Delhi District Court
6 vs The State Of Tripura on 5 November, 2012
1
IN THE COURT OF SH. N. K. SHARMA, SPECIAL JUDGE
(PC ACT)-02 DELHI.
CC NO. 05/99
CBI
VERSUS
1. NEERAJ KUMAR NARANG,
S/O SH. D.D.NARANG,
R/O A-100, AMAR COLONY,
NEW DELHI.
2. MOHD.IRFAN,
S/O MOHD. YUNUS,
R/O F-50, MURADI ROAD,
BATLA HOUSE, TARUN NAGAR,
NEW DELHI.
3. ASHOK KUMAR SINGH,
S/O SH.RAJ BAHADUR,
R/O KHORA COLONY,
SHAHDARA, DELHI.
4. ASHOK RAI,
S/O RAMJI LAL,
R/O 28, LIG FLATS,
PEHLADPUR, SURAJ KUND ROAD,
NEW DELHI.
Date of Institution : 22.04.1996.
Date of Arguments : 15.10.2012.
Date of Judgment : 31.10.2012.
1 of 54
2
JUDGMENT
1. This judgment will dispose off the CBI criminal case referred to herein above filed by the CBI on 22.4.1996.
2. Brief facts as per the case of prosecution are that this case was registered on 27.3.93 on the complaint of Sh. R. K. Saini, Vigilance Officer, MTNL, against Sh. R. K. Gera and some officials of MTNL, New Delhi. It is further alleged in the complaint that on having come to know that an unauthorized STD/ISD,PCO was being operated at B-59, Daya Nand Colony, New Delhi. A surprise check was conducted simultaneously on the above said premises and exchange on 26.3.93 after taking the precaution to guard various vulnerable points. Sh. R. K. Gera, owner of the above said premises did not allow the team to enter the premises and escaped from the spot. However, on inspection, 2 parallel telephones were found working in the premises and telephone at the first floor was offering STD/ISD calls to the customers. On further inspection, it is further alleged in the complaint that telephone no. 6449827 was working in place of actual number 6451754 and that STD facility was available on diverted telephone no. 6449827. It is further alleged in the complaint that official address of telephone number 2 of 54 3 6449827 is A-102, Amar Colony, New Delhi was found locked and that diversion was detected from MDF. In this way, Sh. R. K. Gera had cheated the Department of MTNL by running an unauthorized racket, in connivance with MTNL staff.
3. During investigation, it was revealed that telephone number 6451754 was allotted to Ravinder K. Gera and was installed at his residence i.e. B-59, Daya Nand Colony, New Delhi and was without STD facility. Telephone number 6449827 was officially installed at A-102, Amar Colony, with STD facility.
4. Investigation further revealed that the accused persons namely accused no.1 Neeraj Kumar Narang, accused no.2 Mohd. Irfan, accused no. 3 Ashok Kumar Singh and accused no. 4 Ashok Rai had entered in to a criminal conspiracy with each other and Sh. Ravinder Kumar Gera (approver in this case) during the year 1993 with the object to run a private and illegal/unauthorized STD/ISD racket, by diverting his telephone number 6451754 on some other telephone connections from within the Nehru Place, Telephone Exchange by tampering with the lines unauthorizedly and illegally. Investigation has also revealed that in pursuance of this conspiracy accused no. 1 Neeraj Kumar Narang and 3 of 54 4 accused no. 2 Mohd. Irfan with the help of accused no. 3 Ashok Kumar Singh and accused no. 4 Ashok Rai started the operation of running illegal STD/ISD booth from the residence of Sh. Ravinder Kumar Gera from 1.3.93. During operation of this racket accused no. 1 Neeraj Kumar Narang and accused no. 2 Mohd. Irfan managed the running/operation of booth for providing STD/ISD facility @ Rs. 20/- per minute in contravention of I. T. Act. Accused no.3 Ashok Kumar Singh and accused no. 4 Ashok Rai both have abused their official position as public servants employed with MTNL and while working at Nehru Place Exchange as Regular Mazdoor/MDF and Regular Mazdoor/FRS respectively, tampered with telephone connections numbers 6451754 and 6449827 and illegally diverted the former on latter. It has been also established during investigation that while telephone number 6451754 installed at the residence of Ravinder Kumar Gera did not have STD/ISD facility, the latter was provided with these facilities.
5. Further, during investigation conducted so far it is also established that in pursuance of the said conspiracy, illegal/unauthorized STD /ISD facilities were provided by the above said accused persons from House no. B-59, Daya Nand Colony, New Delhi up to 26.3.93 by 4 of 54 5 charging Rs. 20/- per minute from the various customers, and as a result of which 6,87,472 calls worth Rs. 7,56,037.00 were made from this place from 01.03.93 to 26.3.93 and a loss was caused to MTNL by the above said accused persons and wrongful gain was caused to the accused persons themselves. It has also come on record that the proceeds of this illegal racket were divided between the accused persons and Sh. Ravinder Kumar Gera. The role of accused no. 1 Neeraj Kumar Narang in providing various instruments which were utilized in running of this racket is also proved during investigation.
6. It has come on record that all the accused persons by entering into a criminal conspiracy have diverted the telephone number 6451754 to 6449827 and provided unauthorized/illegal STD/ISD facilities to various customers at rate cheaper than official rates and thereby caused wrongful loss to the MTNL and wrongful gains to themselves.
7. All the accused persons have been charge sheeted for offences u/s 120-B read with section 420 IPC and 13(2) r/w 13(1)(d) of PC Act, 1988 and 25 Indian Telegraph Act.
8. Sh. Ravinder Kumar Gera from whose premises this racket has been run was granted pardon on 8.3.95 by the court of Sh. Mahavir 5 of 54 6 Singhal, the then Ld. MM, New Delhi u/s 306 Cr. P.C. Sanction for prosecution of accused no. 3 Ashok Kumar Singh and accused no.4 Ashok Rai has been obtained from the Competent Authorities.
9. After taking cognizance, all the accused persons were summoned to appear in the court and on their appearance, they were supplied with the copies of the documents.
10. After hearing the arguments advanced by Ld. Counsel for parties on point of charge and after going through the record, my Ld. Predecessor vide his separate order dated 30.10.2000 held that there are sufficient grounds for framing of charge for the offences punishable u/s 120-B, r/w 420 IPC and 13(2) r/w 13(1)(d) of PC Act, 1988 and 25 of Indian Telegraph Act against all the accused persons and for substantive offences u/s 420 IPC and 25 of Indian Telegraph Act against accused no. 1 Neeraj Kumar Narang and accused no.2 Mohd. Irfan. Further for substantive offences u/s 420 IPC, 13(2)r/w 13(1)(d) of PC Act 1988 and 25 of Indian Telegraph Act against accused no.3 Ashok Kumar Singh and accused no. 4 Ashok Kumar Rai.
11. Accordingly, on 21.11.2000 my Ld. Predecessor framed the charges for the offences punishable u/s 120-B, r/w 420 IPC and 13(2) r/w 6 of 54 7 13(1)(d) of PC Act, 1988 and 25 of Indian Telegraph Act against all the accused persons. Charges for substantive offences u/s 420 IPC and 25 of Indian Telegraph Act are also framed against accused no. 1 Neeraj Kumar Narang and accused no.2 Mohd. Irfan. Charges for substantive offences u/s 420 IPC, 13(2) r/w 13(1)(d) of PC Act 1988 and 25 of Indian Telegraph Act are also framed against accused no.3 Ashok Kumar Singh and accused no. 4 Ashok Kumar Rai, to which they pleaded not guilty and claimed trial.
