B.N. KRISHNAN, J.

( 1 ) THE appellant was accused in c. c. no. 25 of 1984 before the special judge, metropolitan area, bangalore, and he has been convicted for the offence under section 420 read with section 471 (two counts), 420 read with section 511, ipc and also under section 5 (1) (d) read with section 5 (2) and 5 (3-a) of the prevention of corruption act (for short the act) and sentenced to undergo r. . for a period of two years in respect of each of these offences with a direction that the sentences shall run concurrently,

( 2 ) THE case put forward by the prosecution in brief is as follows:accused muniswamy was working as head guard in the security department of hotel ashoka and during the period june and july 1982, he preferred three medical reimbursement bills in a sum of Rs. 524, Rs. 414. 69 ps. And Rs. 2,076. 55 ps. Enclosing the medical bills, on the assertion that be had purchased those medicines for treating his son raja and the bill preferred for a sum of Rs. 524/- was sanctioned only for a sum of Rs. 503. 40 ps. And that amount was paid to the accused, before the other two bills were passed, it came to the notice of the concerned authorities of ashoka hotel that the son of this accused was not ailing and in fact one karunakaran the co-brother of the accused was ailing and he had been admitted to church of south India hospital and the accused had made it appear that that karunakaran was his son raja and whatever amounts were spent for treating that karunakaran, he wanted to get reimbursement from the management of ashoka hotel making it appear that they were purchased for treating his son raja. After the authorities of the ashoka hotel got suspicious about this aspect of the matter, the concerned went to csi hospital and verified that one karunakaran had been admitted as an in-patient and not raja the son of accused and thereafter, the two bills submitted for reimbursement for a sum of Rs. 414. 69 ps. And Rs. 2,076. 55 ps. Were not passed and the concerned authorities lodged a complaint and that was investigated which culminated in submission of the charge-sheet adverted to already.

( 3 ) AFTER securing the presence of the accused, the learned special judge framed charges under section 420, two charges under section 471 and under section 420 read with section 511 and section 5 (1) (d) and 5 (3-a) of the act. After the charges were read over and explained, accused pleaded not guilty to the charges levelled against him and the prosecution examined 16 witnesses in support of its case. To substantiate the charges levelled against the accused, the prosecution has examined the various workers of ashoka hotel including the security officer as p. ws. 3,5,6, 7,8,10,13 and 16, the relatives of the accused as p. ws. 1 and 11, the doctor of arcot who speaks about the treatment of karunakaran as p. w. 12, another doctor of kanchipuram who speaks about the treatment of karunakaran as p. w. 14, the photo studio owner to speak in respect of the photographs produced as p. w. 2, the head master of primary school at hindupur regarding admission of raja as p. w. 4, another head master as p. w. 9 and the investigating officer as p. w. 15.

( 4 ) THE prosecution to bring home the guilt of the accused has to prove the following aspects: (1) that accused was a worker in ashoka hotel; (2) that accused was a public servant for the purposes of the act; (3) that accused submitted the bills exs. P. 4, p. 5 and p. 6 along with the several bills for having purchased medicines etc. , for reimbursement of the sums of Rs. 524, Rs. 414. 69 ps. And Rs. 2,076. 55 ps. And (4) that accused has been paid a sum of Rs. 503. 40 ps. In respect of his medical reimbursement bill ex. P. 5it has to be seen whether the learned special judge was right in holding that these several aspects have been established by the prosecution and whether he was right in convicting and sentencing the accused as adverted to already.

( 5 ) POINT no. 1: p. w. 8 the senior security officer of hotel ashoka has stated that he was working as such from 1st june, 1980 to 31st july, 1982 and accused was working as head guard under him. P. w. 5 the cashier of ashoka hotel has sworn that he was seeing accused working as security guard in hotel ashoka since 1979. The other workers of the said hotel have also stated about accused working as a head guard. This aspect of the statement of several witnesses has not been challenged in the course of their cross-examination nor was anything urged by the learned advocate for the accused to dispute the fact that he was working as head guard in hotel ashoka during the relevant period. Therefore, there could be absolutely no , doubt on this aspect of the matter and the learned sessions judge was perfectly justified in holding that he was working in the said hotel.

