
(v) It can only be used against a co-conspirator and not in his favour.
In other words, the rule of evidence as embodied in Section 10, Evidence Act is that if there is some prima facie evidence, which is also sometimes referred to as the foundation material, from which the Court may entertain the belief, as distinguished from absolute satisfaction or conviction, that two or more persons have conspired to commit an offence, then it would be perfectly lawful for the Court to admit in evidence acts, declarations and conduct of one conspirator in reference to the common intention of all, against all the conspirators. It is for this reason that in a charge of criminal conspiracy to commit an offence, as in the instant case, although no overt act need be proved to prove the charge, overt acts are still proved, for direct evidence of conspiracy is rarely available. Such overt acts are relied on and proved as forming part of purpose, common design and co-operative conduct thus proving an agreement to commit the offence.
19. This case is no exception, for here also ho direct evidence could be available to prove the agreement between the four accused to commit various offences for the purpose of making wrongful gains at the cost of the State and Central Governments, in the manner explained in an earlier part of this judgment. The prima facie evidence or foundation material which induces a reasonable belief in the existence of such agreement or conspiracy is furnished by their mutual association and dealings. Narain Lal Nirala and Brij Mohan were admittedly posted as Vaid and Up-Vaid in the same Aushdhayalaya during the relevant period. There is unimpeachable evidence on the record to prove that they were jointly dealing with documents, like out-door patient tickets, essentiality certificate, register of bur-patients and register of medical bills relating to Government servants entitled to reimbursement of medical expenditure from their employer. Govind Lal and Satish Chandra who were dealers in Ayuro-vedic medicines and who had been frequently issuing cashmemos which were checked and verified by Brij Mohan and Narain Lal Nirala in many other cases were therefore coming in contact with these two officials quite often. The fact that the cash memos Ex. P/5 and Ex. P/6 purporting to have been issued by Govind Lal and Satish Chandra on May 3, 1973 and May 13, 1973, respectively, in favour of Jagdish Singh had already reached the custody of Brij Mohan an Narain Lal Nirala on June 8, 1973 without Jagdish Singh having ever seen or handled these documents before that date is emphatic proof of mutual association and co-operative conduct between all the four accused.
20. I have therefore no hesitation in holding that there is prima facie evidence or foundation material giving rise to the belief (not conviction) that all the four accused had conspired together to commit the offences of forgery for the purpose of Cheating the State and. Central Governments and to commit the connected offences of taking illegal gratification and criminal misconduct through Brij Mohan and Narain Lal Nirala. Now that there is prima facie evidence available to induce a belief in the existence of a conspiracy between these four accused, it would be legally permissible to refer to the declarations, overt acts and conduct of each pf the accused in proof of the charge of conspiracy against all the four. Let me now. proceed to discuss the evidence on the charge of conspiracy which of course would now include declarations, overt acts I and conduct of each accused to be used against the others.
21. PW Jagdish Singh says that when he went to the Aushdhalaya on June 8, 1973 at about 5 P.M., he found Satish Chandra accused already present there. Satish Chandra admitted this fact in his statement under Section 313, Cr.P.C. Jagdish Singh further says that while he began to fill in the essentiality certificates Ex. P/7 and Ex. P/8 concerning him as per instructions of Brij Mohan, Satish Chandra began to write the essentiality certificate concerning one Indra. These documents were seized by Tejwani. Both Ex. P/8 and essentiality certificate concerning Indra which had yet to be signed by Narain Lal Nirala are to be seen lying in the file Article 12A on the record. This goes to prove that Satish Chandra who had been working for Govind Lal at the latter's medical store known as the Navin Ayuro-vedic Store was present in the Aushdhalaya for business connected with and arising out of the conspiracy between the accused. He was lending a helping hand in the preparation of essentiality certificates and other documents.
22. It has also come in the evidence of Jagdish Singh that Satish Chandra took the essentiality certificates Ex. P/7 and Ex. P/8 concerning Jagdish Singh into a room and came back after making writings marked 'P thereon. This further proves the concert and co-operative conduct between the accused.