12. In support of its case, CBI has examined as many as 34 witnesses.
13. PW-1 is Sh. R. K. Saini, Retd. Vigilance Officer(MTNL) who made the complaint to SP/ACB/CBI. He proved his complaint as Ex.PW1/A bearing his signatures at point A and stated that contents of his complaint are true.
14. PW-2 Sh. Y. P. Chopra, Retd. AE (Vigilance)MTNL, has deposed that on 26.03.1993, he was called by Sh. R. K. Saini (PW-1) in his office and told him to make a surprise check at Daya Nand Colony where some diversion of telephone was reported. Teams were constituted for inspection and in his team, there was one JE Mr. Surender 7 of 54 8 and one AE namely Mr. Duggal. He further deposed that during inspection, it was found that a telephone was working in that premises which was originally meant for Amar Colony. The telephone was got tested by making two STD calls and found that the telephone was having STD facility also. The address of the telephone was confirmed by the other team from the record of the MTNL. While recording his testimony, this witness was declared hostile by Ld. PP for CBI as he resiled from his previous statement recorded under Section 161 Cr. P. C. He was confronted with his statement Ex.PW2/A and during the cross examination conducted by Ld. PP, he admitted the prosecution version and stated that he could not state some facts correctly due to the lapse of time since it is an old case.
15. PW-3 Sh. B. K. Jain, SDE, MTNL, deposed that on the instructions of PW-4 Sh. S. C. Duggal, AE (Vigilance), he went to B-59, Daya Nand Colony to verify the address because it was known that some illegal ISD/STD calls were being made from that premises.
16. PW-4 Sh. S. C. Duggal, Sub Divisional Engineer, MTNL, has deposed that he was told by his Director Vigilance Sh. J. R. Gupta that some STD calls are being made from B-59, Daya Nand Colony and he 8 of 54 9 was asked to check this. He further deposed that he was not having the telephone number, he searched in the record of Fault Control of Daya Nand Colony from Nehru Place Exchange and it came to light that two telephone numbers i.e. 6451754 and 6450407 are working in B-59, Daya Nand Colony. He verified from the record then it came to light that 6451754 is working at one B-59, Daya Nand Colony, whereas the other number 6450407 is working at B-57, Daya Nand Colony and both the numbers were not having STD facility as per the Exchange record. He deputed PW-3 B. K. Jain, working under him as JTO, to make enquiry from the field, who informed him that B-57 premises is having a display board of STD/ISD PCO and B-59 is a three storeyed building. PW-4 further deposed that all was brought in the notice of higher officials and it was decided to inspect both the premises alongwith the Nehru Place Exchange Staff.
17. PW-4 further deposed that on 26.3.93 a surprise check was made both premises numbers at B-57, Daya Nand Colony as well as B-59, Daya Nand Colony.
18. PW-5 is Sh. H. P. Gupta, SDE (Admn.), MTNL. He stated that he was directed by his Vigilance Officer Sh. R. K. Saini (PW-1) to 9 of 54 10 accompany the team to Nehru Place. He further deposed that they traced the number by dialing a number 6449827. This witness was declared hostile by Ld. PP for CBI as he resiled from his previous statement recorded under Section 161 Cr. P. C. He proved his Statement Ex. PW-5/A during the cross examination conducted by Ld. PP. He was confronted with his statement Ex.PW5/A on the point of presence of CBI official.
19. PW-6 is Sh. Niranjan Singh, Divisional Engineer, Okhla Telephone Exchange, FRS, New Delhi. He has proved the seizure memo Ex.PW6/A bearing his signatures at point A. Vide this seizure memo, photo copy of history sheet of telephone number 6444388 was seized. He has also proved Ex.PW6/B and Ex.PW6/C bearing his signatures at point A respectively which were prepared from the original record. He has also not identified any of the accused persons present in the court as he never seen them.
20. PW-7 is Ravinder Mohan. He has identified the accused Neeraj Kumar and stated that Neeraj Kumar was having an STD/PCO. While recording his testimony, this witness was declared hostile by Ld. PP for CBI as he resiled from his previous statement recorded under 10 of 54 11 Section 161 Cr. P. C. He was confronted with his statement Mark X. He denied having made any such statement to CBI. He did not identify the accused Mohd. Irfan present in the court as he never met him.
21. PW-8 Sh. A. K. Sanan, is the witness in whose presence search cum seizure memo Ex.PW8/A was prepared and he identified his signatures at point A. He stated that vide this seizure memo some documents mentioned at serial no.1 to 8 were seized in his presence.
22. PW-9 Harinder Singh, is the witness in whose presence the premises of Ravinder Kumar Gera was searched by the CBI on 27.3.93 and Search cum Seizure memo Ex.PW9/A was prepared in his presence and he signed the same at point A. He also proved file Ex.PW9/B containing documents from serial no. 1 to 26 which were exhibited as Ex.PW9/C-1 to C-26. He also stated that all the said documents bear his signatures at point A.
23. PW-10 is Sh. D. N. Rai, Asst. Manager (Vigilance) FCI. He stated that on 27.4.93 he accompanied CBI officials to Jamia Nagar and CBI officials conducted the search of house which belonged to Mohd. Irfan who was present in the house. he further stated that whatever incriminating documents mentioned at serial no. 1 to 28 were found in 11 of 54 12 the house were seized vide search cum seizure memo Ex.PW10/A in his presence as well as in presence of Narain Singh. This memo bears his signatures at point A on all the pages. This witness could not identify accused Mohd. Irfan due to lapse of time.
24. PW-11 Sh. Narain Singh, Asst. Manager, FCI. This witness along with D.N.Rai visited CBI office and from CBI office accompanied the CBI officials to a house in Batla House, Jamia Nagar. This witness states that searches of house of Mohd. Irfan was conducted and articles mentioned at serial no.1 to 28 were seized vide memo Ex.PW10/A bearing his signatures at point B.
25. PW-12 is Ravinder Kumar Gera. He stated that on 27.4.93 search of his house was conducted in his presence. He proved recovery memo Ex.PW12/A vide which remote bell was recovered on his pointing out. He further proved his statement recorded vide Ex.PW12/B bearing his signatures at point A. He further stated that he made voluntary statement before the judicial officer and same is Ex.PW12/C bearing his signatures at point A.
26. PW-13 is R. C. Meena, Dy. Director, Office of Regional Director(ER), Department of Company Affairs, Ministry of Finance. He 12 of 54 13 stated that on 30.4.93 he went to residential house of one Mr. Narang along with CBI team from where some articles were recovered and seized vide memo Ex.PW13/A bearing his signatures at point A. He also stated that on same day they visited two premises, one at Amar colony and another at Daya Nand Colony. He also proved memos Ex.PW12/A and Ex.PW12/B both bearing his signatures at point B. He also signed on the recovered items.
27. PW-14 K. K. Dutta, Sr. Technical Asst. in office of Registrar of Companies, Delhi. He also proved search memo Ex.PW14/A bearing his signatures at point A on both the pages. He also identified his signatures on Ex.PW12/A and Ex.PW12/B at point C and on Ex.PW13/A at point B. He stated that he also signed all the recovered articles.