( 6 ) POINT no. 2: as per section 2 of the Act, for the purposes of the, public servant means a public servant as defined under section 21 of the Indian penal code. Clauses 2 to 12 of that section refer to the description of various persons who come within the purview of the word public servant as defined in the said section. It is undisputed that clauses 1 to 11 have no application to the facts of this case and what we are concerned is only clause 12 which reads as hereunder:" (TWELFTH, every person (a) in the service or pay of the government or remunerated by fees or commission for the performance of any public duty by the government; (b) in the service or pay of a local authority, a corporation established by or under a central, provincial or state act or a government company as defined in section 617 of the Companies Act, 1956.)"the learned special judge in the course of his judgment has after referring to sub-clause (b) of section 21 of the Indian Penal Code relied upon the decision of the Supreme Court reported in AIR 1964 SC 492, the state of maharashtra v jagatsing charansing arora and another, and has concluded that the view of their lordships of the Supreme Court was if the twelfth clause of section 21 of the Indian Penal Code could be pressed into service in that case, the accused therein would have fallen under the category of a public servant and as such, would have been liable under section 161 of the Indian Penal Code and obviously what applies to an employee of a road transport corporation would apply with equal force to any employee of India tourism development corporation and therefore, concluded that the prosecution had established that accused was a public servant within the meaning of the act. Though the learned judge was perfectly justified in respect of the first part of his reasoning in applying the principle enunciated in the decision of supreme court, the second part of his observation that what applies to a road transport corporation would apply to employees of itdc is not correct. It may be noticed that it is not the case of the prosecution that India tourism development corporation has come into existence by virtue of a state or central enactment. In other words, it is not the case of the prosecution that itdc is a statutory corporation. Therefore, a state road transport corporation which has come into existence by promulgation of a particular statute cannot in any way be compared to India tourism development corporation which is undisputedly not a statutory corporation. The observation of the learned special judge that India tourism development corporation is a corporation established under the Companies Act, is again clearly a mis-statement because it is nobodys case that any particular corporation has come into existence under the companies act. The companies act is an act to consolidate and amend the law relating to companies and certain other associations and by no means could it be said that any company which has been formed to which the provisions of companies act apply has to be treated as a corporation established by the companies act within the meaning of sub-clause (12) (b) of section 21 of the ipc. What was tried to be made out on behalf of the prosecution is that India tourism development corporation is a government company as defined under section 517 of the companies act and therefore, any person in the service of such a government company would come under the said clause. If the prosecution establishes that the India tourism development corporation is a government company within the meaning of the said section, there could be absolutely no doubt that a person working in a subsidiary unit of such a corporation would necessarily be a public servant within the meaning of section 21 of the Indian penal code. Then what remains to be seen is whether prosecution has established that the India tourism development corporation is a government company. Section 617 of the companies act states that for purposes of the said Act, government company means any company in which not less than fifty-one per cent, of the paid-up share capital is held by the central government, or by any state government or governments, or partly by the central government and partly by one or more state governments and it includes also a company which is a subsidiary of a government company. Therefore, the prosecution ought to have placed material on record to hold that not less than fifty-one per cent of the paid-up share capital of itdc is held by the central government or the state governments. On this aspect of the matter, there is absolutely no evidence and the only material placed by the prosecution in this regard is by examination of the then general manager of hotel ashoka as p. w. 16 who has staled that India tourism development corporation is a corporation created under the companies act and it was established in 1965. The booklet containing the conduct, discipline and appeal rules, has been marked as ex. C. 1 through this witness. It is rather surprising that on this elementary aspect of the prosecution case, no evidence has been placed to hold that it is a government company. If one has to accept the statement of p. w. 16, that the India tourism development corporation is a corporation created under the companies act and also the reasoning of the learned special judge, then any other company to which the provisions of companies act would apply could also be taken as a company or corporation created under the companies act and therefore, it would lead one to the absurd result of even the workers of any company which cannot come under the category of government company also coming within the purview of public servant as defined under section 21 of the indian penal code. It is realising the fallacy of the statement of this p. w. 16 and the reasoning of the learned special judge, very rightly no attempt was made on behalf of the state to support the said reasoning. Therefore, it has to be held that the prosecution has failed to establish that itdc is a government company and therefore, it has failed to further establish that the accused appellant fits into the category described in clause (b) of twelfth clause of section 21 of the indian penal code. If that be so, it has to be further held that prosecution has failed to establish that accused is a public servant within the meaning of section 21 of the act.