23. Jagdish Singh further says that Satish Chandra declared in his presence that since Ex. P/5 and Ex. P/6 had been prepared at their Navin Ayuro-vedic Store, it would not present any problem to him to make the necessary corrections in their totals and to make the corresponding corrections in the counter-foils of these documents in their record even after they had been signed and verified by Narain Lal Nirala. This was a suggestion made by Satish Chandra to Brij Mohan so that delivery of these documents against payment by Jagdish Singh may not have to be further postponed. The suggestion commended itself to Brij Mohan. He therefore got the documents signed by Nirala immediately and delivered them to Jagdish Singh. This declaration by Satish Chandra can be used in evidence against all the accused to prove the charge of conspiracy.
24. As already stated, cash memos Ex. P/5 and Ex. P/6 purporting to have been prepared by the Navin Ayuro-vedic Store on May 3, 1973, and May 13, 1973 respectively were available with Brij Mohan on June 8, 1973, when Jagdish Singh contacted him' in the Aushdhalaya. Satish Chandra who is connected with the said store and preparation of these memos was also present there. He told Brij Mohan that any error in the totaling of the amount in these documents should not pose any problem for they could always correct the same even after signatures by Nirala. A reference to the Bill Book, Article 11, of the Navin Ayuro-vedic Store seized by Tejwani would show that the said book was already being prepared in such a manner as to leave scope for any manipulations which may become necessary in furtherance of the object of the criminal conspiracy. Some blank bills were left unfilled and they are still lying sandwitched between the bills duly filled in this Bill Book. One such blank bill is serial No. 2523 lying blank between serial No. 2524 concerning Jagdish Singh and serial No. 2522 concerning Bhagwati Devi. In fact, the name written on serial No. 2523 would show that it was intended to be used, if necessary, concerning the bogus medical bill of Jagdish Singh himself. All this would prove ample concert between Govind Lal, Satish Chandra and Brij Mohan.
25. Turning now to the role of Narain. Lal Nirala in this conspiracy, it will be seen that there is enough evidence to prove the co-operative conduct between him and Brij Mohan. Jagdish Singh (PW. 1) has deposed that Narian Lal Nirala signed and verfied Ex. P/5, Ex. P/6, Ex. P/7 and Ex. P/9 at various places in his presence and at the instance of Brij Mohan. He also recalled that before Nirala signed these documents, Brij Mohan had affixed the necessary seals on them. He further stated that the out-patient ticket, Ex. P/9, in which the names of medicines had already been written by some one before he saw it on June 8, evening, had been completed by Brij Mohan and Nirala, acting in concert with each other, in his presence. According to him, Brij Mohan wrote the words and figures, 'Jagdish Singh', 'Udar Vikar', '3.5.1973' and '1068' in Ex. P/9 in his presence. In his statement under Section 313, Cr.P.C., Brij Mohan did not deny the fact that he had made these writings in the presence of Jagdish Singh. All that he could do in this behalf was to evade reply by saying that he has no recollection if he made those writings. So, it can be safely held that Brij Mohan made these writings in Ex. P/9.
26. Similarly, Narain Lal Nirala also actively participated in preparing the document, Ex. P/9 Jagdish Singh says that Nirala appended his initials, marked 'Y' in Ex. P/9 in his presence. He further says that Nirala also wrote the date '13.5.1973' in Ex. P/9 in his presence. Though Nirala denied in his statement under Section 313, Cr.P.C. that he had initialed Ex. P/9 and wrote the date '13.5.1973' in its margin indicating the so-called second visit of a patient named Jagdish Singh to the Aushdhalaya for consultation on May 13, 1973, I am fully satisfied that these writings are by Nirala. It will be seen that the cash memo Ex. P/6 relates to May 13, 1973. It had therefore become necessary to indicate a second visit by Jagdish Singh to the Aushdhalaya on May 13, 1973. That is why Nirala had to write '13.5.1973' on Ex. P/9 at the time of signing and verifying this and the connected documents.
27. A perusal of the out-door patients register, Article 12 would further confirm the existence of criminal conspiracy in a naked form. Brij Mohan forged the outpatient ticket Ex. P/9 on June 8, 1973, and ' wrote on it the date '3.5.1973' in an attempt to show that the document had in fact been prepared on May 3, 1973. He made a false entry therein that Jagdish Singh had visited the Aushdhalays as an. out-door patient on May 3, and that he was found suffering from 'Udar Vikar'. He made another false entry to the effect that the entry of Jagdish Singh's visit as out-ddbr patient had been made in the relevant register at serial No. '1068'. Now the register, Article 12, would show that the entry serial No. 1068, dated, May 3, 1973, as made therein relates to a patient named Ganga Ram. There is no entry at all in that register of the so-called visit by Jagdish Singh as out-door patient either on May 3 or for that matter on any other date. This means that Brij Mohan made false and fictitious entries in Ex. P/9 for the purpose of serving the object of this conspiracy. Similarly, Nirala wrote the date '13.5.1973' in the margin of this document trying thereby to create the impression that Jagdish Singh had again visited the Aushdhalaya for further treatment on May 13, 1973. As already stated, there is no entry in the register, Article 12, of any visit by Jagdish Singh to the Aushdhalaya as out-door patient on May 13 either. This not only proves that Nirala made a false and fictitious entry in Ex. P/9, but it also proves mutual concert, common design and co-operative conduct between Brij Mohan and Nirala in reference to the common intention of all the four accused.