28. PW-15 Sh. Ramesh Kumar, Asst. Director (Vigilance), Department of Tele Communication, Sanchar Bhawan. He proved the jumper letter Ex.PW15/A bearing his signatures at point A vide which he allotted telephone no. 6444388 and also jumper letter Ex.PW15/B received from record which bears his signatures at point A. He stated that vide this letter he reset dynamic STD on telephone no. 6449827.
13 of 54 14
29. PW-16 is Hardayal (Retd.)Commercial Officer (South-I) who has proved seizure memo Ex.PW16/A vide which documents mentioned at serial no.1 to 3 were seized from him by CBI. He identified his signatures at point A and B. He also proved application Ex.PW16/B bearing his signatures at point A which was seized vide memo Ex.PW16/A.
30. PW-17 Sudhir Gupta is the witness who used to make STD calls to his friend from the telephone installed at B-59, FF, Daya Nand Colony with entry from backside through iron stair case and he used to pay Ravinder Gera for the calls made by him.
31. PW-17 (serial number repeated) Ravinder Singh, Telephone Operator, after seeing the Jumper Letter Ex. PW-15/B, has deposed that dynamic STD was reset on 6449827 by him on the repeated request of accused Ashok Kumar Rai, Regular Mazdoor at Fault Control Room. He further deposed that on the day when he reset the dynamic STD, no application was received from the subscriber. Application was resetting dynamic STD on the above said telephone was received on 26.2.2003.
32. PW-18 Rukam Singh (Retd.)SI, MTNL has stated that he never fitted any telephone at A-102, Amar Colony nor received any 14 of 54 15 order or OB for that purpose in the year 1992.
33. PW-19 Ram Kirpal, and PW-20 Hari Singh both were Regular Mazdoor, MTNL have also deposed on same lines as deposed by PW-18.
34. PW-21 S. L. Magoo, Regional Engineer, MTNL has deposed that he has seen the commercial file of telephone no. 3295885, OB of which was not put up to him by Section JTO. He proved the file as Ex.PW21/A.
35. PW-22 Sh. Prem Singh, Area Manager, MTNL has proved memo Ex.PW22/A vide which jumper letter dt. 24.2.93 Ex.PW15/B was handed over to CBI. In the jumper letter Ex. PW-15/B, resetting of dynamic STD on telephone number 6449827 and other telephone is mentioned.
36. PW-23 M. P. Singh, Chief Accounts Officer, after seeing the Letter dated 27.04.1995 sent by Accounts Officer, Nehru Place Telephone Exchange, has deposed that he was not posted as Accounts Officer in that Branch in that year.
37. PW-24 Virender Singh Dagar, Messenger, has proved the Memo Ex. PW-8/A pertaining to the Search cum Seizure Proceedings in the house of accused Neeraj Kumar. He has also identified the accused 15 of 54 16 Neeraj Kumar Narang @ Sonu in the court.
38. PW-25 Sh.Mahavir Singhal, the then ADSJ, THC, has proved the application Ex. PW-25/A, which was put up before him for recording the statement of accused u/s 164 Cr. P. C. He further deposed that adjournment was granted by him vide his order Ex. PW-25/B at the request of accused Ravinder Kumar Gera. On 06.01.1995, he recorded the statement of accused / applicant Ravinder Kumar Gera Ex. PW-12/C in Chamber of Court Room No. 182, THC, Delhi. He has also identified his signatures on Ex. PW-12/C. He has also proved the certificate Ex. PW-25/C, application Ex. PW-25/D moved by IO/Inspector Rajesh Kumar for copy of statement Ex. PW-12/C.
39. PW-26 Brij Lal is the member of search team, who conducted search at the house of accused Ashok Kumar Rai. He deposed that during house search one motorcycle, telephone wire, telephone cell having push buttons and some papers and documents were seized by CBI team. He has proved Search Memo Ex. PW-26/A.
40. PW-27 Rajinder Lal Dhawan, who was posted as Deputy Chief Personnel during the period early 1982 upto September, 1989. After seeing application for shifting of telephone no. 3295885 in the 16 of 54 17 name of Sh. Ram Dass Ex. PW-7/A (wrongly typed as Ex. PW-7/A instead of Ex. PW-27/A during the examination in chief of PW-27). He has not attested the signature of the applicant / subscriber on the said application. He further deposed that Ex. PW-7/A (wrongly typed as Ex. PW-7/A instead of Ex. PW-27/A during the examination in chief of PW-27) neither bears his signatures nor his stamp. He also deposed that he does not know the applicant Ram Dass of the application.
41. PW-28 Mahender Pal has identified his signatures on letter dated 27.04.1995 Ex. PW-28/A and certified extract of fortnightly meter reading (FMR) Ex. PW-28/B. He deposed that vide this letter, he informed Inspector Rajesh Kumar, CBI about the due bill of Rs. 7,56,037/- on telephone no. 6449827 in the name of Sh. Ram Dass upto period 31.3.1993, which was disconnected on 26.04.1995.
42. PW-29 Javed Siraj, Additional SP, who conducted the house search in Batla House, Zamia Nagar in the house of accused Mohd. Irfan. He has proved his signatures on Ex. PW-10/A. He deposed that the house search was conducted u/s 165 Cr. P. C. on the basis of authorization issued by Inspector Rajender Panwar and IO of the case. He further deposed that on 27.04.1993 and on 30.04.1993 he had also associated 17 of 54 18 with Inspector Rajender Singh Panwar in conducting the house search of accused Ashok Rai in Pul Prahalad Pur Area and house search of accused Neeraj Kumar Narang from Ganesh Provision Store, Amar Colony, Lajpat Nagar. He has identified his signatures on Ex. PW-14/A, Ex. PW-26/A and Recovery Memo Ex. PW-12/A.
43. PW-30 SP S. K. Peshin, is the member of the search team, who conducted the house search at B-59, Daya Nand Colony, New Delhi, of accused Ravinder Kumar Gera. He has identified his signatures on Seizure Memo dated 20.04.1993 Ex. PW-30/A, Seizure Memo dated 21.06.1993 Ex. PW-30/B, Seizure Memo dated 05.07.1993 Ex. PW-30/C, Seizure Memo dated 27.04.1993 Ex. PW-30/D, Seizure Memo dated 10.06.1993 Ex. PW-22/A, Seizure Memos Ex. PW-16/A and Ex. PW-6/A, Seizure Memo dated 27.04.1993 Ex. PW-8/A, Seizure Memo dated 27.04.1993 Ex. PW-26/A, Recovery Memos dated 30.04.1993 Ex. PW-14/A and Ex. PW-12/A, Seizure Memo dated 27.03.1993 Ex. PW-9/A and Ex. PW-9/B. He has also identified his signatures on the statement Ex. PW-12/B and Ex. PW-13/A.
44. PW-31 Rajiv Kumar Chadha, Dy. SP deposed that he did not conduct any investigation in this case.
18 of 54 19
45. PW-32 Inspector Rajesh Kumar conducted the part investigation of the present case. He identified his signatures on Ex. PW-25/A, Ex. PW-25/D, Ex. PW-25/C, Ex. PW-25/E and Ex. PW-25/G. He deposed that after completion of investigation and collecting the documents, he submitted the Charge sheet against the accused persons.