( 7 ) POINT no. 3: p. w. 10 the assistant manager of the personnel department of hotel ashoka, bangalore, at the relevant time has sworn about the fact that the medical reimbursement bills exs. P. 4, p. 5 and p. 6 were submitted by the accused and that they bear the signature of the accused. He has also stated that as assistant manager, he used to see several papers containing the signature of the accused and therefore, he could identify his signature. The fact that the 3 bills exs. P. 4, p. 5 and p. 6 are signed by the accused and he submitted the same along with their enclosures for reimbursement of the amounts mentioned therein, has not been disputed in the court of the cross-examination of this witness and nothing was also urged on behalf of the appellant to dispute this aspect of the prosecution case. Therefore, there could be no doubt that accused submitted the bills exs. P. 4, p. 5 and p. 6 for reimbursement of the amounts mentioned therein.

( 8 ) POINT no. 4: p. w. 10 has stated that ex. P. 4 was put up before him by the office staff on 3-6-1982 and he passed the bill for Rs. 503-40 ps. And sent it to the general manager for his counter signature and thereafter, it was counter signed by the said general manager and it was sent to the chief accounts officer for payment of the bill. He has further stated that on the basis of the voucher ex. P. 8 prepared in the office of the chief accounts officer he was stating that a sum of Rs. 503-40 ps. Was paid in cash to the accused on 25-6-1982 and ex. P. 9 (a) is the entry made in the individual payment sheet and he could identify the signature of the accused appearing in ex. P. 9 against the said entry. Undisputedly, this p. w. 10 has no personal knowledge with reference to either ex. P. 8 or ex. P. 9. He was not the person who had anything to do with the voucher or the taking of signatures on the individual payment sheet. Ex. P. 8 is a voucher for a sum of Rs. 12,766. 37 ps. Received by cheque drawn in favour of one k. Narayana rao, cashier. That entire amount came under the head of account medical expenses. There is absolutely. Nothing in this voucher to show that the sum of Rs. 503. 40 ps. Relating to the medical reimbursement bill ex. P. 4 was part of this amount of Rs. 12,766. 37 ps. For which the cheque was issued in favour of one k. Narayana rao, cashier. The details of the various amounts making this sum of Rs. 12,766. 37 ps. If furnished could have provided material to find out whether this sum of Rs. 503. 40 ps. Had been included in the same. That has not been produced and that cashier narayana rao has not been examined. The individual payment sheet ex. P. 9 must necessarily have been prepared by the cashier and the aspect relating to the preparation of that sheet could have been again spoken to by the persons who prepared the said sheet. P. w. 10 has no doubt stated that ex. P. 9 contains the entry ex. P. 9 (a) showing payment of Rs. 503. 40 to the accused and that has been signed by him. We find the seal beneath the sheet ex. P. 9 signed by the assistant and the chief accounts officer to the effect that it had been passed for payment of Rs. 12,766. 37 ps. This seal gives an indication that it must have been passed before payment and there cannot be any question of it having been passed for payment after payment is made. All these aspects could have been made clear by examining the concerned assistant or the chief accounts officer who had something to do with preparation of exs. P. 8 and p. 9 and the encashment of the cheque referred to in ex. P. 8 and the further payment made to different persons pursuant to the same. Curiously enough none of these persons has been examined and no explanation whatsoever is forthcoming for the non-examination of these persons. Therefore, even accepting the testimony of p. W. 10 that ex. P. 9 bears the signature of the accused, one cannot jump to the conclusion that the sum of Rs. 503-40 ps. Mentioned therein has in fact been paid to the accused.

