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

CORRUPTION CASE NO:-25.COMPUTER I.D. NO:36014R0034322006.DATE OF INSTITUTION:02.03.2006DATE 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.

J U D G M E N T

The case of the prosecution is that Dr.

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

1

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

2

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

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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, he paid Rs.4,200/- to Dr.

R.S.Dhaliwal on 28.03.1995 and kept

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

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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 patient was operated on

01.05.2001. On the direction of Dr.

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

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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

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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 of two valves. Dr.

R.S.Dhaliwal handed over the drafts to

Surinder Singh Uppal. The patient was

operated on 26.11.1998 and two Starr

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

7

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

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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

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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.

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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

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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/

interpolations were made were sent to Govt. Expert of

Questioned Documents (for short GEQD). He gave

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. PW1 Dr. V.K. Batra, Professor, Department of Anesthesia.

II. PW2 Dr. V.K. Grover, Professor, Department of Anesthesia.

16

III. PW4 Dr. R.K. Sharma, Deputy Medical Officer.

IV. 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 Private

Secretary to the Head of the

Department.

IX. PW14 Dr. Deepak Puri, who joined PGI

as Junior Resident and worked as Senior

Resident and as Assistant Professor

in CTVS.

X. PW15 Dr. Rana Sandip Singh,

Additional Professor, Department of

CTVS.

XI. PW16 Dr. R.S. Kanwar, Associate

Professor, Department of CTVS, IGMC,

Shimla.

XII. PW18 Dr. Devinder Mohan, the then

Senior Resident, who worked as Senior

17

Resident in the department of CTVS from January 2000 to December 2002.

XIII. PW19 Dr. Gangadhar. He did senior residency from department of CTVS from January 2001 to December 2003.

XIV. PW20 Smt. Satnam Kaur. She worked as Stenographer in the department of CTVS from 1991-1992 to 2001.

XV. PW23 Sh. Jagmohan Singh, Superintendent Purchase.

XVI. PW 26 K.K.Sharma. He remained posted as Senior Lab. Technician, Technical Assistant and Perfusionist from 1971 to 2002.

XVII. PW31 Daya Dhar, Assistant Cashier.

XVIII. PW47 Suman Arora, Senior Assistant, Accounts Branch.

The patients or their wards.

I. PW22 Jai Singh- Ward of patient Dola Ram.

II. PW24 Ashok Kumar- Ward of patient Vikram Singh.

III. PW25 Dilbag Rai- Ward of patient Sunder Sham.

IV. PW27 Mohinder Kaur- ward of Patient Baldev Singh.

V. PW28 Manohar Lal- ward of Patient Smt. Darshna Devi.

VI. PW29 Gali Ram- ward of Patient Leela Devi.

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VII. PW35 Nirmal Singh-Ward of Patient Surinder Kaur.

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

IX. PW37 Satnam Singh- Ward of patient Amarjit Kaur.

X. PW38 Hari Singh- Ward of Patient Smt. Amriti Devi.

XI PW39 Idrish ward of Patient Gulzar.

XII. PW41 Jeet Ram- ward of Patient Shokat Ali.

XIII. PW44 Neter Singh-Ward of patient Savitri Devi.

XIV. PW45 Draruv Raj- ward of Patient Sharmila.

XV. PW46 Gurmail Singh- ward of Patient Gurnam Singh.

XVI. PW 48 Satpal Singh- ward of Patient Santosh Devi.

XVII. PW49 Rani Devi- ward of Patient Balwinder Singh.

XVIII. PW 50 Raghbir Singh- ward of Patient Sanjogita.

XIX. PW51 Paras Ram- ward of Patient Kamlesh Kumari.

XX. PW57 Jasbir Singh- ward of Patient Babli.

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The Suppliers/representatives.

I. PW21 Kewal Kumar Seth, C&F Agent of TTK Health care.

II. PW30 Sh. Sandeep Ghaisas Distribution Manager, Edwards Life Sciences India Pvt. Ltd.

Bank Officers.

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

II. PW Mandeep Singh, Senior Manager, Centurian Bank of Punjab, Sector 35-C, Chandigarh.

III. PW17 Sh. Rachana Ram Pal, Chief Manager, State Bank of Patiala, New Delhi.

IV. PW32 J.R. Thakur, Chief Manager, State Bank of India, Dharamshala.

V. PW33 Lalit Kumar, Vice President, Centurian Bank of Punjab, Sector 26, Chandigarh.

VI. PW40 Jagir Singh, Senior Manager, Punjab and Sind Bank, Sector 17, Chandigarh.

VII. PW42 Jeet Singh, the then Officer in Punjab & Sind Bank Branch, Sector 17, Chandigarh.

VIII. PW54 M.L. Gupta, Special Assistant, State Bank of India, PGI Branch, Chandigarh.

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.

II. PW 53 Anil Singla- In whose presence specimen signatures/handwritings of Surinder Singh Uppal were taken.

III. PW 56 Yog Raj- in whose presence specimen handwriting/signatures of Surinder Singh Uppal were taken.

Witnesses as to Miscellaneous matters.