46. PW-33 S. K. Sinha has identified his signatures on Search Cum Seizure Memo dated 27.04.1993 Ex. PW-8/A.
47. PW-33 (serial number again repeated) Additional SP R. S. Panwar has identified the signatures of the then SP R. K. Dutta on FIR Ex. PW-33/A. He further deposed that this case was marked to him by Sh. R. K. Dutta for investigation from 27.03.1993. He has also identified his signatures on Search Memo Ex. PW-9/A, Seizure Memo Ex. PW-30/A, Ex. PW-8/A, Seizure Memo Ex. PW-30/D, Ex. PW-10/A, Ex. PW-26/A, Ex. PW-12/B, Ex. PW-12/A, Ex. PW-13/A, Ex. PW-14/A, Seizure Memo Ex. PW-30/B, Seizure Memo Ex. PW-22/A, Seizure Memo Ex. PW-16/A, Seizure Memo Ex. PW-6/A, Seizure Memo Ex. PW-30/C.
48. He further deposed that the file Ex. PW-33/B was seized vide Memo Ex. PW-30/A at serial no. 1 to 10. The file Ex. PW-33/C was 19 of 54 20 seized vide Memo at serial no. 11. The file Ex. PW-33/D was seized vide Memo at serial no. 13. The file Ex. PW-33/E was seized vide Memo at serial no. 15. He also deposed that he received a letter dated 19.04.1993 from SDO (Phones), Nehru Place, Ex. PW-33/F alongwith various documents which have been annexed in the file Ex. PW-33/F-1. He deposed that four documents which were seized vide Seizure Memo Ex. PW-30/B were collectively placed by him in a file Ex. PW-33/G and three documents which were seized vide Seizure Memo Ex. PW-16/A were collectively placed by him in a file Ex. PW-33/H. Documents seized and mentioned at serial no.1 of Seizure Memo Ex. PW-30/C is Ex. PW-33/J. The OB Register mentioned at serial no. 12 of Seizure Memo Ex. PW-30/A is Ex. PW-33/K.
49. PW-33 has correctly identified accused Irfan and accused Ashok Kumar Singh. He further deposed that he examined various witnesses during his investigation and subsequently he was promoted and transferred to another Branch of CBI and the present case was transferred to some over Investigation Officer for investigation and he handed over Investigation file to the subsequent Investigation Officer.
50. PW-34 Virender Kumar has identified his signatures on 20 of 54 21 Sanction Order Ex. PW-34/A. He has deposed that he accorded sanction of prosecution against accused Ashok Kumar Singh and Ashok Kumar Rai. Before signing the Sanction order, he had gone through the file and applied his mind and having satisfied himself that there was a case, he accorded Sanction for prosecution.
51. After conclusion of the prosecution evidence, statements under Section 313 Cr. P. C. of all the four accused persons were recorded. The accused persons have denied their involvement in commission of offence and have stated that they have been falsely implicated in this case
52. In defence, Accused no. 1 Neeraj Kumar Narang has examined only one witness i.e. DW-1 Deepak Narang and the other accused persons have not led any defence evidence.
53. I have heard final arguments of Learned PP for CBI and Sh. S. C. Gulati, Advocate, Ld. Counsel for accused no. 1 Neeraj Kumar Narang, Sh. R. P. Yadav, Advocate, Ld. Counsel for accused no.2 Mohd. Irfan and Sh. Anand Mishra, Advocate, Ld. Counsel for accused no. 3 Ashok Kumar Singh and accused no. 4 Ashok Rai and perused the record.
21 of 54 22
54. Ld. PP for the CBI has argued that the prosecution has proved its case that all the four accused persons entered into criminal conspiracy with each other and R. K. Gera (approver in the present case) with the object to run a private and illegal / unauthorized STD /ISD racket by diverting telephone no. 6451754 belonging to approver R. K. Gera on telephone no. 6448927 officially installed at A-102, Amar Colony, Delhi with STD/ISD facility at the rate of Rs.20/- per minute. In pursuance of their criminal conspiracy, they caused wrongful loss to MTNL and corresponding gain to themselves to the tune of Rs.7,56,033/-. It has been further argued that prosecution has proved its case beyond reasonable doubts against all the accused persons, hence they may be convicted.
55. It has been argued by Ld. Defence Counsel for the accused no. 1 Neeraj Kumar Narang that the Prosecution has failed to bring any iota of evidence to show the criminal conspiracy between all the accused persons. He further argued that there is no iota of evidence to show the cheating and violation of provisions of Indian Telegraph Act by accused no.1 Neeraj Kumar Narang. He further submitted that there is no evidence except the uncorroborated testimony of Ravinder Gera 22 of 54 23 (Approver). It has been further argued that accused no.1 has been falsely implicated in the present case.
56. He has relied upon the following judgments:-
1. Mrinal Das and Ors. Vs. The State of Tripura,2011(10) SCALES 55.
2. Dudh Nath Pandey Vs State of Uttar Pradesh, AIR 1981SC 911.
23 of 54 24
57. It has been argued by Ld. Defence counsel for accused no.2 Mohd. Irfan that the Prosecution has failed to bring any iota of evidence to show the criminal conspiracy between all the accused persons. He further submitted that accused is innocent and he has been falsely implicated in this case by the Prosecuting Agency i.e. CBI.
58. It has been argued by Ld. Defence counsel for accused no.3 Ashok Kumar Singh and accused no. 4 Ashok Rai that the Prosecution has failed to bring any iota of evidence to show the criminal conspiracy between all the accused persons. He further submitted that no complaint has been lodged on behalf of the person whose telephone connection was diverted. He further argued that there was no evidence on record that there was a telephone connection installed at premises no. A-102, Amar Colony, Lajpat Nagar, Delhi. He further submitted that the Sanctioning Authority has not applied its mind in granting the Sanction for prosecution of accused no. 3 and accused no.4. He further submitted that accused no.3 and accused no.4 are innocent and they have been falsely implicated in this case by the Prosecuting Agency i.e. CBI.
59. He has relied upon the following Judgments:-
24 of 54 25
1. Madan Mohan Singh Vs. State of Uttar Pradesh, AIR 1954 SC 637.
2. P. C. Joshi and another Vs. The State of Uttar Pradesh, AIR 1961 Supreme Court 387.
PUBLIC SERVANT & SANCTION
60. The first point for consideration is as to whether the proper sanction for prosecution was accorded before initiation of prosecution against accused no. 3 Ashok Kumar Singh and accused no. 4 Ashok Rai or not as required under Section 19 (1) of Prevention of Corruption Act, 1988, which is mandatory and reads as under:-
"19. Previous Sanction necessary for Prosecution:-
(1) No Court shall take cognizance of an offence punishable under Section 7,10,11,13 and 15 alleged to have been committed by a public servant, except with the previous sanction, -
(a) in the case of a person who is employed in connection with the affairs of the union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his Office."
25 of 54 26
61. The undisputed position is that accused no.3 Ashok Kumar Singh and accused no. 4 Ashok Rai were working as regular Mazdoor at Telephone Exchange, Nehru Place, New Delhi, and both the accused persons did not dispute this fact in their statement recorded under Section 313 Cr. P. C. Therefore, it stands proved that both the accused persons were public servants within the meaning of Section 19 of the PC Act, 1988.
SANCTION FOR PROSECUTION AGAINST
ACCUSED NO.3 ASHOK KUMAR SINGH AND
ACCUSED NO. 4 ASHOK RAI.