28. The register, Article 13, relating to reimbursement bills signed and verified by the competent authority, i.e. Vaid Narain Lal Nirala was also seized by Tejwani. It would show that no entry of any reimbursement bill dealt with by Nirala in June, 1973 had been made in that register till it was seized from him on June 8, 1973. Instead, Tejwani discovered lying in this register the unsigned copy Ex. P/8 of the essentiality certificate, Ex. P/7, forged and manufactured by Brij Mohan and Nirala acting in concert with each other.
29. Apart from Ex. P/8, Tejwani discovered a number of other incomplete sets of documents like out-patient tickets, cash memos and essentiality certificates lying in register Article 13. These were all seized and made into a separate bunch of documents placed on the record in the form of file Ex. P/22. Most of these documents were lying unsigned, though they were kept ready for signatures with the seals etc. already affixed on them. The cash memos in most cases are from the Navin Ayuro-vedic Store of accused Govind Lal and Satish Chandra. Some of the corresponding entries are to be found in the counterfoils in register Article 11 of the said store. The counter foils occur as stray documents among clusters of blank foils which clearly betray the conspiratorial character and nature of these documents. This further confirms the existence of the criminal conspiracy between all the four accused.
30. The prosecution has proved that M/s Navin Ayuro-vedic Store of Govind Lal did not have any Ayuro-vedic medicines stored there on June 8, 1973 and that from the evidence collected from local wholesale dealers in Ayuro-vedic medicines, it transpired that this store had not purchased any Ayuro-vedic medicine from them during the year 1973. The shop of Navin Store was found lying closed on June 8, 1973. Tejwani got it depend on June 9, and found no Ayuro-vedic medicine at all lying there. He prepared a list (Ex. A.26) of all the bills issued by M/s Navin Ayuro-vedic Store from January, 1973 to June 1973 and found that Ayuro-vedic medicines of a total value of Rs. 30,000/- purport to have been sold during that period. Tejwani investigated from the local, whole sale dealers and discovered that this store had not purchased any medicine from them during the year 1973. PWs. Banarsi Lal and Ram Nivas Sharma local wholesale dealers deposed that no medicine had been purchased from them by this store. All this would show that Govind Lal had started a shop under the name and style of M/s Navin Ayuro-vedic Store for providing him with a cover to make wrongful gains by issuing fictitious cash memos without selling any medicine: PW. Hari Mohan, the landlord of Govind Lal in respect of the shop bearing the signboard of M/s Navin Ayuro-vedic Store, deposed that Govind Lal used to open the said shop only once a week. This also confirms the conclusion that the shop was started, not with a view to selling Ayurp-vedic medicines, but to provide a smoke-screen for issuing false cash memos.
31. In the face of this massive evidence, it is impossible to believe the explanation put forward by Nirala that he signed all these documents in routine placing reliance on the assurance by Brij Mohan that he had checked them and found them to be correct. Nirala played an equally important and deliberate role in hatching this conspiracy and thereafter in bringing it into fruition by enabling unscrupulous Government servants to realize money from the Government on the basis of false medical bills supported by false and forged documents made available to them by Nirala and Brij Mohan against payment of illegal gratification.
32. For all these reasons, the charge of criminal conspiracy under Section 120B, IPC stands proved against all the four accused including the three appellants.