( 9 ) WITH these findings, we should proceed to examine whether the learned sessions judge was right in holding that the guilt of the accused for the various offences had been made out even with the finding that the prosecution has failed to establish that the sum of Rs. 503. 40 ps. In respect of the bill ex. P. 4 has in fact been paid to the accused, it would fall in line with the other two bills viz. , exs. P. 5 and p. 6 and it has still to be seen whether at least it could be held that the guilt of the accused for the offence under section 420 read with section 511, ipc has been made out.

( 10 ) THE gravity of the charge levelled against the accused lies in a very narrow compass. It is not the case of the prosecution that the various medical bills enclosed to exs. P. 4, p. 5 and p. 6 are fabricated ones. It is also not the case of the prosecution that accused had not purchased the various medicines as described in the enclosures to exs. P. 4, p. 5 and p. 6. It is the specific case of the prosecution that raja the son of the accused described in these bills exs. P. 4, p. 5 and p. 6 was not a patient and in fact one karunakaran who happened to be the co-brother of the accused was ailing and it was that karunakaran that had been admitted to the csi hospital and All these medicines and amounts mentioned in the exs. P. 4, p. 5 and p. 6 had been spent for that karunakaran, but accused had made it appear as if he had spent those amounts for his son raja and thereby, he had committed the offence of cheating and also the attempt to commit cheating. On this aspect, it bas to be seen whether the prosecution has established that raja the son of the accused was not having any ailment at All and that the various medicines and expenses as per the enclosures to exs. P. 4, p. 5 and p. 6 were not used for the said raja. The prosecution has tried lo establish this aspect of the matter by presuming the fact that accused had made it appear in exs. P. 4, p. 5 and p. 6 that his son raja had been admitted as an in-patient in csi hospital and that the person who had been admitted therein was not raja but karunakaran. In none of these bills exs. P. 4, p. 5 and p. 6 do we find a mention that raja had been admitted an in-patient in csi hospital. Only as against the column name and address of the doctor treating the patient, it has been mentioned in these three exhibits as csi hospital, bangalore. There is absolutely nothing in these documents indicating or giving an impression that raja the son of the accused bad been admitted as an in- patient in the said hospital. Therefore, even assuming the evidence tendered by the several workers of ashoka hotel who are stated to have gone to csi hospital and found some person other than raja in the said hospital, there is no scope to jump to the conclusion that accused has cheated or attempted to cheat or that the various medicines and expenditure as per the enclosures of exs. P. 4, p. 5 and p. 6 were not in fact made for the ailment of raja the son of the accused. In fact, when the learned High Court government pleader was questioned as to on what basis the investigating officer and the several witnesses and the learned public prosecutor who conducted the case were under the impression that accused had given the impression under these bills that his son raja had been admitted into csi hospital, he could not point out any basis far formation of such a kind of impression by All the concerned. Suffice it to say, that there is absolutely no basis in any of these documents to form such an impression in respect of the representation made by the accused in these bills. If that be so, then it should have been established by other evidence by securing the several persons connected with the csi hospital to show that at no point of time, raja the son of accused had been treated in the said hospital and no prescription or bill was given for treatment of the said raja. No person from the said hospital has been examined to establish this aspect of the prosecution case. No acceptance explanation is also forthcoming for the non-examination of these witnesses who could have proved the aspect that raja the son of the accused was not having any kind of ailment and no expenditure had been made for treating his ailment as per the enclosures to exs. P. 4 to p. 6.