62. The evidence on record shows that on 05.01.1994, the Sanction Order was accorded for launching Prosecution under Prevention of Corruption Act against accused no.3 Ashok Kumar Singh and Accused no.4 Ashok Rai by PW-34 Virender Kumar, who in his deposition deposed that before signing the sanction order, he has gone through the file and applied his mind.
63. On the other hand, Ld. Defence Counsel argued that PW-34 Virender Kumar has not applied his mind and the prosecution sanction was granted in mechanical manner.
26 of 54 27
64. I have gone through the Sanction order Ex. PW-34/A. It is mentioned at para 3 of Ex. PW-34/A that "one Mohd. Irfan S/o Mohd. Yunus R/o F-50, Muradi Road, Batala House, Zamiar Nagar, New Delhi (Approver) developed intimacy with Sh. Ashok Rai who was attending to the telephone complaints and with whom Sh. Mohd. Irfan was frequently talking on the telephone." According to the Sanction Order, Mohd. Irfan was the approver in this case. However, as per Prosecution version one Sh. Ravinder Kumar Gera is the approver in the present case. It is pertinent to mention here that Mohd. Irfan is one of the accused in the present case. This clearly shows that the Sanctioning Authority has not applied its mind while granting the Sanction order.
65. In view of the aforesaid discussion, I hold that the Sanction order Ex. PW-34/A is illegal and invalid.
66. In the present case, all the accused persons entered into criminal conspiracy with each other and Mr. R. K. Gera (approver in the present case) during March, 1993 with the object to run an illegal / unauthorized STD/ISD racket by diverting telephone no. 6451754 belonging to R. K. Gera on telephone no. 6449827 officially installed at A-102, Amar Colony, Delhi, with STD/ISD facility and caused a 27 of 54 28 wrongful loss to MTNL and corresponding gain to themselves to the tune of Rs.7,56,037/-.
67. Section 120-A defines "Criminal Conspiracy", which reads as under:-
"120-A. Definition of criminal conspiracy - When two or more persons agree to do, or cause to be done -
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
68. As per definition of criminal conspiracy U/s 120-A of Indian Penal Code when two or more persons agree to do, or cause to be done,
(a) an illegal act; or (b) an act, which is not illegal by illegal means, such agreement is designated a criminal conspiracy. The essence of offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. The 28 of 54 29 conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration. The gist of offence of conspiracy is an agreement to break the law. In considering the question of criminal conspiracy, it is not always possible to give affirmative evidence about the date of formation of conspiracy, about the persons who took part in the formation of conspiracy, about the object which the conspirators set before themselves as the object of conspiracy and about the manner in which the object of conspiracy was to be carried out. All this necessarily a matter of inference. The essence of criminal conspiracy is an agreement to do an illegal act. Such an agreement can be proved either by direct evidence or by circumstantial evidence or by both. It is not necessary that there should be express proof of the agreement, far from the acts and conduct of the parties, the agreement can be inferred.
69. On the point of criminal conspiracy, it has been held by the Hon'ble Supreme Court in Shiv Narayan Laxmi Narayan Joshi Vs State of Maharashtra, AIR 1980 SC 439, that a conspiracy is always 29 of 54 30 hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from inference drawn from acts or illegal omissions committed by the conspirators in pursuance of a common design.
70. The agreement to conspire may be inferred from circumstances, which raised a presumption of a concerted plan to carry out an unlawful design. A conspiracy need not be established by proof which actually brings the party together; but may be shown like any other fact, by circumstantial evidence.
71. In Kehar Singh and Others Vs State, AIR 1988 SC 1883, it is observed:
"Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on the evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon the circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must require whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the later does. It is however, essential that the offence of conspiracy required some kind of physical manifestation or agreement the express agreement however need not be proved. Nor mutual meetings of 30 of 54 31 the two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient."
EVIDENTIARY VALUE OF APPROVER /
ACCOMPLICE:-
72. In order to understand the correct meaning and application of this term, it is desirable to mention Section 133 of the Indian Evidence Act, 1872 alongwith Illustration (b) to Section 114 which read as under:-
"133. Accomplice :-An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice."
31 of 54 32 Illustration (b) to Section 114 "(b) The Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars."
73. While considering the validity of approver's testimony and tests of credibility, the Hon'ble Supreme Court, in Sarwan Singh S/o Rattan Singh Vs. State of Punjab, AIR 1957 SC 637 has held as under:
"7.... An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and Courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence. It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true. But it must never be forgotten that before the court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an 32 of 54 33 accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered. In other words, the appreciation of an approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver ......"
8....Every person who is a competent witness is not a reliable witness and the test of reliability has to be satisfied by an approver all the more before the question of corroboration of his evidence is considered by criminal courts."
74. The very same principle was reiterated in Mohd. Husain Umar Kochra etc. Vs. K. S. Dalipsinghji and Another etc., (1969) 3 SCC 429, wherein it was held:-
"....The combined effect of Section 133 and 114, Illustration (b) is that though a conviction based upon accomplice evidence is legal, the Court will not accept such evidence unless it is corroborated in material particulars. The corroboration must connect the accused with the crime. It may be direct or circumstantial. It is not necessary that the corroboration should confirm all the circumstances of the crime. It is sufficient if the corroboration is in material particulars. The corroboration must be from an independent source. One accomplice cannot corroborate another."
33 of 54 34
75. The star witness of the present case is approver Ravinder Kumar Gera, who has been examined by the prosecution as PW-12. He has deposed that searches were conducted at his residence on his statement Ex. PW-12/B recorded under Section 27 of the Evidence Act in presence of two independent witnesses namely PW-13 R. C. Meena and PW-14 K. K. Dutta and in pursuance of the said statement, one remote bell and stop watch were recovered and the same were seized by the CBI vide Recovery Memo Ex. PW-12/A. He further deposed that he revealed all the facts at his own with his own sweet will and without any pressure from CBI and his statement Ex. PW-12/C was recorded by the Judicial Officer in the Court.
76. He deposed before the court in his statement Ex. PW-12/C regarding unauthorized and illegal ISD/STD connection being run at his premises B-59, Dayanad Colony, Lajpat Nagar-IV, Delhi by Neeraj Kumar Narang, Mohd. Irfan, Ashok Rai and Ashok Kumar Singh. He further deposed that he know Neeraj Narang, who was residing at 100, Amar Colony, Lajpat Nagar, Delhi, since the year 1990 as he used to come to his house to take video cassettes. He further deposed that few days before 01.03.1993, when Neeraj Kumar Narang came to his house 34 of 54 35 (PW-12) to take video cassette, PW-12 had a long talk with him. PW-12 was not having sufficient income from his video cassette business and he sought his advice to suggest some other business from which he could get sufficient income. On this, Neeraj Kumar Narang gave him a proposal for which one telephone and one house was required if that proposal was acceptable to him. On this. PW-12 told him that telephone was with him and one floor of house was likely to fall vacant.
77. PW-12 Ravinder Gera further deposed that Neeraj Kr. Narang told him that he and his friend Mohd. Irfan were doing the business of getting the STD/ISD calls at cheaper rates and if he wanted he could give him his share that was offered as Rs.1,000/- per day and Rs.3,000/- per month towards user charges of the premises. He further deposed that he like the proposal and he could earn sufficient income to run his house but he was apprehensive also as it was illegal. He asked him to give him 2-3 days to think over.