33. Despite the fact that Jagdish Singh is a police constable working in the Anti-Corruption Department and as such he was naturally interested in the making this trap case a success, I entirely agree with the learned Special Judge that while performing this unpleasant assignment entrusted to him by a superior police official, Jugdish Singh did exactly what may be expected from any conscientious public servant in such a situation and he gave evidence which inspires full confidence. The evidence finds corroboration from documents seized from the possession of the accused. Without dilating on the oral evidence here, I would content myself with a statement that the learned Special Judge has very closely examined the entire oral evidence and given good reasons for placing reliance on it. I agree that the recovery of the tainted money (i.e. currency notes of Rs. 34/-) from the possession of Brij Mohan has been proved to the hilt. It is also proved beyond doubt that he received this amount as gratification for making false documents and delivering them to Jagdish Singh so that the latter could use them for realization money from the Government on the basis of a bogus medical bill. The accused did not offer any explanation as to why he received this amount. It can therefore be legitimately presumed under Section 4, Prevention of Corruption Act, 1947 that he accepted this amount as reward for making false documents and giving them to Jagdish Singh to enable him to realize money from the Government on the basis of false and fictitious medical bill. He has therefore been rightly convicted under Section 161, IPC.
34. I am also in agreement with the learned Special Judge that Brij Mohan-, Nirala and Govind Lal committed forgeries for the purpose of cheating. As already discussed while dealing with the charge of criminal conspiracy, Brij Mohan made false documents for the purpose of cheating and enabling Jagdish Singh to support a false claim to reimbursement from Government. For example, Brij Mohn prepared the so-called out-patient ticket Ex. P/9 on June 8, 1973, but antedated it by writing thereon the date, May 3, 1973. Similarly, Nirala wrote on Ex. P/9 the date May 13, 1973, on June 8, 1973. Thus, both Brij Mohan and Nirala forged Ex. P/9 for the purpose of cheating. They jointly made this false document on June 8, 1973, inasmuch as they were trying to falsely show by such forgery that Jagdish Singh had visited the Aushdhalaya as an out-door patient on both the dates prior to June 8. A reference to Section 464 of the Penal Code which defines the expression 'making a false document' would show that if a person dishonestly or fraudulently makes a document or part of a document with the intention of causing it to be believed that such document or part of a document was made at a time which he knows that it was not made, then the said person is said to make a false document. Section 463, IPC which defines the offence of forgery enacts that if a person makes any false document or part of a document with intent to support any claim or title or to cause any person to part with property or with intent to commit fraud, or that fraud may be committed, he is said to commit forgery. Applying these definitions to the acts committed by Brij Mohan and Nirala in the making of Ex. P/9, I have no doubt whatever that each of them made parts of the documents separately, but acting in concert with each other, and that their acts in that behalf come within the mischief of the definition of 'making a false document' as given in Section 464, and that they made this false document intending that this document shall be used I for the purpose of cheating. Both of them have therefore been rightly convicted of I the charge under Section 468, IPC.
35. Turning now to the charge under Section 5(2) read with Section 5(1)(d), Prevention of Corruption Act, 1947, I find that this charge also stands proved against Brij Mohan on parity of reasoning applicable in respect of the charge under Section 161, IPC and discussed above. There is however no evidence on record to prove this charge against Narayan Nirala. There is no evidence on record to prove that he had obtained for himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means. The charge under Section 5(2) read with Section 5(1)(d), Prevention of Corruption Act as framed against Narayan Lal Nirala therefore fails.
36. In conclusion, I do not find any merit in the appeal of Brij Mohan against the order of conviction recorded against him by the trial Court under Sections 120B, IPC, 161, IPC, 468, IPC and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947. Similarly, I do not find any merit in the appeal of Govind Lal against his conviction under Sections 120B and 468 IPC. The appeal of Narain Lal Nirala is allowed against his conviction under Section 161, IPC and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947. Nirala's appeal to that extent is allowed.
37. Consequently, the order of conviction against Brij Mohan under all the four counts mentioned above and the order of conviction against Narayan Lal Nirala under Sections 120B and 468; IPC are affirmed and the order of conviction against Govind Lal under Sections 120B and 468, IPC is also affirmed. The sentences awarded to the convicts by the Court bike cannot by any means be described excessive or harsh. I would accordingly affirm all the four sentences passed against Brij Mohan under Sections 120B, 161, 468, IPC and under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947. I would also affirm the sentences of Narain Lal Nirala and Govind Lal under Sections 120B and 468 of the Penal Code.
38. At these sentences will run concurrently.
39. Ail the three appellants are on bail. Their bail bonds are cancelled, and they shall be taken in the custody immediately and committed to jail for serving out their respective sentences, A copy of this order shall be communicated to the trial Court for immediate compliance and report to this Court.