( 11 ) THE prosecution has placed some material to show that karunakaran the cobrother of the accused was not keeping well and that he had been treated in various other hospitals both in arcot and kanjeevaram and he had been examined by doctors p. Ws. 12 and 14. P. w. 1 the nephew of accused who was working at the relevant time at hindupur, Andhra Pradesh, has been examining to show that karunakaran died about a year prior to his examination before court and to his knowledge raja the son of accused had not undergone any operation. No material has been elicited from him that in the ordinary course he would have derived information regarding the operation on the son of accused and if that material has not been placed, the fact that to his knowledge he had not come to know that raja had undergone operation by itself cannot be pressed into service to hold that raja had never undergone any operation. P. W. 11 the mother of karunakaran has been examined to show that she received the letter from annugam the husband of elder sister of accused to the effect that operation was going to be conducted on karunakaran. Even assuming the case of the prosecution that karunakaran the co-brother of the accused was not keeping well or that he underwent operation, whether it be in csi hospital or any other hospital, that by itself will not prove the important ingredient of the prosecution case that the several amounts spent on the medicines or otherwise as per the enclosures of exs. P. 4 to p. 6 had in fact been spent on that karunakaran and not raja the son of the accused. Therefore, the fact that karunakaran had any ailment or that he underwent any operation cannot in my consideration view be pressed into service to prove this important ingredient of the prosecution case. P. w. 8 the senior security officer who is stated to have gone to csi hospital after entertaining suspicion in respect of the genuineness of the bills submitted by the accused and the persons who had gone along with him have also not provided any material to show that raja had not been treated in the said hospital at any time. So long as that material is not forthcoming, the mere fact that when they went they did not find raja in that hospital or that they found somebody else in a particular bed by itself cannot be of any significance to establish the essential ingredient to be made out by the prosecution in a case of this kind.

( 12 ) THEREFORE, on the most important aspect the prosecution has miserably failed to place any material to show that raja the son of accused was never having any ailment and he had not been prescribed any medicines by csi hospital at any time and that the various medical bills and other expenses as per the enclosures of exs. P. 4, p. 5 and p. 6 had not been made to treat the son of the accused. If on this most important aspect the prosecution has failed to place the necessary material, it is clear that there is no scope to held that accused has committed cheating or attempted to cheat and much less could it be held that his submission that these bills or receipt of the amount in respect of ex, p. 4 would amount to misconduct within the meaning of the act. This would be sufficient to set aside conviction and sentence awarded by the learned special judge. Incidentally, it may also be noticed that the learned special judge has also convicted the accused for the offence under section 471 of the Indian penal code. That section reads as hereunder:" whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. "what is a forged document has been defined by section 470, ipc as a false document made wholly or in part by forgery. Forgery itself has been defined by section 463 of the Indian Penal Code and making a false document has been defined under section 464. Those sections read as hereunder:"463. Whoever makes any false document or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. 464. A person is said to make a false document first. who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed; or secondly. Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alteration; or thirdly. who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or the nature of the alteration. "even accepting the entire prosecution case, it would be a case of maximum cheating, attempt to cheat and misconduct and not making a false document or forgery and using a forged document as genuine within the meaning of section 471 of the indian penal code. It may be noticed that it is not the prosecution case that any of the enclosures made to exs. P. 4 to p. 6 are fabricated ones. As adverted to at the very initial stage of the judgment, the very specific case of the prosecution is that the various expenses were incurred for treating karunakaran and not for raja. There- fore, the various amounts have been spent and various medicines as per those enclosures have in fact been purchased is not disputed. It is not the case of the prosecution that there is any forgery so far as exs. P. 4 to p. 6 are concerned. The case of the prosecution is that by these reimbursement bills, accused has made a false claim. Any document where a false claim has been made cannot be said to be a false document within the meaning of section 464 of the Indian penal code. . even on this aspect of the matter, fee. Learned High Court government pleader could not urge anything to sustain the finding of the learned special judge that the offence under section 471, ipc has been committed, even if one were to assume that the entire case of the prosecution in this regard is true. Even in that view of the matter, it is clear that there was absolutely no scope for the learned special judge to have convicted the accused for the offence under section 471, jpc.

( 13 ) THUS, it is clear that on the established facts, there was absolutely no scope for the learned special judge to hold that the guilt of the accused for any of the offences with which he had been charged had been made out. Therefore, it is clear that the conviction recorded and the sentence awarded by the learned special judge should be set aside.

( 14 ) IN the result, the conviction and sentence awarded by the special judge are set aside and the accused appellant is acquitted of the charges under sections 47ft, 471 (on two counts), 420 read with section 511 of the Indian penal code, section 5 (l) (d) read with section 5 (2) and section 5 (3-a) of the act his bail bonds shall stand cancelled.

( 15 ) THE appeal is allowed accordingly.