78. PW-12 Ravinder Gera further deposed that after 2-3 days, accused no.1 and accused no. 2 came to his house and accused no. 2 gave him the same proposal assuring him that there was no risk involved as no outer wiring was required and with the co-operation of MTNL 35 of 54 36 employees, his line in telephone exchange will be connected to STD which will not only a source of good income to him but also there will not be any telephone bill. He also offered him that he can get him (PW-12) introduced to the MTNL officials who would assist them in that job.
79. PW-12 further deposed that accused no. 1 and accused no.2 alongwith accused no. 3 Ashok Kumar Singh and accused no.4 Ashok Rai came to his house. Accused no.3 and 4 assured him that there was no problem in that job as they themselves were employed with MTNL and they would connect his line to STD line in the exchange and in case of any risk, they would remove the STD connect from his telephone line in the exchange. After hearing them, he was satisfied that this business can be done without any risk and he accepted the offer. Accused no.1 and 2 assigned the job to each one of us. Accused no. 3 and 4 were asked to connect the STD line of House no. A-102 to his telephone connection i.e. telephone no. 6451754 as house no. A-102 was lying closed.
80. PW-12 further disclosed that he was asked to dial the number on behalf of customer from ground floor and accused no.1 and 2 told him 36 of 54 37 that their job was to operate from the 1st floor by dialing the customer from 1st floor. He also deposed that it was the duty of accused no. 1 and 2 to keep the accounts and collect the money from customers. Accused no. 3 and 4 were to get Rs.2,000./- per week jointly and he was to get Rs. 1000/- daily and Rs.3000/- towards rent per month. Balance money was to be shared equally by accused no. 1 and accused no.2. After this settlement, he informed that his 1st floor was going to fall vacant on 01.03.1993 and they could start the work on that day itself. On 01.03.1993, STD facility was connected to his telephone.
81. PW-4 Sh. S. C. Duggal, who was posted as Assistant Engg. Vigilance MTNL, Khurshid Lal Bhawan on 24.03.93, has deposed that he was told by his Director Vigilance J. R. Gupta that some STD calls are being made from B-59, Daya Nand Colony and he was asked to check this. As he was not having the telephone number, then he searched in the record of Fault Control of Daya Nand Colony from Nehru Place Exchange and it came to light that two telephone numbers i.e. 6451754 and 6450407 are working in Daya Nand Colony whereas the other number 6450407 is working at B-57, Daya Nand Colony and both the numbers were not having STD facility as per the Exchange record. He 37 of 54 38 further deposed that he deputed Mr. Jain (examined as PW-3 Mr. B. K. Jain), JTO to make enquiry from the field, who informed that B-57 is having a display board of STD/ISD, PCO and B-59 is a three storeyed building.
82. PW-4 further deposed that after this, it was decided to inspect both the premises alongwith the Nehru Place Exchange Staff and on 26.03.93, a surprise check was made. He alongwith other colleagues went to the Nehru Place Exchange and contacted Mr. Mehrotra, the SDO of the area and told him that they want to inspect certain numbers and requested him to accompany them. Thereafter, they made three groups. He alongwith one phone inspector was to inspect B-57 premises and PW-2 Mr. Y. P. Chopra alongwith SDO was to inspect B-59, ground floor and 1st floor. Sh. Surinder Kumar, JTO alongwith JTO of the area were to inspect 2nd floor and 3rd floor of premises B-59 area.
83. PW-4 further deposed that he inspected the premises B-57, Daya Nand Colony alongwith one phone inspector of the area. He made a test call from the number working there to Nehru Place Exchange on telephone number 6461200 and the other person available at the Exchange informed that this number is 6450407, which was already 38 of 54 39 working as per record and no irregularity was found there. Then, he left B-57 Daya Nand Colony and moved towards B-59 to assist his other colleagues. At the rear side of the premises, he found PW-2 Y. P. Chopra alognwith SDO standing there. Some Afgani people were coming from upper side to ground floor from staircase. Then one Afgani came, on enquiry, he told that they used to make STD/ISD calls from the first floor of B-59, Daya Nand Colony and they used to pay Rs.20/- per minute for making call to Afghanistan and they used to pay this amount to Sh. R. K. Gera. Then they all went to the first floor of B-59 and there they found one red colour telephone was lying on the Takhatposh and certain chairs were in the room. They made a test call to Switch room on telephone no. 6461200 from the number working at the first floor of B-59 but it was told by the exchange staff that this number is 6449827. It was confirmed from the record that this number was working with STD/ISD facility. Thereafter, to confirm this, two STD calls were made which were matured. PW-4 further deposed that later on it was confirmed that this number was officially working at A Block, Amar Colony, Delhi.
84. PW-4 further deposed that he has seen Switch Room Record of MTNL, Nehru Place Exchange, which reveal that telephone no.
39 of 54 40 6449827 is dynamic STD reset. As per record shown to him the telephone no. 6449827 was in the name of Ram Dass, A-102, Amar Colony, Lajpat Nagar-IV, New Delhi, which was working at premises B-59, Daya Nand Colony, when they made a surprise check. This shows that this telephone number was found working at B-59, Daya Nand Colony, instead of A-102, Amar Colony, Delhi.
85. PW-2 Y. P. Chopra deposed that PW-1 Sh. R. K. Saini told him to make a surprise check at Daya Nand Colony where some diversion of telephone was reported. Team was constituted for inspection and in his team, there was one JE Surender and AE Duggal (PW-4). He has further deposed that perhaps the number of premises was B-59, Daya Nand Colony, where they conducted the inspection. There was a sign board displaying Bhawani Properties and Video Library. He has also corroborated the testimony of PW-4 S. C. Duggal.
86. PW-3 B. K. Jain has deposed that Sh. S. C. Duggal (PW-4) instructed him to go to B-59, Daya Nand Colony to verify the address because it was known that some illegal ISD/STD calls were being made from that premises. Therefore, a joint surprise check was to be made. He further deposed that when he went there, he found that sign board of 40 of 54 41 ISD/STD PCO was displayed at B-57, Daya Nand Colony and B-59 was the three storeyed building near B-57. He further deposed that accordingly he informed PW-4 S. C. Duggal about the location of the above said premises.
87. PW-3 further deposed that on 26.03.1993 they jointly inspected the premises. He alongwith O. P. Midda, JTO, went to Nehru Place Exchange and contacted one Mr. Chopra DET, Nehru Place Exchange. A telephone number 6461200 was kept on malicious call observation. At 12.50 hrs. a call was received by him on which PW-4 S. C. Duggal was speaking on the line who asked him to identify from which telephone number he was speaking. Accordingly, he saw the TTY print and found that telephone no. was 6467591.
88. He further deposed that at about 13.41 hrs. the call was again received and the number was printed and TTY print as 6449827. Then he told PW-5 H. P. Gupta, who was at MDF in the said building to trace the line and requested Mr. O. P. Midda to go to 644 Exchange to keep the telephone no. 6449827 on observation.
89. PW-17 Ravinder Singh has deposed that dynamic STD was reset on telephone no. 6449827 on the repeated requests of accused 41 of 54 42 Ashok Kumar Rai, Regular Mazdoor at Fault Control Room.