I. PW3 Dr. Raman Nijawan, SMO, Radiology, General Hospital, Sector 16, Chandigarh.

II. PW11 Surinder Singh Parmar, the then Assistant Excise and Taxation Commissioner, Chandigarh.

III. PW34 Ashok Kumar- he handed over the record pertaining to reimbursement of medical bills of patient Isro Devi.

IV. PW43 Harbilas- He handed over the record pertaining to medical reimbursement of patient Sunder Shyam.

V. PW52 Harminder Singh, Manager (Vigilance) FCI.

VI. PW 55 Ram Pal Assistant Registration Branch, Panjab, University, Chandigarh.

VII. PW60 Surinder Kumar Dabra, Senior

21

Assistant, Office of Director,Health Services-cum- Principal Medical Officer.

Investigating Officer.

I. PW61 Jai Singh Inspector CBI.

Approver.I. PW58- Surinder Singh Uppal.

12. In his statements recorded under Section 313 of

Code of Criminal Procedure, when confronted with

incriminating circumstances, the accused pleaded

innocence.

13. 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. Paul Medical Hall2. 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 heart operations. Thereafter the lists

started being given to patients or their

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 about approximate

expenditure involved in the operation. The

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 Aortic

21mm 17mm

23mm 19mm

25mm 21mm

27mm 23mm

29mm 25mm

31mm 27mm

The AHVs of Star Edwards and Machhi brands

consisted of following sizes :

Mitral Aortic

1m 8A

2m 9A

3m 10A

4m 11A

5m 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 notes. The operation notes were

always written by 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 Uppal’s marriage the social

interaction between the families also continued

as both of them i.e my and Surinder Singh

Uppal’s 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. Private Tuitions

2. Sold books (Agent)

3. 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. Paul medical Hall

2. 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 Uppal’s 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

Uppal’s 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 payments could not be

connected to allegations of profit 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 I campaigned for or referred the

patients/wards to Surinder Singh Uppal’s

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. Infection

vi. Myocardial infarction

vii. 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

mal- functioning 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 in order to prejudice the PWs

against me the PWs were fed 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.

R.S.Dhaliwal committed various acts of

commissions and omissions with dishonest

intention?

18. 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. Neither the Agenda Item No.17 nor the

minutes 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 that the material examined included the

statements of the witnesses and other relevant

documents.

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 torture was

S.S.Uppal. Learned counsel contended that the

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 of S.S.Uppal do not

corroborate this version inasmuch as

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 instances. Regarding the

payment of Rs.24,400/- by 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

for the accused, it will be necessary to find out, in the

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 til they

have been admitted in 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

excellence of the system and the

closeness with which it has been

followed, affec t the weight of the

evidence of an entry, not its

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

in the sense that the main columns are that of receipt

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. Before we take up the evidence which, according

to the 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. No.

Patient's Name Size supplied Size implanted

1. Santosh Devi 3M 2M

2. Surinder Kaur 8A & 3 M 3M & 9A

3. Baldev Singh 27 MM 21 MM

4. Amriti Devi 27MM & 21MM

27MM & 19MM

5. Shaukat Ali 27MM 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 Hi-

Tech 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/-

+Rs.320/-+ Rs.5,000/-+Rs.15,000/-.Thereafter on

30.11.1994, another sum of Rs.,5410/- was received

from Dr. Dhaliwal by way of another instrument.

Therefore, the total amount, so received, was

Rs.26,000/-. From the statement of 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-in-

slip 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 and since both of them settled in

Chandigarh, social interaction between the families

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. The explanation does not convince the court.

Apart 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. A perusal of the above would reveal a pattern.

The 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. The Court feels that the statement of PW-58

inspires 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 co-

accused 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 Vent-

cum-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 to fleece the

patient.

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 operation note in the patient file

(Ex.PW-10/1) of Sanjogita, she was operated on

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

94

(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 and the patient was operated upon

26.11.1998.

From the patient file Ex.PW-10/22 of Om

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 the set of valves to the

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.

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. The entry No.45 at

Page No.5 of open heart register Ex.PW-6/1 also

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.

103

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 cross-

examination, 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

109

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

111

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

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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

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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 the bill was handed

over to him after the discharge of Gulzar. This

contradiction, however, is not material. What is

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 Edwards”in 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

121

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 question:-

Wasn't it the duty of Medical

Superintendent Office to send the

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 the witness had stated in her cross-

examination that whenever the supplier or his

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

122

statement of PW-20 would make it clear that through out

her effort was to save Dr. R.S.Dhaliwal. This is why

despite having admitted that she had collected

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 M/s. Hi-tech Surgical

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

123

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.

124

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

125

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

126

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

127

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

128

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,

130

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

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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 to Surinder Singh Uppal by the

accused.

3. 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.

77. To my mind, none of the grounds cited by the

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

143

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

144

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

146

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 without any recommendation by Dr.

R.S.Dhaliwal.

86. The statements of DW1, DW2 and DW4 are

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. It has not been the case of the

prosecution that the Dr. R.S.Dhaliwal was making

recommendation to all the patients to buy

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

147

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

149

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

150

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.

151

92. Faced with this situation, learned counsel for the

accused 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. Here both the conspirators were

known. 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

152

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. His

evidence gets adequate corroboration from 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 120-

B 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

153

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.

154

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

155

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

156

defence counsel who have ably assisted the Court in

bringing this case to logical conclusion.

Pronounced: Special Judge,02.03.2009 Chandigarh.

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

` Special Judge,

Chandigarh.

157

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

158

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

mitigating circumstances in favour of convict Dr.

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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: (Jagdeep Jain)03.03.2009 Special Judge,

Chandigarh.

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