90. PW-5 H. P. Gupta has also corroborated the testimony of PW-3 B. K. Jain.
91. In view of the above discussion, it is clear that the telephone no. 6449827 was working at B-59, Daya Nand Colony, Delhi instead of A-102, Amar Colony, Delhi.
92. Now coming to the loss of MTNL. PW-28 Mahender Pal, who was working as Accounts Officer in the year 1995, at Nehru Place Telephone Exchange, MTNL, New Delhi, has deposed after seeing the letter dated 27.04.1995 Ex. PW-28/A, that vide this letter he informed Inspector Rajesh Kumar, CBI, about the due bill of Rs.7,56,037/- on telephone no. 6449827 in the name of Sh. Ram Dass upto period 31.03.1993. He further deposed that the telephone no. 6449827 was disconnected on 26.04.1995. He has also identified his signatures on certified extract of fortnightly meter reading (FMR) Ex. PW-27/B pertaining to telephone no. 6449827.
93. PW-33 R. S. Panwar, Additional SP, has deposed that the present case was a case of misuse of telephone of MTNL and the same was registered on complaint Ex. PW-1/A made by MTNL against one 42 of 54 43 Mr. R. K. Gera and some unknown officials of MTNL. He further deposed that it was suspected that some documents might be available at the residence of Mr. Gera, so he decided to conduct a search at the residence of Mr. R. K. Gera at B-59, Daya Nand Colony, New Delhi on 27.03.1993 in the presence of PW-9 Harinder Singh. The articles which were found at the residence of Ravinder Kumar Gera were seized vide Seizure Memo Ex. PW-9/A. At the time of search of the house, R. K. Gera was not available at his residence.
94. PW-33 further deposed that on 27.04.1993, in pursuance of disclosure made by Ravinder Gera, who took them to premises No. A-100, Amar Colony, Lajpat Nagar, occupied by accused Neeraj Kumar Narang and Ravinder Kumar Gera informed them that Panasonic Cordless Telephone Instrument and Super Voice Remote Control Bell would be available in the drawing room of the said premises and on entering the premises, Ravinder Kr. Gera pointed out towards accused Neeraj Narang, who then took them to the drawing room where he got recovered Panasonic Cordless Telephone Instrument lying on the television rack and then accused Neeraj Kumar Narang took the members to the basement of the same premises and got recovered a Super Voice 43 of 54 44 Remote Controller Bell. Thereafter, they effected the search of the premises and recovered incriminating documents which are detailed in the memo and seized vide Seizure Memo Ex. PW-8/A.
95. PW-33 further deposed that on the same day i.e. on 27.04.1993, accused Neeraj Kumar Narang revealed to him that Remote Control Bell which was being used at the residence of Ravinder Kumar Gera at B-59, Daya Nand Colony, New Delhi, would be available there and on reaching there, he directed R. K. Gera to produce the Remote Control Bell and accordingly he produced a Veetex Remote Control Bell which was seized vide Seizure Memo Ex. PW-30/D.
96. PW-8 A. K. Sanan has deposed that on 27.04.1993, he participated in Search cum Seizure Proceedings with CBI in the site of Lajpat Nagar, Amar Colony and all the proceedings were conducted in his presence. He has further stated that Search cum Seizure Memo Ex. PW-8/A was prepared at the spot in his presence and he signed on the same after reading the same.
97. PW-24 Virender Singh Dagar and PW-33 S. K. Sinha also corroborated the testimony of PW-33 R. S. Panwar, Additional SP.
98. PW-33 R. S. Panwar further deposed that on the same day i.e. 44 of 54 45 on 27.04.1993, the house search of accused Mohd. Irfan was also carried out by PW-29 Inspector Javed Siraj, on his direction and various documents were recovered and seized vide Memo Ex. PW-10/A.
99. PW-29 Javed Siraj, Additional SP has deposed that on 27.04.1993, he had conducted the house search of Mohd. Irfan in Batla House, Zamia Nagar and during the search the incriminating documents / items were found and seized vide Seizure Memo Ex. PW-10/A.
100. PW-10 D. N. Rai and PW-11 Narain Singh also corroborated the testimony of PW-29 Javed Siraj.
101. After perusal of the Seizure Memo Ex. PW-10/A, it is clear that 1 to 28 articles were recovered from the house of the accused Mohd. Irfan. In the seizure Memo Ex. PW-10/A, at serial no. 26, there is mention of one remote bell and at serial no. 27, there is mention of one Panasonic Telephone (Easaphone) Model No. KX-T3880BH serial No. IDBHA 027561 made in Japan. At serial no. 28, there is mention of one cream coloured push button type telephone make Telematics of MTNL bearing no. FSE 23972 of 18.01.1993.
102. PW-33 R. S. Panwar, Additional SP also deposed that on the same day i.e. on 27.04.1993, the house search of accused Ashok Rai at 45 of 54 46 28, LIG, Pool Prahalad Pur, New Delhi was carried out by him and articles/ documents mentioned in Seizure Memo Ex. PW-26/A were recovered and seized. At that time, accused Ashok Rai was present there.
103. PW-26 Brij Lal has deposed that on 27.04.1993, he and G. S. Bhatia accompanied CBI team for the house search of accused Ashok Rai at Pul Prahalad Pur, New Delhi. During house search, one motorcycle, telephone wire, telephone cell having push buttons and some papers and documents were seized by CBI team vide Seizure Memo Ex. PW-26/A. A sum of Rs.11,000/- was also recovered from the house search of accused Ashok Kumar Rai.
104. PW-29 Javed Siraj, Additional SP, has deposed that on 27.04.1993, he had also associated with PW-33 R. S. Panwar, in conducting the search in the house of accused Ashok Kumar Rai. He further deposed that Memo Ex. PW-26/A was written by him on the dictation of PW-33 Rajender Singh Panwar.
105. After perusal of the Seizure Memo Ex. PW-26/A, it is clear that 1 to 9 articles were recovered from the house of the accused Ashok Kumar Rai. In the seizure Memo Ex. PW-26/A, at serial no. 1, there is 46 of 54 47 mention of one push button telephone (chocolate colour) bearing STPS 8A/1/00436/C9/RRIM make Remington with make of MTNL, at serial no. 2 there is mention of Drop wire black reportedly of MTNL approximately 300 meters. The wire is new. At serial no. 3 of the same, there is mention of Cable PVC of 4 pair approximately 15 meters.
106. PW-33 R. S. Panwar deposed that on 30.04.1993, R. K. Gera made a disclosure statement Ex. PW-12/B, whereby he disclosed that he had concealed the stop watch and remote control bell and he could get the same recovered from his residence at B-59, Daya Nand Colony, New Delhi. The same were recovered and seized by the CBI official vide Recovery Memo Ex. PW-12/A.
107. PW-33 R. S. Panwar further deposed that on 30.04.1993, accused Neeraj Kumar Narang made a disclosure statement Ex. PW-13/A, whereby he disclosed that he had concealed one Panasonic LCD Multi Function Speaker Phone and Panasonic EASAphone-Speaker Phone Dialler (cordless phone) to a building A-100, Amar Colony and he could get the same recovered from there. The same were recovered and seized by the CBI official vide Recovery Memo Ex. PW-14/A in presence of two independent witnesses namely PW-13 R. C. Meena and 47 of 54 48 PW-14 K. K. Dutta, who have also corroborated the testimony of PW-33 R. S. Panwar.
108. PW-29 Javed Siraj has deposed that on 30.04.1993 he had associated with PW-33 Rajender Panwar in the making of recovery at the instance of accused Neeraj Kumar Narang. He has also corroborated the testimony of PW-33 R. S. Panwar.
109. In view of the above, it is clear that the testimony of PW-12 Ravinder Gera (Approver) is corroborated from the testimonies of PW-2 Y. P. Chopra, PW-3 B. K. Jain, PW-4 S. C. Duggal, PW-5 H. P. Gupta, PW-17 Ravinder Singh and PW-28 Mahender Pal and coupled with the fact that incriminating items / articles were recovered from the possession of accused Neeraj Kumar Narang by the CBI team in presence of independent witnesses PW-8 A. K. Sanan, PW-24 Virender Singh Dagar and PW-33 S. K. Sinha; incriminating items / articles were recovered by the CBI team from the possession of accused Mohd. Irfan in presence of independent witnesses PW-10 D. N. Rai and PW-11 Narain Singh and incriminating articles were also recovered by the CBI team in presence of independent witness PW-26 Brij Lal from the possession of accused Ashok Kumar Rai.
48 of 54 49
110. In view of the aforesaid discussion, I am of the opinion that the prosecution has succeeded in proving its case beyond reasonable doubts against accused Neeraj Narang, accused Mohd. Irfan, accused Ashok Kr. Singh and accused Ashok Rai for the commission of offences punishable u/s 120-B r/w Section 420 IPC and Section 25 of Indian Telegraph Act, 1885. The Prosecution has also proved its case beyond reasonable doubts against accused Neeraj Kumar Narang, accused Mohd. Irfan, accused Ashok Kumar Singh and accused Ashok Rai for the substantive offences punishable under Section 420 IPC and Section 25 of Indian Telegraph Act, 1885.
111. Accused Ashok Kumar Singh and accused Ashok Rai are acquitted for the substantive offences punishable under Section 13(1)(d) r/w Section 13(2) of PC Act 1988 since the Sanction order Ex. PW-34/A is held as illegal and invalid.
ANNOUNCED IN THE OPEN COURT TODAY I.E. ON 31.10.2012 (N. K. SHARMA) SPECIAL JUDGE (PC ACT)(CBI):02 DELHI.
49 of 54 50 IN THE COURT OF SH. N. K. SHARMA, SPECIAL JUDGE, (PC ACT)-02 DELHI.
CC NO. 05/99 CBI VERSUS
1. NEERAJ KUMAR NARANG, S/O SH. D.D.NARANG, R/O A-100, AMAR COLONY, NEW DELHI.
2. MOHD.IRFAN, S/O MOHD. YUNUS, R/O F-50, MURADI ROAD, BATLA HOUSE, TARUN NAGAR, NEW DELHI.
3. ASHOK KUMAR SINGH, S/O SH.RAJ BAHADUR, R/O KHORA COLONY, SHAHDARA, DELHI.
4. ASHOK RAI, S/O RAMJI LAL, R/O 28, LIG FLATS, PEHLADPUR, SURAJ KUND ROAD, NEW DELHI.
Date of Institution : 22.04.1996.
Date of Arguments : 15.10.2012.
Date of Judgment : 31.10.2012.
Order on Sentence : 05.11.2012.
50 of 54
51
ORDER ON SENTENCE:-
1. Vide my separate judgment announced on 31.10.2012, accused Neeraj Kumar Narang, accused Mohd. Irfan, accused Ashok Kr. Singh and accused Ashok Rai are held guilty and convicted for the offences punishable u/s 120-B r/w Section 420 IPC and Section 25 of Indian Telegraph Act, 1885.
2. Accused Neeraj Kumar Narang, accused Mohd. Irfan, accused Ashok Kumar Singh and accused Ashok Rai are held guilty and convicted for the substantive offences punishable under Section 420 IPC and Section 25 of Indian Telegraph Act, 1885.
3. It has been argued by Sh. S. C. Gulati, learned counsel for convict Neeraj Kumar Narang that he is 41 years of age and is not a previous convict. He has clean antecedents. He is facing agony of this trial since 1996. He is the sole bread earner of his family and he has to look after his wife and young children. It is prayed that in these circumstances, lenient view may be taken against him.
51 of 54 52
4. It has been argued by Sh. R. P. Yadav, learned counsel for convict Mohd. Irfan that he is 51 years of age and is not a previous convict. He is facing agony of the trial since 1996. He has clean antecedents. He is the sole bread earner of his family. His wife has already died and he has six small children to support. It is prayed that lenient view may be taken against him.
5. It has been argued by Sh. Anand Mishra, learned counsel for convict Ashok Kumar Singh that he is 55 years of age and is not a previous convict. He is facing agony of the trial since 1996. He has clean antecedents. He is the sole bread earner of his family. He has two minor daughters, who are yet to be married. It is prayed that in these circumstances, lenient view may be taken against him.
6. It has been argued by Sh. Anand Mishra, learned counsel for convict Ashok Rai that he is 51 years of age and is not a previous convict. He is facing agony of the trial since 1996. He has clean antecedents. He is the sole bread earner of his family and he has to look after his wife and two young children. It is prayed that in these circumstances, lenient view may be taken against him.
52 of 54 53
7. It has been argued by the learned PP Sh. J. S. Wadia for CBI that no leniency be shown to the Convicts in awarding the sentence as it will be undesirable and will also be against public interest. He further argued that accused Ashok Kumar Singh and accused Ashok Rai being public servants while working in MTNL, has caused the loss to MTNL in conspiracy with the private persons i.e. accused Neeraj Kumar Narang and accused Mohd. Irfan by tampering with the telephone lines. They should be awarded severe punishment and heavy fine may also be imposed.
8. Taking into consideration, submissions made on behalf of the Convicts and the Prosecution, I am of the view that if following sentences in this case are awarded, it shall serve the ends of justice.
9. Convict Neeraj Kumar Narang, Convict Mohd. Irfan, Convict Ashok Kumar Singh and Convict Ashok Rai are sentenced to undergo R. I. for a period of one (1) year for the offence punishable under Section 120-B r/w Section 420 of IPC and Section 25 of Indian Telegraph Act, 1885. They are further sentenced to pay a fine of Rs.20,000/- (Rs. Twenty Thousands Only) each and in default of payment of fine, each shall undergo S. I. for a further period of two months.
53 of 54 54
10. For offence punishable under Section 420 of IPC, Convict persons are sentenced to undergo R. I. for a period of three (3) years alongwith a fine of Rs.50,000/-(Rs. Fifty Thousands Only) each and in default of payment of fine, each shall undergo S. I. for a further period of six months.
11. Convict persons are sentenced to undergo R. I. for a period of one (1) year for offence punishable under Section 25 of Indian Telegraph Act, 1885. They are further sentenced to pay a fine of Rs.20,000/-(Rs. Twenty Thousands Only) each and in default of payment of fine, each shall undergo S. I. for a further period of two months.
12. It is further directed that all the substantive sentences shall run concurrently. Benefit of Section 428 Cr. P. C. be also given to all the four convicts.
13. A copy of Judgment and this order on sentence be given to the convicts free of cost. File be consigned to Record Room.
(N. K. SHARMA) SPECIAL JUDGE (PC ACT)(CBI):02 DELHI/05.11.2012.
54 of 54